New South Wales Nurses and Midwives’ Association v the Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1047

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Nurses and Midwives' Association v the Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1047 Hearing dates: 23 May 2018 Date of orders: 23 July 2019 Decision date: 23 July 2019 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: 1. Motion upheld 2. Notice to Produce set aside 3. Costs reserved Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – interlocutory proceedings –- industrial dispute – alleged misconduct - adverse findings made against employee –– remedial action proposed - notice to produce investigation report and related documents -– compliance with policy directive sought NOTICE OF MOTION to set notice to produce aside – capacity of Commission to interpret policy directive – relationship to substantive dispute proceedings –­ s 136(1)(d) orders sought – JURISDICTION – principles considered – whether notice to produce represents an abuse of process - legitimate forensic purpose considered – motion upheld – notice to produce set aside – orders made - costs of notice of motion sought - costs reserved Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Health Services Act 1997 Local Government Amendment (Amalgamations & Boundary Changes) Act 1999 Local Government Act 1993 Cases Cited: Arhil Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Attorney-General for (NSW) v Chidgey [2008] NSWCCA 65 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Alister v R (1984) 154 CLR 4, 1984] HCA 85 Becke v Commissioner of Police [2009] NSWIRComm 134 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District [2016] NSWIRComm 1047 Coombs v Patrick Stevedores Holdings Pty Ltd (2001) 103 IR 417 Crown Employees (Department of Corrective Services – Protection of Conditions of Employment) Award [2009] NSWIRComm 71 Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 FMSCEU v Energy Australia (1999) 90 IR 311 New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 Monaro County Council v Electrical Trades Union of Australia, NSW Branch (1985) 14 IR 138 Monk v Dow Corning Australia Ptd [1984] AR (NSW) 291 Notification under section 130 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union of a dispute with the Sydney City Council and others [2003] NSWIRComm 223 Police Association v NSW Police (No3) (2005) 144 IR 150 Portal Software v Bodsworth [2005] NSWSC 1115 Public Service Association of New South Wales v R v Saleam [1999] NSWCCA 86 Re Coachmakers,&c, Rail (State) Award (1983) 5 IR 255 Re Crown Employees Land Officer (Department of Lands) Award (1992) 40 IR 120 Re Dispute – Upper Hunter County Council (No 2) [1973] AR (NSW) 759 Teterycz [1997] NSWIRComm 159 Waind v Hill & National Employers' Mutual General Association Ltd [1978] 1 NSW LR 372 WorkCover Authority of NSW (Inspector Keelty) v The Crown in Right of the State of NSW (Police Service of NSW) (2000) 50 NSWLR 333 Texts Cited: NSW Health Managing Misconduct Policy Directive PD2014_042 Public Health System Nurses and Midwives' (State) Award 2017. Category: Procedural and other rulings Parties: New South Wales Nurses and Midwives' Association (applicant - respondent on the Motion)