Public Service Association and Professional Officers’ Association Amalgamated Union of NSW v Transport for NSW [2017] NSWIRComm 1078

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Transport for NSW [2017] NSWIRComm 1078 Hearing dates: 18 December 2017 Date of orders: 22 December 2017 Decision date: 22 December 2017 Jurisdiction: Industrial Relations Commission Before: Kite SC Chief Commissioner; Murphy C; Seymour C Decision: Application for interim order refused Legislation Cited: Industrial Relations Act 1996 (NSW) s130 Category: Procedural and other rulings Parties: Public Service Association and Professional Officers' Association Amalgamated Union of NSW (Appellant) Transport for NSW (Respondent) Representation: Counsel: M Gibian (Appellant)

Solicitors: McNally Jones Staff (Appellant) File Number(s): 2017/381596 Decision under appeal Court or tribunal: Industrial Relations Commission of NSW Date of Decision: 12 December 2017 Before: Commissioner Newall File Number(s): 2017/372071

Decision 1. The applicant for leave to appeal ("the appellant") notified a dispute under s 130 of the Industrial Relations Act 1996 (NSW) ("the Act"). 2. The dispute concerns a restructuring process implemented within the respondent. It was contended by the appellant that this process had a particular effect upon their member, Mr Philip Mortimer. On 23 March 2016, Mr Mortimer's position was deleted as a consequence of the restructuring. He and three other affected employees submitted Expressions of Interest in alternative Transport Commander roles and subsequently participated in a training and assessment program for these roles from 6 June 2016. 3. On 16 October 2017, Mr Mortimer was advised that he was unsuccessful in his Expression of Interest and would not be continuing in the assessment program. He was then subject to the respondent's Managing Excess Employees Policy, which required him to elect to accept voluntary redundancy within two weeks. If he did not, he would be retrenched after a 12 week redeployment period with a reduced severance payment. Mr Mortimer was originally to have made that election on or before 12 December 2017. 4. The appellant notified a dispute and the matter came before Commissioner Newall on 12 December 2017. Consistent with the requirements of the legislation, the Commissioner convened a compulsory conference and attempted conciliation. 5. It appears from transcript that in the course of conciliation, the Commissioner expressed some views as to requests "urged" upon him by the appellant. It does not appear that the Commissioner at any stage moved from conciliation into arbitration. Towards the conclusion of the proceedings, after what the Commissioner described as "extended discussions in private conference with the parties", the Commissioner made a recommendation to the respondent which it immediately accepted. The Commissioner then indicated to Mr Mortimer, as follows:: COMMISSIONER: That assists me. I can then close the matter, confident that that has been afforded to you, sir, so you now know that that recommendation's been accepted and you have till close of business on 19 December to make that election. 1. Commissioner Newall then noted, in a summary way, at least some of the views he had expressed in private conference. He said: I do not wish to canvass on the record matters that were canvassed in private conference as a means to resolve this matter but I have expressed my view to the parties in private conference about the powers the Commission has got to do certain matters and outcomes that might occur. There is no secret of this matter, in my view, that the Commission has no power to create positions for employees, it has no power to direct an agency to appoint a person to a particular position, it has no power to stand in the way of the mandated process that is to change the process which applies in circumstances where positions are abolished, which is one of either redeployment or redundancy. I invite the parties to consider and particularly you, sir, to consider your position in the light of what I said to you, both publicly and privately and, of course, in the light of those who advise you, which is not me but your association. I don't think there's anything further I can say, Mr Howes, in the matter, is there? 1. The response on behalf of the appellant was: No, Commissioner, thank you very much. The matter then concluded.