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. Appeal and Interim Orders 1. The appellant now seeks leave to appeal, what it submits is, a decision of the Commissioner made in that compulsory conference. In particular it seeks to appeal a decision by the Commissioner "to refuse to make interim orders sought by the appellant". 2. The appellant filed its Application for Leave to Appeal and Appeal on 18 December 2017, supported by an affidavit of Michael Jaloussis, solicitor for the appellant, seeking an urgent listing and interim orders. At that time the transcript of proceedings before the Commissioner was not available nor had the Commissioner published any decision or reasons in support. 3. The appeal was listed before the Full Bench on 18 December. At that time the appellant, represented by Mr Gibian of counsel, sought, in effect, an interim order of the kind refused by Commissioner Newall. 4. Mr Zeng, solicitor, for the respondent opposed the application for interim orders and had the following exchange with the Commission during his opening comments: It is certainly our view and I understand the matter has resolved by conciliation. I do not have the benefit of transcript either but I have been instructed that the dispute was terminated on the basis the parties had reached an agreement that after consideration Transport for NSW would provide additional time for the applicant employee to consider his position, that he would be provided with those additional seven days to consider his position. My instructions are that there is no application made by the appellant. They attempt to seek interim orders so that really goes to the question of urgency in this matter. KITE CC: It goes to the question of jurisdiction. If there is no decision, there is no appeal. ZENG: That is really the question. If there is no decision by the Commissioner then there is the question of why we are here today. There is clearly dispute as to whether there was agreement reached or whether there was a recommendation so there is a serious question of jurisdiction and we say that the limitation is defective 1. It became clear to the Full Bench that there was significant disagreement, not only as to whether the Commissioner had declined to make an interim order, but also whether any application for an interim order had been made and if refused what the reasons for refusal were. 2. The Full Bench considered it desirable to obtain the transcript of the proceedings before Commissioner Newall. A concession was sought from the respondent to delay the date by which the appellant's member was required to make an election between accepting voluntary redundancy or redeployment. The Commission adjourned to allow the respondent to seek instructions. On resumption Mr Zeng advised that: I have those instructions. The transport secretary is prepared to provide that extension to Mr Mortimer in relation to a decision under the policy until further directions of this Commission. Of course we wish to be heard as soon as we can in that, as I have said, this matter has dragged on somewhat since March 2016. 1. The transcript of proceedings before Commissioner Newall was obtained the following day and distributed to the parties. The Full Bench directed that the parties should make any written submissions they wished in light of the transcript by 2.00 pm on Thursday, 21 December 2017. The respondent's submissions were filed in time. The appellant's submissions did not arrive until the following morning. Nevertheless we have given consideration to them. 2. The respondent pressed its submissions as follows: 1. there had been no application for interim orders before Commissioner Newall; 2. no decision refusing that application had been made by Commissioner Newall; 3. the parties had reached an agreement in settlement of the dispute; and; 4. the appeal was misconceived. 1. The respondent advanced further submissions as to the limits of the Commission's jurisdiction on appeal and discretionary considerations relevant to the making of interim orders. 2. The appellant continued to submit as follows: 1. that: the appeal was properly founded; 2. the Commissioner had refused its application for interim orders because he considered, erroneously, that he lacked the requisite power; and 3. the dispute below had not been resolved. Consideration 1. We have carefully considered the submissions of the parties and have decided to refuse the application for interim orders. We do not propose to deal at this stage with the various arguments advanced as to the Commission's powers and jurisdiction having regard to the fact that we have not heard full argument on those matters. Our preliminary view is that there is significant doubt as to whether the Commissioner made a decision within the meaning of s 187 of the Act. Principally for that reason we consider the appeal does not have good prospects of success. 2. Discretionary considerations are also relevant. The material before the Commission, both at first instance and on appeal relating to the substantive dispute was minimal. Doing the best we can to do justice between the parties we consider the respondent's acceptance of the recommendation of the Commissioner, its concession before us and the length of time since Mr Mortimer's substantive position was declared redundant, all weigh in favour of refusing the interim relief. Direction as to Respondent's Concession 1. The concession offered by the respondent extending the time by which Mr Mortimer was required to make a decision was made to facilitate our consideration of the issue raised by the application for interim orders. That has now been resolved. Having regard to the time of year we direct that Mr Mortimer will have until 4.00 pm on Tuesday, 2 January 2018 to make his election.. Orders and Directions 1. The application for interim orders is refused. 2. The Application for Leave to Appeal and Appeal will be listed for directions before the Chief Commissioner on 18 January 2018 at 9.30 am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2017