Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Salaried Medical Officers Federation (NSW) v Secretary of Health [2018] NSWIRComm 1024 Hearing dates: 16 April 2018 Date of orders: 16 April 2018 Decision date: 16 April 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The Commission as presently constituted recuses himself from hearing and determining this matter Catchwords: INDUSTRIAL DISPUTE – dispute over the proper interpretation of an award provision – the Commission as presently constituted acted in previous proceedings before the Industrial Court as counsel for the applicant which involved interpretation of the same award provision – notifier in these proceedings relies on the judgement in the previous proceedings in support of its claim in these proceedings – counsel in the previous proceedings advised the applicant in those proceedings and advocated for an outcome similar to that sought by the notifier in the present proceedings – apprehension of bias – application by respondent that the Commission as presently constituted recuse himself – application granted Cases Cited: Re Polites; Ex parte Hoyts Corporation Pty Ltd ([1991] HCA 25 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited ([2000] NSWIRComm 65 Health Services Union NSW v Director-General NSW Ministry of Health [2013] NSWIRCOM 21 Category: Procedural and other rulings Parties: Australian Salaried Medical Officers Federation (NSW) (Notifier) Secretary of Health (Respondent) Representation: Counsel: Mr O Fagir (Notifier) Mr T J Dixon (Respondent) File Number(s): 2017/00328830 EX TEMPORE DECISION 1. In its dispute notification, the notifier, the Australian Salaried Medical Officers Federation, is seeking payment, on behalf of one of its members, pursuant to subclause 12(ix) of the Public Hospital Medical Officers Award, which is in these terms: 12(ix) Officers required to work overtime after leaving the employer's premises to provide a technology support resolution or clinical appraisal remotely without onsite presence, shall be paid for such work at the appropriate overtime rate, with a minimum payment of one hour at such rates. 1. That subclause was the subject of proceedings before Staff J in the matter of Health Services Union NSW v Director-General NSW Ministry of Health ([2013] NSWIRComm 21), in which his Honour, on 22 March 2013, made a declaration as to the proper meaning and effect of the provision . 2. In that matter I appeared as counsel for the applicant union and put submissions to his Honour as to the proper meaning and effect of the award provision which is the subject of the present proceedings. In addition, I cross-examined Dr Brett Oliver in those proceedings and Dr Oliver is a witness being called on behalf of the respondent in present proceedings. 3. The decision of Staff J in that matter was largely in conformity with the submissions which I put on behalf of the Health Services Union. The notifier in this matter relies upon the decision of Staff J in that matter and puts submissions as to the proper interpretation of subclause 12(ix) of the award, which are largely consistent with the submissions which I put in those earlier proceedings. 4. In the matter of re Polites; Ex parte Hoyts Corporation Pty Ltd ([1991] HCA 25), the High Court (Brennan, Gaudron and McHugh JJ), in issuing a writ of mandamus directing Polites DP to sit as a member of the Full Bench of Australian Industrial Relations Commission to hear and determine the matters before it, stated as follows (at [10]): A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination. 1. In the matter of WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited ([2000] NSWIRComm 65), the then President of the Commission, Wright J, on 28 April 2000, gave judgement, which included a summary of the relevant principles relating to matters such as this. Those principles included the following: For example, a prior relationship of legal adviser and client does not, generally speaking, disqualify the former adviser, on becoming a member of a tribunal or court, from sitting in proceedings before that tribunal or court to which the former client is a party. Similarly, there is no rule of practice that a judge who has previously appeared as counsel against a party who is now a litigant in a matter to come before him or her, or has appeared in peripheral litigation involving that party, should disqualify himself or herself merely on that account. However, if the judge has previously been briefed as counsel in the matter before the court he or she should not sit. Similarly, if the correctness or appropriateness of advice given to a client is a live issue for determination by the tribunal or court, the position is also very different. The erstwhile legal adviser should not sit. 1. Adopting the approach of the High Court and Wright J in those matters, I have formed the view that, having appeared as counsel for the Health Services Union in the earlier proceedings before Staff J and, no doubt, although I do not have a precise memory of this, having given advice in relation to the merits of the position that was adopted by the union in that matter, and, given the similarities, if not identicality, of the issues that arise for determination in this matter, I propose to recuse myself and return the file to the Chief Commissioner for reallocation. Orders 1. I recuse myself from hearing and determining this matter. 2. The hearing dates of 18, 19 and 23 April 2018 are vacated. 3. The Commission file is returned to the Chief Commissioner for reallocation. John Murphy Commissioner ********** Amendments 19 April 2018 - Amended jurisdiction from Industrial Court to Industrial Relations Commission. 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: 19 April 2018