EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — application to reopen evidentiary case — further evidence relevant to jurisdictional objection — procedural fairness — interests of justice — leave granted
EMPLOYMENT AND INDUSTRIAL LAW ─ Awards and enterprise agreements ─ Variation ─ State Wage Case ─ Paid rates adjustment ─ Appropriate measure of changes in real value of wages ─ NSW HFCE and CPI compared ─ Whether adjustment should be determined by reference to sample classifications ─ Consideration of NSW economy ─ Consideration of Government’s fiscal position and outlook ─ Effect of adjustment on bargaining ─ Quantum of adjustment for 2026–27 ─ Award Making Principles ─ Whether to consolidate Arbitrated Case Principles ─ Whether new grounds for remuneration increases should be introduced ─ Whether review of Award Making Principles should proceed incrementally or comprehensively
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Deputy President McDonald
Deputy President Howell
CRIMINAL LAW — work health and safety — offences — category 2 — where both a company and a director prosecuted — where workers and other people exposed to risk — where existing safety systems not adequate SENTENCING — relevant factors on sentence — objective seriousness — mitigating factors — plea of guilty — general deterrence — specific deterrence — remorse — post incident remedial steps OTHER — construction on masonry brick wall — inadequate ties and bracing — no exclusion zone — wall collapsed in gusting wind — no one injured
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Application dismissed
CRIMINAL LAW — Work health and safety — Offences — Category 3 — Risk of workers being exposed to high levels of nitrogen in a confined space — No risk assessments undertaken — No SWMS for task of detecting leak in transformer — Failure to provide safety data sheet for nitrogen SENTENCING — Relevant factors on sentence — Above mid-range of objective seriousness — No aggravating factors — Substantial mitigating factors — No role of specific deterrence
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – award interpretation – Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2024 – construction of cl 21.1.1 – relief duties – meaning of maintain minimum staffing – meaning of non-availability of permanent or retained firefighters – where permanent firefighters attending training – distinction between appliances and stations – whether retained firefighters directed to crew appliances while firefighters attended training were required to maintain minimum staffing – minimum staffing relates to the staffing of appliances – no entitlement to relief duties rate in disputed scenarios – application dismissed
CRIMINAL LAW — work health and safety — offences — category 2 — demolition work— where falling object struck worker — worker died — failure to properly implement and enforce existing safety and risk control measures — failure to adequately enforce exclusion zone — failure to remove object at risk of falling SENTENCING — relevant factors on sentence — objective seriousness — circumstances of mitigation — relevance of another duty holder's culpability and established safety measures to objective seriousness — high end of low range of objective seriousness
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant breached duty to take care that his or her actions or omissions did not adversely affect the health and safety of other persons EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant was responsible for providing directions and instructions to the injured worker and failed to direct the injured worker to not approach the rotating components of a drilling development rig in a mine EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant exited the cabin of a development rig in the course of mine development drilling without disengaging the rotation control lever – Where the immobiliser switches were not activated EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Penalty – Capacity to pay – Where the defendant is of modest means and any pecuniary penalty will be difficult for the defendant
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Stop bullying order — Meaning of “unreasonable” under s 144C — Unreasonable behaviour not found
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Claims the subject of previously settled proceedings — Claims released by deed of settlement — Proceeding dismissed
EMPLOYMENT AND INDUSTRIAL LAW ─ Awards and enterprise agreements ─ Variation ─ State Wage Case ─ Finalisation of variations made arising from State Wage Case 2026 [2026] NSWIRComm 16
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Deputy President McDonald
Deputy President Howell
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Remuneration — Where special circumstances justify extension of payment of temporary attraction and retention allowance for psychiatry staff specialists — New interim award made by consent
Judgment of
Chin J, Vice President
Kite AJ, Acting Deputy President
Senior Commissioner Constant
PRACTICE AND PROCEDURE – non-disclosure orders – application to vary orders made pursuant to s 164A of the Industrial Relations Act 1996 (NSW) – coronial inquest – disclosure of suppressed information for purposes of coronial proceedings – material change in circumstances – limited exception to existing confidentiality orders – variation granted.
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for variation to contract determination – consent position – variation made – effective date
EMPLOYMENT AND INDUSTRIAL LAW — Public Sector Disciplinary Appeal - Industrial disputes – disciplinary decision to assign employee to a different role - whether an appealable decision –relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – Parties to confer with respect to appropriate recommendations
CRIMINAL LAW — Work health and safety — Three offences — Duty of persons undertaking business — Director’s failure to exercise due diligence — Failure to consult, co-operate and co-ordinate activities with other duty holders — Fall from height — Ice machine compressor fell through roof while seven workers were attempting to move it — Failure to ensure roof was structurally capable of supporting compressor and workers — No safe work method — Ad hoc procedure adopted — No adequate risk assessment SENTENCING — Relevant factors on sentence — Objective seriousness — Aggravating factor —Mitigating factors — Plea of guilty — General deterrence — Specific deterrence — Extra-curial punishment — Appropriate penalties
INDUSTRIAL LAW — threatened dismissal — application under Pt 6 of the Industrial Relations Act 1996 (NSW) — ministerial driver — alleged disclosure of confidential ministerial information — case dependent substantially on circumstantial evidence and inference — no direct evidence of disclosure to journalist — disclosure allegations not established — findings of deliberate concealment, dishonesty and record deletion not established — failures to comply with media contact reporting requirements established — conduct established materially narrower than misconduct relied upon by employer — trust and confidence — threatened dismissal harsh, unjust and unreasonable — order preventing dismissal pursuant to s 89(7).
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Elevated working platform (EWP) inside of truck trailer tipped — Worker ejected from EWP — No risk assessment — No safe system of work for maintenance and repair of truck trailers SENTENCING — Relevant factors on sentence — Mid-range of objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Remorse — Early plea of guilty — Modest discount due to reduced capacity to pay a fine
CRIMINAL LAW — work health and safety — offences — category 2 — where a young worker’s arm became entangled in a conveyor belt of a mobile screen — high objective seriousness SENTENCING — relevant factors on sentence — circumstance of aggravation — vulnerable victim — avoiding double counting
EMPLOYMENT AND INDUSTRIAL LAW — Termination – Unfair Dismissal – whether dismissal of a teacher for misconduct was harsh, unjust or unreasonable – meaning of “misconduct” in s 93C of the Teaching Services Act 1980 – Dismissal harsh but not unjust or unreasonable
CRIMINAL LAW — Work health and safety — Offences — Category 3 — Mobile scaffold blown from rooftop by high winds and fell onto glass roof of neighbouring building — Deficient installation of the mobile scaffolds — Governance failures SENTENCING — Relevant factors on sentence — Mid-range of objective seriousness — No aggravating factors — Mitigating factors — Remorse — Plea of guilty — General deterrence — Application for order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Order not appropriate given seriousness of offending — Insufficient evidence for offender to make a capacity to pay submission
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Resignation – Leave – Long service leave – Whether the effluxion of an employment contract avoids the operation of section 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW) EMPLOYMENT AND INDUSTRIAL LAW – Termination – Resignation – Leave – Long service leave – Whether stress can constitute an illness within the meaning of section 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW)
CRIMINAL LAW — Work health and safety — Offences — Category 2 – Where cyclist collided with edge of road plate and died – Failure to properly install road plate — Where the offender had been warned about the hazard
CRIMINAL PROCEDURE — Application for permanent stay of Summons — Duplicity — Section 233 of the Work Health and Safety Act 2011 (NSW) — Whether there are one or two pleaded risks — Connection between two potential manifestations of the risk — Application dismissed
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker’s right hand pulled into mill roller — Absence of adequate safety systems to minimise or eliminate risk of workers coming into contact with the moving parts of plant SENTENCING — Relevant factors on sentence — Upper mid-range of objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Good corporate character — Remorse — Early guilty plea — General deterrence — Adverse publicity order
JURISDICTIONAL OBJECTION – Entertainment Industry Act 2013 (NSW) – s 20 – entertainment industry hirer – performer – recorded performances – recording agreement – publishing and merchandise agreement – whether respondent contracted performer for purpose of a performance – definition of performance – recorded performance for financial benefit – obligation to record and deliver Commitment Album – acquisition and exploitation of intellectual property rights – whether rights acquisition arrangement excludes hirer status – dispute concerning royalties, accounting and set-off – connection between dispute and statutory relationship – Notice of Motion dismissed.
EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal claim – Conciliation – In-principle agreement including parties would “enter a” deed of release – At time acceptance communicated, Respondent advised Applicant needed to seek legal advice to avoid impact on extant workers compensation claim – Applicant refused to sign deed of release after having taken advice – Respondent sought dismissal or permanent stay in light of in-principal agreement – Commission found not common intention to be immediately bound by in-principle agreement – Motion dismissed.
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker’s hand drawn between two rollers and crushed SENTENCING — Relevant factors on sentence — Reduced moral culpability — Substantial mitigating factors — Specific deterrence substantially diminished — Reduced capacity to pay
EMPLOYMENT AND INDUSTRIAL LAW — Appeals — Removal of police officer under s 181D of Police Act 1990 (NSW) — Allegations of misconduct — Leave to appeal granted — Whether procedural fairness was denied — Not established — Witnesses relied upon to remove officer not called to give evidence before Commission — Appropriate weight to be given to evidence on which challenged decision was made — Sexual harassment established — Failure to establish removal was harsh unreasonable or unjust — Appeal dismissed
Judgment of
Taylor J, President
Kite AJ, Acting Deputy President
Schmidt AJ, Acting Deputy President
EMPLOYMENT AND INDUSTRIAL LAW ─ Awards and enterprise agreements ─ Variation ─ State Wage Case ─ Adopted National decision in relation to minimum rates awards
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Deputy President McDonald
Deputy President Howell
EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal claim - Parties entered into a heads of agreement then a Deed to settle the claim – Applicant does not dispute claim has been settled – Applicant seeks enforcement of the Deed – continuation of the proceedings is an abuse of process – order made permanently staying the proceedings.
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Section 19 of Industrial Relations Act 1996 (NSW) — Commencement of award review proceedings — Conduct of award review proceedings
Judgment of
Taylor J, President
Senior Commissioner Constant
Commissioner Webster
Commissioner McRobert
EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement – nominal term of agreement expired before it was signed and the application for approval was filed – requirement of s 325 that “the agreement complies with all relevant statutory requirements – nominal term is a statutory requirement - s 328(2) requires “The nominal term of a contract agreement must not be less than 12 months nor more than 3 years” – “not less than 12 months” must have some practical meaning - agreement when signed and when application filed did not have a term of at least 12 months - application for approval refused.
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Crane fitted on truck operated by unlicenced worker — Contact with live overhead powerlines — Offender a small business — Whether payment of prosecutor’s costs is relevant to penalty SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Whether principal contractor at construction site and supplier of cement products engaged in common criminal enterprise — Where culpability of offenders was comparable — Different sentences imposed to reflect principal contractor’s substantially reduced capacity to pay fine
UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - application not granted.
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements – enterprise agreement approved – enterprise agreement terminated – Principles for Approval of Enterprise Agreements
APPEALS —Time limits — Extension of time — Appeal filed out of time — Discretion to grant leave to allow more time to appeal where justice requires — Short delay – No prejudice to Respondent – Application for leave to appeal and appeal devoid of merit – application to extend time refused.
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker fell three metres through void — Inadequately covered skylight penetrations — Failure to maintain exclusion zone — Mid-range of objective seriousness
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Interim award EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Health professionals EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Partial resolution of dispute
CRIMINAL LAW — Work health and safety — Offences — Category 3 — Unguarded grain auger — Risk of body part coming into contact or becoming entangled — Absence of a guard — Inadequate safe work system — Inadequate instruction or training — Inadequate supervision — Person conducting business or undertaking uninvolved in day-to-day operations of business SENTENCING — Relevant factors on sentence — High objective seriousness — Offender had regard for duty to ensure safety of workers — Duty of a person conducting a business or undertaking when operating business remotely — General deterrence — No aggravating factors — Mitigating factors — Remorse — Early guilty plea — Whether sufficient evidence of cooperation with authorities — Adverse publicity order — Application for no conviction recorded — Relevant factors on no conviction application — Adverse publicity order
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Fall from height — Worker sustained minor facial injuries — Grossly deficient construction of scaffold — Failure to have scaffold inspected by a competent person — Workers not appropriately licensed — Absence of documentation — No training provided to worker SENTENCING — Relevant factors on sentence — Objective seriousness — No aggravating factors — Mitigating factors — No prior convictions — Pleas of guilty — Assistance to authorities — General deterrence — Reduced significance of specific deterrence — Moderation of fine for principal contractor — Limited capacity to pay a fine — Insufficient financial evidence before Court
APPEALS — Leave to appeal — Leave to appeal an interlocutory decision— Principles governing leave to appeal an interlocutory decision Whether reasons were adequate — Assistance to self-represented litigants — Duty to afford a fair hearing — Use of generative AI in proceedings — Leave to appeal refused
Judgment of
Taylor J, President
Commissioner Webster
Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement – the agreement for which approval was sought was not an agreement under s 322 of the Industrial Relations Act 1996 as it was made between an association of contract carriers on the one hand, and two principal contractors on the other – application for approval dismissed.
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where a construction worker fell through void in circumstances of inadequate fall control measures and supervision EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where a construction worker suffered serious injuries to his lower limbs including multiple spiral fractures, comminated intra-articular fractures, disruptions of the ankle mortise, and avulsion fracture of the dorsal navicular bone PRACTICE AND PROCEDURE – Obligation upon legal practitioners to give proper consideration to the nature and extent of documentary evidence to be tendered to the Court
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 3 – Where a worker was unknowingly exposed to chlorine gas poisoning – Lack of training and signage – Defendant otherwise a safety-conscious company with a strong subjective case
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Stop bullying order — Meaning of “at work” — Notice of motion seeking summary dismissal — Meaning of “bullied at work” under s 144C — No reasonable cause of action disclosed
CONSTITUTIONAL LAW — Commonwealth and State relations — Inconsistency of laws — Where inconsistency claimed between s 106 of the Industrial Relations Act 1996 (NSW) and both s 7(1)(c) of the Independent Contractors Act 2006 (Cth) and s 536JP(1)(c) of the Fair Work Act 2009 (Cth) — Where Commonwealth Acts expressly exclude State laws enabling court to vary or declare void services contracts on unfairness ground — Inconsistency found — Proceedings under s 106 of the Industrial Relations Act 1996 dismissed for want of jurisdiction EMPLOYMENT AND INDUSTRIAL LAW — Terms — Unfair terms — Whether application under s 106 of the Industrial Relations Act 1996 (NSW) to declare void or vary a contract of carriage for purposes of Chapter 6 of the Industrial Relations Act — Where additional drivers engaged outside prescribed circumstances — Held no contract of carriage CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where proceedings brought under State law inconsistent with Independent Contractors Act 2006 (Cth) — Substantive proceedings dismissed for want of jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Application for an order to stop bullying — workers’ compensation claim — employee not fit for any work — application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Application for recovery of money — Failure to pay accrued long service leave to 13 employees — No transmission of business — Statutory rights — Set off — Orders made for recovery of long service leave pay
CRIMINAL PROCEDURE — Stay of proceedings — Permanent — Whether prosecutor's pleaded case identifies measures alleged to be "reasonably practicable" within the meaning of s 18 of the Work Health and Safety Act 2011 (NSW) — Distinction between particulars and evidence or inferences drawn from evidence — Whether continuation of the proceedings would result in an unfair trial – Motion dismissed CRIMINAL PROCEDURE — Stay of proceedings — Temporary stay — Application for further and better particulars — Whether defendant entitled to further and better particulars of how the prosecutor will seek to prove an essential element of the offence — Where prior response to request for further and better particulars sufficiently reveals boundaries of the case the defendant must meet at trial — Motion dismissed — Prosecution directed to provide amended particulars
APPEALS — Leave to appeal — Principles governing — public sector worker dismissed for poor performance - Unfair dismissal — principles relevant when proceedings involve a self-represented litigant - Practice Note 33 – Use of artificial intelligence in litigation – No sufficiently arguable case of error – No issue of general importance warranting leave to appeal in the public interest - Leave to appeal refused
Judgment of
Acting Justice Kite, Acting Deputy President
Commissioner O’Sullivan
Commissioner Howell
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for approval of enterprise agreement — Mutual gains bargaining — Application approved — No issue of principle.
EMPLOYMENT AND INDUSTRIAL LAW — Application for recovery of money and orders for civil penalties — Underpayment of wages — Failure to pay accrued annual leave and long service leave — Breaches of the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) — Owner involved in contraventions — Orders made
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where an unsupervised young and inexperienced worker’s leg became entangled in a mill auger
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal — Application for interlocutory order restraining dismissal — Power to make interlocutory restraining order — Consideration of procedure if restraining order not make and employee subsequently dismissed — Whether Applicant has prima facie case — Balance of convenience — Interlocutory restraining order made EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Statutory Rights — Power to make interlocutory order in victimisation proceeding
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 3 – Where both a corporation and its director prosecuted – Where worker exposed to crystalline silica and was not wearing appropriate personal protective equipment – Where defendants failed to maintain systems to ensure that dust generated from fabricating engineered stone was not circulated in the workplace – Assessment of relative culpability of each Defendant
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant knew of the risk and the remedial steps which could have minimised that risk EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Worker demolishing garage, standing on a plank which is resting across the roof, falls 2.5-3.5m into skip bin with debris and suffers spinal and arm fractures
EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment – Variation made by consent – No issue of principle.
CRIMINAL PROCEDURE — Alleged offences committed by two accused persons arising out of the same circumstances — Whether there should be separate trials or a joint trial — Not in the interests of justice for trials to be heard and determined together — Motion dismissed
CRIMINAL PROCEDURE — Costs — In summary proceedings — Powers of the Industrial Court to order costs — Costs of and incidental to appearances at directions hearings — Whether power to order costs in summary jurisdiction confined by circumstances stated in Criminal Procedure Act 1986 (NSW) Ch 4 Pt 5 Div 4 — Whether general discretion to award costs under s 181 of the Industrial Relations Act 1996 (NSW) excluded — Whether matter “adjourned” for purposes of s 257F(1) of the Criminal Procedure Act — Whether costs were “additional costs” for purposes of s 257F(2) of the Criminal Procedure Act — motion dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Stop bullying order — Meaning of “at work” — Whether worker “at work” while absent and not performing duties — Conduct occurring outside workplace
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Farmhand operating quad bike — Worker thrown from vehicle — No helmet — No rollover protection — Death of worker — High range of objective seriousness — Substantial mitigating factors — Extra-curial punishment as mitigating consideration
EMPLOYMENT AND INDUSTRIAL LAW – Public Sector – Police – Application for review of removal order – Creation of false or misleading Intelligence Report – Unauthorised access to Computerised Operational Policing System database – Whether finding of dishonest state of mind necessary to justify removal – Where member of public posted interaction with officer’s colleague on TikTok – Where officer motivated by improper purpose of retaliation – Whether removal otherwise harsh, unreasonable or unjust – Application dismissed
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker hit by reversing forklift — Worker sustained serious injuries to left foot — No adequate system to separate people and plant — No documented SOP — No traffic management plan — No adequate instructions or training provided to workers — Director failed to comply with duty — Significant absence of due diligence — Director on notice of risk because of previous incident SENTENCING — Relevant factors on sentence — Objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Unlikely to reoffend — Remorse — Plea of guilty — General deterrence — Reduced significance of specific deterrence — Application for order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — No exceptional circumstances justifying order — Limited capacity to pay a fine — Insufficient financial evidence before Court — Adverse publicity order — Educative function — Potential to prevent similar incidents in businesses in region
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Workers exposed to risk of death or serious injury SENTENCING — Relevant factors on sentence — Objective seriousness — Exculpatory factors reduce moral culpability — No aggravating factors — Mitigating factors — Unlikely to reoffend — No evidence offender has shown remorse — No assistance to authorities beyond what was required — Limited relevance of general and specific deterrence — Limited capacity to pay a fine — Insufficient evidence before Court
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Remedial tree felling works on slope — Tree fell onto basket of elevated work platform — Worker catapulted out of basket onto road — No spotter — No exclusion zone — No harness — Approaching mid-range of objective seriousness — Offender in process of deregistration — Significant mitigating factors
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Whether the requirement met for an enterprise agreement to describe the employees for whom it is made — Consideration of tests to be applied when enterprise agreement applies to some but not all the employees of an employer — Application approved
EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Application for Leave to Amend –Whether necessary in the interests of justice to allow amendments – Whether sufficient reason to allow claims made out of time – No evidence led as to reason why claims made out of time – Consideration of obligations of litigant-in-person CIVIL PROCEDURE – Powers of Court or Tribunal to require production of documents protected under the Public Interest Disclosure Act 2022 (NSW)
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Section 19 of Industrial Relations Act 1996 (NSW) — Commencement of award review proceedings — Conduct of award review proceedings
Judgment of
Taylor J, President
Senior Commissioner Constant
Commissioner Webster
Commissioner McRobert
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Health Professionals — Arbitration pursuant to ss 90 and 91 of the Health Services Act 1997 (NSW) in respect of Visiting Medical Officers — Application for non-disclosure orders — Nature of arbitrator’s statutory functions and duties — Where arbitrator’s duty to act judicially attracts obligation to apply the principle of open justice CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders — Power to conduct proceedings in public or private under s 94(2) of the Health Services Act 1997 (NSW) — Whether an implied power to make non-disclosure orders — Where power to make non-disclosure orders a necessary incident of express powers to conduct arbitration in whatever manner the arbitrator sees fit, including in private — Whether necessary in the interests of justice for non-disclosure orders to be made — Non-disclosure orders made
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Local Government Sector - Remuneration – Equal remuneration – consent award – no issue of principle.
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Electric shock from energised busbar — Electrical work performed by unqualified worker — Mid-range of objective seriousness — Offender no longer operates in industry — Whether specific deterrence is relevant to penalty — Capacity to pay — Whether payment of prosecutor’s costs is relevant to penalty
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Workers attempting to clear blockages in melter — Uncontrolled release of hot bitumen from the output pipe — Worker sustained burns — Heat guard on melter had been removed — Inadequate safety measures — Requirement for workers to wear PPE not enforced — Injured worker engaged to perform traffic management role SENTENCING — Relevant factors on sentence — Objective seriousness — Aggravating factor — Life-changing injuries sustained — Mitigating factors — Remorse — Plea of guilty — Cooperation with authorities — General deterrence — Insufficient evidence before Court to satisfy limited capacity to pay a fine — Comparable cases
EMPLOYMENT LAW - Public Sector Disciplinary Appeal – Numerous allegations against Zone Manager – Some allegations not made out and others were – Approach in relation to appropriate level of disciplinary action – Disciplinary action of reduction in 4 levels overturned – Determined alternate disciplinary action of demotion of 1 level appropriate
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – employer insurance contributions – breach – interpretation – whether an enterprise agreement can entitle a former employee to employer superannuation contributions in relation to income protection payments
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Director’s duty to exercise due diligence — Capacity to pay
APPEALS — procedure — parties on appeal — interveners — whether Industrial Court has implied power to permit non-party intervention — whether prospect of the Court’s decision being applied in future litigation constitutes a sufficient interest — intervention refused CIVIL PROCEDURE — representation — amicus curiae — Industrial Court’s power to appoint an amicus curiae — whether non-party’s anticipated submissions assist the Court and are materially different from those advanced by the parties — leave granted
CRIMINAL PROCEDURE – application to amend Summons – limitation period – amendments clarify terms of Summons – amendments clarify scope of measures – amendments better expose the case defendant must meet – no unfair prejudice to defendant – fair trial – stage of proceedings – costs reserved
APPEALS — Employment and industrial law — Awards — Interpretation — Meaning of “temporary employees” in the Health Industry Status of Employment (State) Award 2023 — Whether doctors-in-training engaged on fixed term contracts are temporary employees — Whether preference given to fixed term employment contrary to award — Whether proviso in definitions section of award to not preference fixed term contracts an enforceable obligation or aspiration — Approach to determining whether fixed term contracts were given preference — Leave to Appeal — Whether issue has wider implications — Leave Granted — Appeal dismissed
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent — Lack of care and diligence in putting necessary evidence before the Commission — Variation made providing for registration and recognition of professional engineers
CRIMINAL LAW — work health and safety — offences — category 2 — worker injured while cleaning conveyor belt of Mobile Screen — workers exposed to risk of death or serious injury — failure to take the reasonably practicable steps to ensure the health and safety of workers — failure to implement reasonably practicable measures for the cleaning of mud build-up in the Mobile Screen — director’s duty to exercise due diligence — particular to clearly identify act or omission constituting contravention
EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment – Variation made
CRIMINAL LAW — work health and safety — offences — category 3 — mobile scaffolds blown from rooftop by high winds and fell onto glass roof of neighbouring building — failure to manage hazards and/or risks associated with scaffolds — director’s failure to exercise due diligence — failure to make enquires, provide supervision or conduct site inspections — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — no aggravating factors — mitigating factors — remorse — plea of guilty — general deterrence — lack of capacity to pay a fine — s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — offender’s character — offender’s health — other matters proper to consider — offender’s ability to travel overseas
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Applications for new awards for nurses, midwives, and assistants in nursing — Finalisation of awards — Awards made
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Webster
CRIMINAL LAW — work health and safety — offences — category 2 — worker positioned forward of the Jumbo’s jacks — designated high-risk task — worker’s left arm entangled on the rotating drill steel — worker sustained serious injuries — common practice for workers not to use the boom immobilisation switches — poor implementation of safety procedures — deficiencies in training — no adequate supervision of work SENTENCING — relevant factors on sentence — objective seriousness — foreseeability of risk — safety systems and procedures were entirely dependent on worker compliance — systems routinely ignored by workers — aggravating factors — life-changing injury — mitigating factors — eight years since prior conviction — change in management resulted in overview of safety systems and processes — good character — remorse — acceptance of responsibility — plea of guilty — general deterrence
CRIMINAL PROCEDURE — suppression and non-publication orders — whether satisfied that non-disclosure orders are in the interests of justice — non-disclosure orders made
APPEALS — Leave to appeal — Principles governing — Teacher who was medically retired — Unfair dismissal — Insufficient doubt to warrant reconsideration on appeal — Re-litigation of matters raised at first instance — Leave to appeal refused
Judgment of
Taylor J, President
Commissioner O’Sullivan
Commissioner McRobert
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage - Application for variation of Contract Determinations to capture, amongst other things, “expansion contracts” as defined in the Industrial Relations Amendment (Transport Sector Gig Workers and Others) Act 2025 – concurrent proceedings in Fair Work Commission for employee-like worker minimum standard orders under s 536JZ of the Fair Work Act 2009 (Cth) – s 321A of the Industrial Relations Act 1996 (NSW) – meaning of “application”, “reasonable likelihood”, and “same” in s 321A(1)(b) of the Industrial Relations Act - adjournment of NSW proceedings ordered for a reasonable period
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Variation of Award pursuant to mechanism contained in the Award
STATED CASE – prosecution under the Work Health and Safety Act 2011 (NSW) (WHS Act) – whether trial court has identified the correct legal test – exercise of discretion under s 5AE of the Criminal Appeal Act 1912 (NSW) – questions of law referred to Full Bench to assist with determining construction of the WHS Act COSTS – criminal proceedings – costs incurred by defendant when prosecutor reformulated questions several times – whether the matter was adjourned – whether costs were “additional costs” – whether adjournment was because of unreasonable conduct or unreasonable delays of prosecutor – defendant’s costs not costs of adjournment due to unreasonable conduct of prosecutor – no order for costs made
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Whether necessary in the interests of justice for non-disclosure orders to be made to protect confidential commercial information — Confidential information comprised rates charged by suppliers to local council obtained through tender process — Non-disclosure orders made
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for new award for tradespersons employed by Fire & Rescue NSW — Remuneration Claim — Consideration of the fiscal position and outlook of the NSW Government — Consideration of the state of the economy of NSW — Appropriate increase to account for the changing value of money over time — Undervaluation of rescue equipment technicians for historical reasons — Consideration of how to address historic undervaluation — Work Value Changes Principle — Determination of appropriate datum point for assessment of work value changes — Consideration of various claimed changes to the value of work performed by tradespersons and assessment of the value of those changes — Attraction and Retention — Whether adjustments to remuneration should be made to help attract and retain staff — Claim for increase in apprentice rates, relative to rates paid to qualified tradespersons rejected as Union had not established a case for change pursuant to Arbitrated Case Principles — Claim for ‘test and tag’ allowance allowed as new work performed from time to time only by qualified employees — Claim for meal allowance on return journey rejected as no case established for change to the status quo pursuant to Arbitrated Case Principles, but clause to be amended to reflect current practice — Discussion of practice of referencing other awards in an award term — Discussion of practice of inclusion of “no extra claims” clauses in arbitrated awards
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission - non-disclosure orders - s 164A of the Industrial Relations Act 1996 - non-disclosure orders made – no issue of principle.
EMPLOYMENT AND INDUSTRIAL LAW - Industrial Relations Commission - Jurisdiction – Unfair Dismissal – Application of Part 6 of Chapter 2 – casual employee employed for a short period – Applicant worked 9 shifts over a period of employment of 5 weeks and 1 day, in the context of ongoing casual employment as a driver facilitating a community bus service - Application dismissed for want of jurisdiction.
CRIMINAL LAW — work health and safety — offences — category 2 — application to dismiss proceedings prior to the close of the prosecution case — whether defendant owed a duty to injured worker under s 19(1) Work Health and Safety Act 2011 (NSW) (WHS Act) as pleaded — interrelationship of ss 7 and 19(1) of the WHS Act — statutory construction of WHS Act — principles of statutory interpretation — purpose of WHS Act is to provide for a nationally consistent framework to secure the health and safety of workers and workplaces — to fall within the ambit of a s 19(1) worker, the person to whom the duty is owed must, in some capacity, be carrying out work for the PCBU duty holder while at work in their business or undertaking — other persons whose health and safety may be impacted are protected by s 19(2) of the WHS Act — when viewed in the context of the scheme of the WHS Act as a whole and because of the definition of “worker” in s 7, the worker referred to in s 19(1) must be carrying out work, in some capacity, for the duty holder conducting a business or undertaking — worker in this case not a worker for the defendant under subss 19(1)(a) or (b) of the WHS Act — defendant did not owe a duty to worker under s 19(1) of the WHS Act — prosecution dismissed — costs awarded to defendant
EMPLOYMENT AND INDUSTRIAL LAW – public sector – determinations – arbitration pursuant to ss 90 and 91 of the Health Services Act 1997 in respect of Visiting Medical Officers – application to amend claim for lump sum payments referrable to services provided prior to the making of the determination – discretion of arbitrator to allow amendment of application – nature of arbitrator’s statutory functions and duties CIVIL PROCEDURE – pleadings – amendment – late application for amendment – claim arising after commencement of arbitration pursuant to ss 90 and 91 of the Health Services Act 1997 – leave to amend granted
EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — penalty — factors to be considered when imposing penalty — single course of conduct — deliberate defiance of dispute orders — motivation for organising strike action — strike action in response to perceived breach of commitment to engage in mutual gains bargaining under Chapter 2A of the Industrial Relations Act 1996 (NSW) — nature of mutual gains bargaining — incompatibility between industrial force and mutual gains bargaining — agreed penalty range — penalty imposed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – allegations of misconduct – one aspect of misconduct proven – whether dismissal harsh, unreasonable or unjust – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Applications for new awards for nurses, midwives, and assistants in nursing — Remuneration claim — Gender Undervaluation — Consideration of the fiscal position and outlook of the NSW Government — Consideration of the state of the economy of NSW — Appropriate increase to account for the changing value of money over time — Whether awards undervalued on the basis of gender — Approach to determining gender undervaluation claim — Assessment of the invisible skills of nurses — Work Value Changes Principle — Detailed consideration of various claimed changes to the work value of nurses — Approach to consideration of attraction and retention — Interstate rate comparison — Consideration of overall appropriate remuneration increase in light of changing value of money, gender undervaluation, and work value changes — Claim for increased sick leave — Sick leave claim rejected — Claim for award clause requiring compliance with flexible work arrangements policy — Flexible work arrangements claim rejected — Claim for cribbing away allowance — Where two group of workers, working side by side, are affected by the same detriment, but only one group has detriment addressed by an allowance — Cribbing away allowance claim allowed
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Webster
CIVIL PROCEDURE — Parties — Persons under legal incapacity — Application to remove tutor —Applicant found to be under a legal incapacity — Application refused EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Industrial Relations Act 1996 (NSW) — Whether single member can dispose of proceedings under s 190A APPEALS — Procedure — Time limits — Out-of-time appeal of previously appealed decisions — Leave to appeal refused
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – 34 allegations of misconduct – Reinstatement impracticable – Application under s 84 of the Act dismissed VICTIMISATION – Victimisation application – Application under s 213 of the Act dismissed
CIVIL PROCEDURE — Non-disclosure orders — Whether in the interests of justice — Inadequate evidence of risk of harm to Appellant — Non-disclosure orders not made — Application for stay of proceedings — Pending proceedings in other court — Proceedings in other court not commenced — No crossover with any extant proceedings — Stay not granted — Summary disposal — Dismissal of proceedings — Want of due despatch — Evidence of medical incapacity not sufficient to explain delay in prosecution — Poor prospects in substantive case — Prejudice to Respondent outweighs prejudice to Appellant — Proceedings dismissed
Judgment of
Taylor J, President
Commissioner Muir
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Variation of Award pursuant to mechanism contained in the Award
STATUTORY INTERPRETATION — definitions — interpretation of definition by reference to term defined — meaning of “casual employment” pursuant to s 43(4) of the Government Sector Employment Act 2013 (NSW) — whether Community Services Field Officer employed to carry out irregular, intermittent, short-term, urgent or other work as and when required — applicant entitled to declaratory relief
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal —medical incapacity – inherent requirements – redeployment obligations – no suitable alternative position – Applicant provided with light duties for over two years – Change of Goal meeting more than a year prior to dismissal – no evidence of suitable and available role - no economic loss since termination - application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent — Importance of establishing all parties consent to variation and providing evidence of consent
EMPLOYMENT AND INDUSTRIAL LAW - Termination – Statutory rights – Unfair dismissal – performance and conduct – complaints from Court and Tribunal about interpreting services – responses to feedback inappropriate - applicant unwilling to engage constructively with feedback – applicant’s evidence inconsistent because of unchecked use of generative artificial intelligence – non-compliance with requirement to produce documents – lack of confidence justified - dismissal not harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Offences — Category 2 — Failure to establish and maintain exclusion zone — Worker struck by falling tree branch — Worker sustained serious injury SENTENCING — Relevant factors on sentence — Objective seriousness — Relevance of worker culpability and established safety measures to objective seriousness — Lower to mid-range of objective seriousness — Aggravating factors — Serious injury — Mitigating factors — Remorse — Plea of guilty — General and specific deterrence — Capacity to pay
EVIDENCE — Admissibility — Expert opinion evidence — Late notice of reliance on witnesses as experts — Non-compliance with practice note — Whether witnesses have relevant specialised knowledge — Whether expert opinions expressed are based on specialised knowledge — Whether the truth of assumptions need to be proved to admit evidence — Evidence admissible
CRIMINAL LAW — work health and safety — offences — category 2 – where forklift drove over worker that was walking in front to stabilise the load – where worker suffered serious physical injuries – obvious risk of injury – significant objective seriousness – where worker young, vulnerable and inexperienced – wholly inadequate safety system in place at the time – where Defendant subsequently took comprehensive steps to put an appropriate system in place – Defendant’s strong subjective case
EMPLOYMENT AND INDUSTRIAL LAW - Industrial Relations Commission - Jurisdiction – Whether Commission has jurisdiction to hear an application alleging unfair dismissal by a public service senior executive
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission - non-disclosure orders - s 164A of the Industrial Relations Act 1996 - non-disclosure orders made – no issue of principle.
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public sector disciplinary appeals — Teachers — Form of final orders pursuant to ss 100C(2) and 100D of the Industrial Relations Act 1996 following successful appeal — Ability to order reinstatement or re-employment of teacher when teacher’s accreditation to teach is suspended — Whether orders should be made for backpay under s 100D(1)(b) — Relevant factors to be considered — Need for specified amount of any payment under s 100D(1)(b) to be stated in final order — Whether order should be made for period of employment to be taken not to be broken under s 100D(1)(c) in circumstances where teacher’s accreditation has been suspended
CRIMINAL PROCEDURE — Stay of proceedings — Power to prevent abuse of process — Double jeopardy — Alleged WHS offence arises out of same incident as earlier Food Act convictions — Offences charged not “substantially the same” — Proceedings not oppressive or unfair — Any unfairness can be addressed through evidentiary rulings — Any crossover of conduct can be addressed in sentencing — Public interest considerations — Role of court — Independence of prosecutor
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Freedom from victimisation of potential employee —Exclusion under Government Sector Employee Act 213 (NSW) — Whether Commission can make an order pursuant to Industrial Relations Act 1996 (NSW), s 213
CRIMINAL LAW — work health and safety — offences — category 2 — trench wall collapse causing worker to be partially buried — workers exposed to risk of death or serious injury — failure to take the reasonably practicable steps to ensure the health and safety of workers — failure to give specific instructions prohibiting workers from undertaking work in the trench until the trench was properly benched, battered and/or appropriately shored — failure to implement control measures set out in the SWMS to eliminate or minimise the risks associated with working in trenches
AWARDS - consent award – recission of award – amendment to existing award – application for Removal of a Party to an Award – orders made to facilitate agreement reached by parties in partial resolution of industrial dispute proceedings – Fisheries Technicians and Hatchery Staff
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Orders sought by Applicant akin to “Notice to Admit” procedure prescribed in UCPR rr 17.3 and 17.4 — No basis for orders to be made
CRIMINAL LAW — work health and safety — offences — category 2 — worker slipped between rollers of conveyor — working on or near an unguarded moving part — worker sustained serious injuries — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — serious injury — mitigating factors — remorse — response to the incident — plea of guilty — general deterrence — capacity to pay
EMPLOYMENT AND INDUSTRIAL LAW — Victimisation claim — Whether parties entered into a binding agreement to settle the claims –Where Applicant contended that the Respondent’s acceptance was conditional — Evidence established the Respondent accepted the applicant’s offer and a binding agreement was formed
EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Jurisdiction — Establishing a detriment to invoke reverse onus — Reverse onus now objective EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Leave to amend application — Prejudice to respondent
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Conciliation and arbitration — Effect of a recommendation made in conciliation on a party’s obligation to preserve the status quo EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation — Whether award should be varied on employer’s application to allow re-assignment of a role to a higher classification pursuant to express provision in the Award — Matters to be considered where Union’s cross-application for re-assignment to higher classification than sought by the employer in circumstances where no express provision in the Award permitting such an application to be made
EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – interpretation – application for overtime for attending training courses – intervening application for declarations pursuant to s 154 of the Industrial Relations Act 1996 (NSW) – applications dismissed
CRIMINAL LAW — work health and safety — offences — category 2 — electrocution — no adequate review of the risk assessment and Safe Work Method Statement prepared by contractor — Safe Work Method Statement deficient and did not identify the risk of electrocution — offender should have known that workers did not have high risk work licences in relation to the work carried out at the site — no adequate supervision of work — moral culpability reduced by the failings of the contractor who the offender reasonably relied on, but must be viewed in light of the clear warning signs that the contractor’s operations at the site were unsafe — objective seriousness above the mid-range SENTENCING — relevant factors on sentence — mitigating factors — remorse — timing of guilty plea — deterrence — reduced need for specific deterrence
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for approval of enterprise agreement – Application approved – No issue of principle.
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for approval of enterprise agreement – Application approved – No issue of principle.
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for interim contract determination – Jurisdiction of Commission EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for interim contract determination – Exercise of Commission’s discretion
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Costs — Whether proceedings instituted vexatiously or without reasonable cause
EMPLOYMENT AND INDUSTRIAL LAW — unfair dismissal – threatened dismissal – interim order – power to make interim order restraining dismissal – interim order granted
EMPLOYMENT AND INDUSTRIAL LAW – Termination -Unfair dismissal - decision to dismiss harsh in particular circumstances of case -reinstatement impracticable.
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers – Appeal from Industrial Registrar – Not possible to file Application to have Commission to exercise Commission’s initiative
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Changes to basis for ‘reverse onus’ case against victimisation claim — subjective and objective bases EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Victimisation — Consideration of the ‘reverse onus’ the IR Act in circumstances where decision maker did not give evidence
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — employees parties to the enterprise agreement — net detriment test – application of State awards — Principles for approval of enterprise agreements
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Application of Interim Award beyond specified term — Interim Awards continue to operate until rescinded by the Commission
EMPLOYMENT AND INDUSTRIAL LAW — contract — terms — unfair terms — Notice of Motion to strike out application for want of proper pleading — applicants must plead a case with sufficient particularity for the opposing party to understand and address the issues raised and the matters which the Court must determine to be clearly defined — claim is deficient as it requires the Court to determine the extent of the unfairness to the applicant and craft an appropriate remedy — operation of s 106 has historically been very broad and has been held as being able to sustain claims dealing with psychological harm— claim was not manifestly groundless, frivolous or vexatious or an abuse of process — claim not struck out — claim cannot proceed in the form presently pleaded — claim stayed — costs awarded to respondent
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Applications for new awards for permanent and retained firefighting staff — Determination of matters which were not determined by primary decision following conciliation — Coverage and quanta of rescue allowances — Coverage of Remotely Piloted Aircraft Systems allowance — On call and disturbance allowance — Payment for additional hours worked by executive officers — Promotional pathway clauses
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner McDonald
CONTRACT OF CARRIAGE – Termination of contract – Application for reinstatement of contract or compensation – Whether reinstatement available – Reinstatement not practicable – Compensation ordered
EMPLOYMENT AND INDUSTRIAL LAW —termination — statutory rights — unfair dismissal — termination of employment for unsatisfactory performance — whether dismissal of temporary employee in a manner not permitted by Government Sector Employment (General) Rules 2014, r 36 and Government Sector Employment Act 2013 (NSW), s 68 was unfair — leave to adduce fresh evidence refused — leave to appeal granted and appeal upheld — compensation ordered
Judgment of
Chin J, Vice President
Schmidt AJ, Acting Deputy President
Commissioner Muir
CRIMINAL LAW — work health and safety — offences — category 3 — demolition work — subfloor wall collapsed into external wall of neighbouring property — director had no building or construction qualifications — director uninvolved in day-to-day operation of site — director relied on third parties for building, demolition and work, health and safety expertise — failed to ensure demolition work occurred in accordance with methodology set out in Structural Report — moral culpability reduced by the fact that director relied on appropriately qualified professionals, but not reduced by the director’s limited ability to communicate in English — objective seriousness below the mid-range, but not at the bottom of the range SENTENCING — relevant factors on sentence — De Simoni principle — Court disregarded evidence of damage to the home, being evidence which establishes that the occupying family was exposed to a risk of serious injury or death SENTENCING — relevant factors on sentence — mitigating factors —deterrence — reduced need for specific deterrence
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Non-disclosure orders — Whether necessary in the interests of justice for non-disclosure orders to be made — Non-disclosure order made
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment and to varying the time within which a Principal Contractor is to provide to Contract Carriers, a copy of any variation to the Determination – Variation made
EMPLOYMENT AND INDUSTRIAL LAW – Public Sector Disciplinary Appeal – Employee directed to resign after having been found to engage in misconduct – Misconduct was dishonesty in the preparation of documents (including a curriculum vitae) used in recruitment processes for three separate positions with the Respondent – Misconduct found proved - Consideration of appropriate disciplinary action - removal from public sector the appropriate disciplinary action – Appeal dismissed.
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for variation of enterprise agreement — Variation to remove requirement that only primary care giver can take parental leave —Variation approved
EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment – Variation made
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Offences — Category 3 — Defendant did not supply minimum scaffolding components — Risk of falling from a scaffolding tower SENTENCING — Relevant factors on sentence —Lower to mid range of objective seriousness — General and specific deterrence — No aggravating factors — Defendant established a substantial subjective case — Mitigating factors
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — State decision setting new principles to guide the process of award review under Industrial Relations Act 1996 (NSW), s 19 — Finalisation of the Award Making Principles
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner McRobert
EMPLOYMENT AND INDUSTRIAL LAW – Public Sector Disciplinary Appeal – Teacher directed to resign after performance found to be unsatisfactory following Executive Teacher Improvement Program – Failures by Respondent to comply with Teaching Service Act 1980 (NSW) and Department’s Guidelines for the Management of Conduct and Performance – Consideration of appropriate disciplinary and remedial action –– In all the circumstances Appellant should be permitted to have another opportunity to establish her competence to teach – Appeal allowed EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Whether the Commission has power to grant relief in respect of non-appealable decision made by Respondent as part of appealable decision
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – Industrial Relations Act 1996 (NSW) s 174(b) – whether the Commission should exercise discretion and make orders – factors relevant to exercise of discretion
APPEALS — Time limits — Appeal filed out of time — Discretion to grant leave to allow more time to appeal where justice requires — Whether there is an adequate explanation for delay — Whether there are reasonable prospects of success of the application for leave to appeal and appeal — Prejudice suffered by the parties — Extension of time not granted EMPLOYMENT AND INDUSTRIAL LAW — Contract — Whether binding agreement reached during conciliation
Judgment of
Taylor J, President
Commissioner Muir
Commissioner McDonald
CRIMINAL LAW — work health and safety — offences — category 2 — risk of fall from height — incomplete scaffolding — primary failure was conduct of another PCBU — worker pressured to undertake work by another PCBU — in determining objective seriousness the focus remains on the failures of the offenders to meet their statutory obligations — underlying issue giving rise to failures was the absence of a supervisor on site — objective seriousness of company’s offence in the low range — officer had devoted resources to establishing processes to eliminate or minimise risks — officer was not acting with a high level of disregard for his WHS obligations — officer failed to ensure that there was sufficient supervision available in the period where both he and the General Manager were unavailable — objective seriousness of officer’s offence below the mid-range — both offenders have diminished moral culpability due to actions of another PCBU SENTENCING — relevant factors on sentence — mitigating factors — deterrence — reduced need for general deterrence for officer due to extenuating personal circumstances — reduced need for specific deterrence for both offenders — inappropriate case for the imposition of an adverse publicity order due to low objective seriousness and unusual circumstances surrounding offence — capacity to pay — company has limited capacity to pay a fine — discount on sentence due to capacity to pay
CRIMINAL LAW — work health and safety — offences — category 2 — fall from height — ice machine compressor fell through roof while workers were attempting to move it, injuring multiple workers — failure to ensure that the roof was structurally capable of supporting workers and compressor — guidance material readily available — Safe Work Method Statement did not refer to task of decommissioning and removing an item of plant — procedure adopted for lifting and moving compressor was informal and ad hoc — “one-off” failure, not systems failure — upper-mid range of objective seriousness CRIMINAL LAW — work health and safety — offences — failure to consult, co-operate and co-ordinate activities with other duty holders — no risk assessment to determine whether roof was strong enough to take weight of the compressor, equipment and workers — offender did not require other duty holder to provide a Safe Work Method Statement, safe work procedure or the installation of a working platform — upper-mid range of objective seriousness SENTENCING — aggravating factors — substantial harm, injury, loss or damage — victim impact statements — prosecutor tendered victim impact statements of employees of another duty holder — offender objected based on late service and that statements were not relevant to the s 32 offence — it is not the role of the Court to make factual findings based on the content of a victim impact statement — victim impact statements do not increase the otherwise appropriate penalty, but rather confirm the extent of the substantial injury, loss and damage that can be expected of such offences in their aggravated form SENTENCING — relevant factors on sentence — moral culpability — aggravating factors — mitigating factors — deterrence — reduced need for specific deterrence — totality — overlap between two offences resulted in discount to give effect to principle of totality