Industrial Relations Commission New South Wales Medium Neutral Citation: Application by Health Secretary for Broken Hill Health Employees' (State) Award [2020] NSWIRComm 1031 Hearing dates: 17 March 2020 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Notice of motion dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for new award – motion to have application dismissed – whether application "frivolous" or "vexatious" – s 162(2)(h) of Industrial Relations Act 1996 (NSW) Legislation Cited: Industrial Relations Act 1996 (NSW) s 162(2)(h) Cases Cited: Attorney General v Wentworth (1988) 14 NSWLR 481 Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66 Category: Procedural and other rulings Parties: Health Secretary (Applicant) Broken Hill Town Employees' Union (Respondent) Health Services Union New South Wales (Intervenor) Representation: M Whitbread of counsel (Applicant) R Ferry (Respondent) M Jaloussis (Intervenor) File Number(s): 2019/00203622 Publication restriction: Nil EX TEMPORE DECISION 1. On 28 June 2019 the New South Wales Ministry of Health made an application ("Application") for the Commission to make a new award to be titled "Broken Hill Health Employees' (State) Award 2019" ("Proposed Award"). Amongst other things, the Proposed Award would replace an unregistered industrial agreement entered into between NSW Health and the Barrier Industrial Council representing the Broken Hill Town Employees' Union ("Union") in or around 1997 titled "The Far West Area Health Service Industrial Agreement". The Union opposes the making of the Proposed Award. 2. On 20 December 2019 I granted leave to the Health Services Union of New South Wales ("HSU") to intervene in the proceedings. 3. On 13 March 2020 the Union filed a notice of motion seeking an order that the Application be dismissed. The grounds and reasons contained in the notice of motion included that the Application is: 1. not in the public interest; 2. frivolous, vexatious and an abuse of process; 3. incomplete and unfounded and/or premature to the disadvantage of the Union. 1. The notice of motion was supported by an affidavit of Rosslyn Ann Ferry, the Secretary of the Union, sworn on 13 March 2020. 2. I conducted a directions hearing in this matter on 16 March 2020 at the commencement of which I was unaware that the notice of motion had been filed. On being informed of it, I determined to list it for hearing on an urgent basis, recognising the relative proximity of the hearing of the matter and the even more proximate date on which the Union was due to file and serve its evidence and submissions. If I acceded to the Union's prayer that the Application be dismissed, the time and effort spent by the Union complying with the directions made earlier would have been thrown away. 3. The matter was heard via telephone today. Ms R Ferry appeared on behalf of the Union. Mr M Jaloussis appeared for the HSU. Mr M Whitbread of counsel appeared for the Ministry. Mr Braes announced an appearance for the CFMEU. 4. There was some initial discussion as to the right of the CFMEU to be heard on the motion. This is not a matter which I proceeded to determine immediately, recognising that the CFMEU is affiliated with the Barrier Industrial Council and if nothing else, as a matter of courtesy, Mr Braes should be given an opportunity to put forward the position of the CFMEU on the notice of motion. I informed the parties that this did not necessarily mean that the CFMEU would separately be heard in respect of the substantive application. 5. As I have elected to deal with the notice of motion on an urgent basis, I do not propose to traverse in detail the evidence and submissions contained in the affidavit of Ms Ferry. Suffice it to say I have read closely its contents and have taken them into consideration in determining the matter. 6. Under s 162(2)(h) of the Industrial Relations Act 1996 (NSW) the Commission may dismiss at any stage any proceedings before it, if it considers the proceedings are frivolous or vexatious. The question of what would make an application frivolous was considered by a Full Bench of the Commission in Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66. At [16]-[19] of that decision the Full Bench traversed relevant authorities on the question before concluding as follows: "20. In light of the well-established line of authority and the ordinary meaning of the word frivolous, we are satisfied that an application under s 84 will be 'frivolous' if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter." 1. As to what would make an application vexatious was considered by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481, a case to which Mr Whitbread referred me. At 491 his Honour stated: "It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. …" 1. In light of these authorities and taking the Union's evidence and submissions at their highest, that evidence and those submissions do not disclose a basis on which I could find that the Application is frivolous or vexatious. I further do not consider that the Union's evidence and submissions demonstrate that the Application is not in the public interest or is an abuse of process. 2. The matters contained in Ms Ferry's affidavit largely go to whether the Commission ought to make the Proposed Award. Those are issues that can only be considered in light of all of the evidence. As Mr Jaloussis stated, that evidence should not be limited to that of the Ministry but should include that of the HSU and indeed the Barrier Industrial Council. It may well be the case that the Commission will conclude that the Proposed Award ought not to be made, including for the reasons advanced by Ms Ferry, but now is not the time to make that determination. 3. On the question of whether the Application is "incomplete and unfounded and/or premature" I see that two issues arise. The first is the submission by the Union that the 29 State Awards referred to in the material of NSW Health should be amended in advance of the Proposed Award being considered. Again, I do not think that this goes to the question of whether the Application is frivolous or vexatious but is more a matter to be considered on the substantive hearing of the Application. 4. I am also aware from Ms Ferry's affidavit that NSW Health has not yet served on the Union a "schedule which will map existing classifications under the 1997 Agreement to comparable classifications under relevant state awards". On this ground I make two observations. Firstly, I do not see that it provides a sufficient basis on which to dismiss the Application. Secondly, as noted by Mr Whitbread, this issue was dealt with on 16 March 2020. I directed NSW Health to serve the document on the Union by 23 March 2020 and gave the Union liberty to apply, if it needed more time than was anticipated in the current timetable to respond to the document. I am satisfied that this obviates any prejudice that might otherwise have been suffered by the Union. 5. These reasons are sufficient to dispose of the notice of motion but I would say that there is some force in the submissions made by Mr Whitbread on behalf of the Health Secretary that the application to dismiss the proceedings comes late in the day. 6. For these reasons I order that the notice of motion filed by the Union on 13 March 2020 be dismissed. Damian Sloan Commissioner ********** 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: 21 April 2020