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
CRIMINAL LAW — work health and safety — offences — category 3 — risk of other persons being struck by collapse of cabinet that was not securely fixed to a wall — workers not provided instructions on how to assemble and fit cabinet in English — worker did not use all L-brackets provided —section 10(1)(a) application — not an appropriate matter for disposal pursuant to s 10(1)(a) SENTENCING — relevant factors on sentence — De Simoni principle — pleaded risk could lead Court to De Simoni error — pleaded risk amended — both parties bear a responsibility to ensure that material tendered on sentence does not offend De Simoni rule — evidence that permitted an inference that the workers were exposed to a risk of serious injury or death disregarded SENTENCING — relevant factors on sentence — aggravating factors — mitigating factors —deterrence — reduced need for specific deterrence
EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — penalty — proper approach to imposing penalty pursuant to s 139(3)(e) of the Industrial Relations Act 1996 (NSW) in light of Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 — purpose of penalty imposed under s 139(3)(e) — standard of proof — calculation of maximum penalties — course of conduct
EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation – entitlement of shift workers in Transport Management Centre to day in lieu for working a public holiday
CRIMINAL LAW — work health and safety — offences — category 2 – where crane on work site came into contact with overhead power lines causing cabin of the vehicle to be scorched – no person injured – obvious risk of injury – where a series of steps could have been easily and inexpensively implemented to address the risk – some steps taken to address the risk which were insufficient to properly do so – serious offending – strong subjective case – early plea of guilty - defendant a small family company – unchallenged evidence of parlous financial state establishing a reduced capacity to pay a fine – substantial moderation of fine justified balanced against the need for any penalty to reflect general 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 – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW ─ State decision ─ Award Making Principles ─ Whether to retain the paid rates adjustment mechanism ─ Effect of the paid rates adjustment on bargaining ─ Whether the paid rates adjustment should redress changes to the value of money in past years ─ Quantum of the paid rates adjustment for 2025-26 ─ Whether the Value of Money Principle is redundant ─ Whether restrictive language in the Award Making Principles remains necessary ─ Whether to amend the Work Value Changes Principle ─ Whether to permit minor changes that improve or modernise an award without having to establish the criteria for an Arbitrated Case ─ Whether to further simplify the Award Making Principles in a future state wage case
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Senior Commissioner Constant
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Strike for 48 hours by correctional officers arising from decision of Magistrate not to give an inmate a custodial sentence for violently assaulting four correctional officers — No notice given to employer of proposed strike action — Non-compliance with procedures for settlement of grievances and disputes provided for in Award — Efforts of employer to obtain redress on behalf of employees not exhausted — Significant safety concerns for remaining staff, inmates and the public — Significant disruption to criminal courts — Public interest in favour of dispute orders being made .
WORKERS COMPENSATION — Protection of injured workers — Application to Industrial Relations Commission for reinstatement — Whether worker fit for reinstatement sought
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for variation to contract determination – consent position – new determination made – previous determination rescinded
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Granting of relief pursuant to s 89 of the Industrial Relations Act 1996 (NSW)
CRIMINAL LAW — work health and safety — offences — category 2 — fall from height — formwork — worker not adhering to established safety systems — no elevated work platform — low range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — deterrence — aggravating factors — mitigating factors — parity — appropriate penalty
CRIMINAL LAW — work health and safety — offences — category 2 — mining train operated in man and material drift while workers were working in drift portal — train narrowly missed workers but collided with roof bolter held by worker, injuring his leg — high risk work — disputed facts concerning safety systems — safety systems were in place but were inadequate — offender did not implement most effective control despite the fact that it was available — reliance on actions of one individual undermined effectiveness of control measures — objective seriousness in the mid-range SENTENCING — relevant factors on sentence — objective seriousness — deterrence — specific deterrence not of significant weight — aggravating factors — prior convictions not treated as aggravating factor — mitigating factors — cannot find that offender is unlikely to reoffend due to prior convictions — 20% discount for guilty plea — assistance to authorities not treated as mitigating factor — appropriate penalty
EMPLOYMENT AND INDUSTRIAL LAW — Award — Making of a Consent Award — New Award to cover Child Protection Workers – New Award provides for enhanced wages and conditions - award consistent with object of the Act to encourage strategies to attract and retain skilled staff where there are skill shortages so as to ensure effective an efficient delivery of services - No issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interim award for temporary attraction and retention allowance — Terms of the interim award giving effect to Health Secretary, Ministry of Health v Australian Salaried Medical Officers’ Federation (New South Wales) (No 2) [2025] NSWIRComm 27
Judgment of
Chin J, Vice President
Kite AJ
Senior Commissioner Constant
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 — Decision to retain Award Review Principles — Purpose of award review — Award consolidation —Standardisation of conditions — Consideration of determinations — Standard index of award terms —Plain English drafting — National Employment Standards entitlements under Fair Work Act 2009 (Cth), Pt 6-3 — Principles to include test case standards or test case standard clauses — Definition of “obsolete” award — Procedure to conduct award review to be set out in Practice Note — Recognition of productivity improvements arising from award review — Substantive changes to terms and conditions of employment to be dealt with in subsequent arbitral proceedings
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner McRobert
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal — Sufficient likelihood of success — Balance of convenience — Both against applicant EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Resignation
EMPLOYMENT AND INDUSTRIAL LAW —Victimisation – Applicant a member, executive member of a vocational branch, and vocational branch delegate of his union (the PSA) – PSA engaged in long running campaign to change laws with respect to fisheries management to improve safety of fisheries enforcement officers when at work - In his capacity as executive member of vocational branch and vocational branch delegate the Applicant participated in a campaign (including industrial action in the form of work bans, and a concurrent media comments) and participating in proceedings before the Commission by attending to provide instructions in conciliation and later being a witness – Applicant provided statements to media as part of campaign in his own time at the request of and in conjunction with senior officials of the PSA – Applicant did not obtain approval from Respondent before making media statements - Denial of higher duties opportunity, and informal warning issued to Applicant – Consideration of whether actions amount to a detriment sufficient to ground a finding of victimisation – Actions found to be sufficiently detrimental to ground a finding of victimisation – Respondent claimed detriments imposed because decision maker thought Applicant had breached the Respondent’s Code of Conduct and Ethics by making unapproved media statements – Consideration of operation of s 210(1)(a), (g), (h) and (j) of the IR Act – whether s 210(1)(a) protects status as or activities as a delegate – meaning of “participates” in s 210(1)(g) of the IR Act – attending conciliation to provide instructions in manner typical of union delegate is participation in proceedings - meaning of public or political activity in s 210(1)(h) of the IR Act – meaning of “performance of the employee’s duties” in s 210(1)(h) of the IR Act - Applicant’s media statements made in own time at the request of and as a part of a campaign being run by his union to secure change in law to enhance safety or workers when at work a public or political activity for purpose of s 210(1)(h) – media statements did not interfere with the performance of the employee’s duties – Consideration of the ‘reverse onus’ in s 210(2) of the IR Act in circumstances where decision maker did not give evidence – Presumption that detrimental action taken for proscribed reason not displaced – Finding Respondent victimised the Applicant – Relief granted
AWARDS — Consent award applications — New awards reflect terms of memorandum of understanding — Component of award review process — No issue of principle
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Review of minimum rates awards to ensure utility and that rates are fair and reasonable
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Senior Commissioner Constant
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Award — Making of a Consent Award — New Award to cover cleaning employees of Education facilities – insourcing of operations to ensure industrial relations compliance - No issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Aged care facility issued with Improvement Notice requiring fit testing of P2/N95 masks used by staff — Whether inspector held requisite reasonable belief that a provision of the Work Health and Safety Act 2011 (NSW) was being contravened before issuing Improvement Notice — Whether reg 44 of the Work Health and Safety Regulation applied to the PCBU — Application of Part 3.1 of the WHS Regulation to the PCBU — Whether inspector’s belief that reg 44 was being contravened was reasonable despite error of law — Whether inspector turned his mind to facts required to establish a breach of s19 of the WHS Act
EMPLOYMENT AND INDUSTRIAL LAW — public sector — police — application under s 181E Police Act 1990 (NSW) for review of removal order — allegations of misconduct in relation to showing colleagues pornographic material outside of work and sexually harassing a colleague — related criminal proceedings dismissed — Commissioner of Police did not call witnesses at hearing and instead relied on statements from related criminal proceedings — unreasonable and unjust to dismiss applicant based on allegations 1, 4 and 5 — allegations 2 and 3 made out — context of alleged misconduct important — applicant was an unimpressive witness — applicant lacks insight into his conduct — significant character evidence — public interest — applicant lacks the integrity necessary to hold the position of a sworn member of the NSW Police Force — Commissioner of Police’s dismissal on the basis of allegations 2 and 3 not harsh, unreasonable or unjust — application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for interim award for temporary attraction and retention allowance — Commission-led arbitration to resolve dispute about mass resignations of psychiatry staff specialists at public hospitals — Approach of the Commission when considering wage increases designed to remedy a labour shortage — Whether restraint is warranted where arbitration of a claim for salary increases for staff specialists generally is imminent — Whether claim should not be granted to reward an industrial strategy — Mandatory consideration of the fiscal position and outlook of the NSW Government — Mandatory consideration of the state of the economy of NSW — Special Case Principle satisfied
Judgment of
Chin J, Vice President
Kite AJ
Senior Commissioner Constant
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Offences — Category 3 — Risk of falling from a mobile elevated working platform SENTENCING — Relevant factors on sentence — All facts, other than disputed facts, relied on by the prosecutor should be contained in agreed statement of facts — Whether utilitarian value of guilty plea is reduced because the court required to engage in a disputed fact hearing — Objective seriousness of the offence — Top of the lower range of objective seriousness
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — jurisdiction — order sought for Commission to be reconstituted as the Commission in Court Session for the purpose of taking evidence on commission — whether s 6(1) of the Evidence on Commission Act 1995 (NSW) invests the Commission in Court Session with jurisdiction to make orders to take evidence for use in unfair dismissal proceedings and in the absence of extant proceedings within the jurisdiction of the Court — proceedings dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal – Threatened dismissal – Interim order – Power to make interim order restraining dismissal – Application for interim order dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Whether assignment of an existing and a new classification in the NSW Ambulance Paramedics (State) Award 2023 to a particular work level is “required” within the meaning of cl 5(n) of the Award EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Procedure and Powers - Powers of Industrial Relations Commission when resolving an industrial dispute — Application of s 17 of the Industrial Relations Act 1996 (NSW) to orders made pursuant to dispute resolution powers in ss 136(1)(b) and 136(1)(d), when order made sets conditions of employment EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation — Nature of so called rebuttable presumption that award provides fair and reasonable conditions of employment — Whether presumption rebutted — Application of Award Making Principles — Whether assignment of an existing and a new classification in the NSW Ambulance Paramedics (State) Award 2023 will set fair and reasonable conditions of employment, would not be contrary to the public interest and whether there is a substantial reason to vary the Award — Variation, recommendation and directions made
AWARDS - variation by consent – variation without prejudice to parties’ positions in related dispute – ongoing dispute in respect of terms and conditions of employees’ salaries and conditions - no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — awards and enterprise agreements — approval and creation — remuneration — applications for increases in rates of pay by consent — where consent award applications are supported by defective evidence — whether parties should read affidavits before filing in support of consent applications — whether obsolete awards should be rescinded — parties’ duty to assist the Commission to facilitate just, quick and cheap resolution of the proceedings affirmed — recommendation for parties to review, modernise and consolidate certain awards
EMPLOYMENT AND INDUSTRIAL LAW – Unfair dismissal – Threatened dismissal – Interim Order – Power to make interim order restraining dismissal – Interim Order
EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal – Threatened dismissal – Interim Order – Power to make interim order restraining dismissal – Interim Order Dismissed.
CRIMINAL LAW — work health and safety — offences — category 2 — worker’s hand crushed by machinery — safety mechanisms designed to protect workers bypassed to achieve productivity gains — worker not provided with copies of safety documents — no verification undertaken to ensure worker understood manual — no risk assessment undertaken — guilty plea — upper mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — mitigating factors — deterrence — specific deterrence necessary despite the fact that the pleaded risk giving rise to the offence has been eliminated — appropriate penalty
CRIMINAL LAW — work health and safety — offences — category 2 — workers fell off elevated work platform after it was struck by a truck — workers not supervised — workers not adequately trained or inducted — safety procedures not followed — failures were reflective of a failure to implement existing adequate safety systems — large company — good corporate citizen SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — mitigating factors — deterrence — appropriate penalty — reduced moral culpability due to failures of other entities — record of previous convictions — cannot find that offender is unlikely to reoffend
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Conciliation and arbitration – Conduct of operational monitoring phase for on-duty relief position – Recommendation and directions made by the Industrial Relations Commission
APPEALS – Procedure – Orders on appeal – Dismissal of proceedings pursuant to UCPR r 13.6(2) for non-appearance by the appellant – Application for leave to appeal and appeal dismissed
UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - extension of time refused – application dismissed
CIVIL PROCEDURE — Discontinuance of proceedings — Proceedings regularly discontinued by consent under UCPR 12.1(1)(a) – Discontinuance not part of settlement agreement - Power to set aside – Considerations relevant to setting aside discontinuance – Satisfied Commission has power to set aside discontinuance – Not satisfied convenient for the just quick and cheap resolution of proceedings for discontinuance to be set aside
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
Senior Commissioner Constant
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — awards and enterprise agreements — approval and creation — contract agreement for contract carriers — by consent — no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW - Unfair dismissal – procedure and powers - notice of motion – interlocutory ruling on admissibility of witness statements – witnesses not available for cross-examination – leave granted for deceased witness – leave refused for other witnesses EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission - non-disclosure orders - s 164A of the Industrial Relations Act 1996 – whether satisfied that non-disclosure orders are in the interests of justice - non-disclosure orders made
EMPLOYMENT AND INDUSTRIAL LAW – Notice to Produce – Application to set aside – Model litigant – Dispensing with the formal and technical requirements of the UCPR
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
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Approval and creation — State Decision — Amendments to draft Award at Annexure A of Superannuation Case 2025 (No 4)
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Howell
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and Powers — Dismissal of proceedings for failing to comply with a direction given under s 61(1) of the Civil Procedure Act 2005, pursuant to s 61(3)(a) and UCPR r 12.7 for want of due despatch
EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal – Preliminary hearing on admissibility of evidence – dismissal under s 32C of the Education (School Administrative and Support Staff) Act 1987 on the basis of convictions for offences based on a guilty plea – rule in Hollington v Hewthorn & Co [1943] 1 KB 587 - whether a conviction is conclusive evidence of essential ingredients of offence – finality of decisions - whether abuse of process to invite factual conclusions inconsistent with essential ingredients of offence of which applicant stands convicted - whether unlawful or unfair for Respondent to rely upon fact of conviction to establish misconduct in circumstances where no allegation of misconduct was specifically made and investigated
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 identity of students referred to in materials filed by parties to public sector disciplinary appeal concerning teacher disciplined for failing an Executive Teacher Improvement Program —Non-disclosure orders made
EMPLOYMENT AND INDUSTRIAL LAW — unfair dismissal – threatened dismissal – interim order – power to make interim order restraining dismissal – interim order granted.
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – Breach – Remuneration – Public Sector – Health Professionals – Recruitment and hiring – Remuneration and salaries
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and Powers — Application for recusal — Application of apprehension of bias principle in conciliation — Whether bias can be apprehended by reason of an appeal lodged by the party asserting apprehended bias, from an earlier decision of the judicial officer — Application refused EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Conciliation — Whether conciliation can take place “on the papers” CIVIL PROCEDURE — Appearance — Whether Notice of Appearance irregular due to having been signed by solicitor employed by the party’s solicitor
APPEALS — nature of appeal — functions of appellate court — circumstances in which the Full Bench of the Industrial Relations Commission will intervene in a decision — whether Full Bench able to make allowances for Commissioner’s advantage in hearing evidence because of delay in publishing decision EMPLOYMENT AND INDUSTRIAL LAW —termination — statutory rights — review application — whether there were reasonable grounds to conclude that a police officer was in possession of child abuse material in contravention of s 91H of the Crimes Act 1900 (NSW) — whether appellant discharged onus of establishing that removal was unreasonable or unjust — removal of a police officer under s 181D of the Police Act 1990 (NSW) not necessarily conditional on satisfaction of misconduct according to criminal or civil standard of proof — requirement to have regard to the basis and reasoning employed by the Police Commissioner — principle that the Police Commissioner may remove a police officer where she has reasonable grounds to believe that an officer has engaged in serious misconduct applied
Judgment of
Chin J, Vice President
Paingakulam J, Deputy President
Schmidt AJ, Acting Deputy President
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Non-disclosure orders pursuant to s 164A of Industrial Relations Act 1996 (NSW) — Whether necessary in the interests of justice for non-disclosure orders to be made — Non-disclosure orders not made
CRIMINAL LAW — work health and safety — offences — category 3 — fall from height — formwork — worker not wearing a harness — low range of objective seriousness SENTENCING — relevant factors on sentence — De Simoni principle — Amended Statement of Facts included an element of a more serious charge — sentence tender bundle included documents that could lead the Court to De Simoni error — agreed facts tendered on sentence should not contain any facts that would have rendered the offender liable to a more serious penalty — material relevant to the incident should, to the extent that it is relevant to the Court’s sentencing exercise, be included in the Agreed Facts, unless that material contains relevant facts that are in dispute SENTENCING — relevant factors on sentence —objective seriousness — deterrence — mitigating factors — appropriate penalty
EMPLOYMENT AND INDUSTRIAL LAW — Awards — State Decision — Finalisation of the model superannuation clause — Whether superannuation clause should apply to employees covered by existing awards with provisions for superannuation — Whether superannuation clause should apply to local government employees — Creation of award including the superannuation clause
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Howell
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Applications for new awards for permanent and retained firefighting staff — Applications for new award for benefits payable to firefighters who have suffered injury resulting in incapacitation or death — Mandatory consideration of the fiscal position and outlook of the NSW Government — Mandatory consideration of the state of the economy of NSW — Approach of the Commission when considering the changing value of money over time — Component of wage increase claim based on work value of road crash rescue work — Special Case Principle satisfied — Allowances recognising work value of holding rescue competencies and other skills — Whether other allowances sought by the FBEU should be granted — Remuneration of retained firefighters — Need for parties to undertake holistic review of remuneration for retained firefighters — Consultation processes — Extent of consultation varies with the nature of change — Approach of Commission towards removing clauses introduced by consent — Whether leave claims sought by the FBEU should be granted — Whether other claims sought by the FBEU or FRNSW should be granted
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Notice of motion seeking an order pursuant to s 245 of the Workers Compensation Act 1987- whether a dispute exists as to the worker’s condition or fitness for employment – if so, whether the Commission should exercise its discretion to refer - orders made to refer dispute as to worker’s fitness to medical assessor(s)
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
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 —Victimisation — Whether amendments to Ch 5, Pt 1 of the Industrial Relations Act 1996 apply retrospectively — Whether a finding that an employee had engaged in misconduct, with no further sanction imposed, constitutes a detriment for the purposes of s 210 of the Industrial Relations Act 1996 — Whether decision maker had undertaken their own independent assessment and view of the Applicant’s conduct, prior to taking detrimental action — Presumption that detrimental action taken for proscribed reason displaced by direct evidence from person who took the detrimental action as to his motivations for taking the action — application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission - non-disclosure orders - s 164A of the Industrial Relations Act 1996 - non-disclosure orders made
CRIMINAL LAW — work health and safety — offences — category 2 — case management —whether the Court should order preliminary disclosure — interests of justice — matter at more complex end of the spectrum — orders sought by prosecutor will avoid disruption — no unfairness to defendant — orders made
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation
CIVIL PROCEDURE — Stay of proceedings — pending judicial review — Balance of convenience — interests of justice — Over-riding principle “just, quick and cheap” — Dictates of justice weighed against granting the stay
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent — Increase to rates of pay arising from Fair Work Commission’s Aged Care Work Value Case
ENTERPRISE AGREEMENT — Application for variation of enterprise agreement — Variation to include sector-wide increases to salaries — Variation to include entitlement to no safe job leave — Variation approved
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 — Low to mid-range of objective seriousness
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers – Motion to dismiss or permanently stay proceedings in light of alleged in-principle settlement – proceedings stayed pending further Order of the Commission.
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – agreement approved – s 36A determination made – employees not parties to the agreement
EMPLOYMENT AND INDUSTIRAL LAW - Application to vary the Crown Employees (Public Sector – Salaries 2024) Award by consent – variations provide a further increase to salaries and salary related allowances whilst negotiations for a new award for psychologists employed by the Crown continue – no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — termination — statutory rights — unfair dismissal —decision must be read as a whole and considered fairly — reasons were adequate — not every matter raised before a decision-maker needs to be discussed at length or even at all if it is not a mandatory consideration — Commission is not bound by the rules of evidence — leave to appeal refused APPEALS — leave to appeal — principles governing — no issues of principle
Judgment of
Paingakulam J, Deputy President
Kite AJ, Acting Deputy President
Commissioner Muir
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
EMPLOYMENT AND INDUSTRIAL LAW — Awards — State Decision — Whether the Commission should set a model superannuation clause for public sector awards in New South Wales — Federal award terms — Entitlement to superannuation contributions should be enforceable by employee or union — Appropriate wording for standard clause — Employer’s obligations in clause — Superannuation contributions when employee is absent from work
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Howell
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 — Leave to appeal — Principles governing — Public interest — Whether applicant mounted arguable case pointing to appealable error — Whether it was open to the original decision-maker to make findings adverse to applicant based on an assessment of his credibility — Whether applicant can rely on submissions that stray beyond the grounds of appeal — Special grounds for receiving fresh evidence — Whether fresh evidence should be received in the absence of any notice of motion — Allegations of improper conduct by the original decision-maker not made in proceedings below, unsupported by any evidence and strayed beyond the grounds of appeal EMPLOYMENT AND INDUSTRIAL LAW —Termination — Statutory rights — Unfair dismissal — Whether classroom teacher was denied procedural fairness when medically retired — Whether employer failed to consider the teacher’s rehabilitation prospects
Judgment of
Chin J, Vice President
Commissioner Webster
Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent — Increase to rates of pay arising from Fair Work Commission’s Aged Care Work Value Case
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreement — Review — Modernisation and consolidation of awards — Benefits for employees, managers and public interest — Importance of participation from high-level decision-makers
EMPLOYMENT AND INDUSTRIAL LAW — Awards — State Decision — Whether the Commission should set a model superannuation clause for public sector awards in New South Wales — Directions made after parties filed submissions
PRACTICE AND PROCEDURE – interlocutory ruling on admissibility of affidavit – deponent of affidavit not available for cross-examination– Uniform Civil Procedure Rules 2005, rule 35.2(3) – leave to rely upon affidavit refused
EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – dispute resolution – remuneration – variation – public sector – health professionals
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Rescission
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Whether no reasonable cause of action disclosed — Cause of action untenable EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Whether protected attribute as prescribed in s 210(1) of the Industrial Relations Act 1996 (NSW) established
EMPLOYMENT AND INDUSTRIAL LAW – AWARDS – Rescission of award– Consent award application to replace existing award – Whether there is utility in making an award where there are no employees falling within the scope of the existing award – Application to make proposed award dismissed – Award rescinded
CIVIL PROCEDURE — application to re-open case — where SafeWork sought to adduce further evidence — evidence probative – prejudice to the defendant of delay and costs - application refused
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Freedom from victimisation — Staffer employed under Part 3 of the Members of Parliament Staff Act 2013 (NSW) — Termination of employment — Whether Commission can make an order pursuant to Industrial Relations Act 1996 (NSW), s 213 STATUTORY INTERPRETATION — Legal presumptions — That two laws made by same legislature are intended to work together — Common law “at pleasure” principle — Legislative intention to abrogate human rights or freedoms — Whether Crown’s right to “dispense with” an employee amounts to right to dismiss employee “at pleasure” STATUTORY INTERPRETATION — Legal presumptions — Jurisdiction — Privative clauses — Whether relief is restricted to relief obtained in judicial review WORDS AND PHRASES — “dispense with the services” — Members of Parliament Staff Act 2013 (NSW), s 20(3) — “any other relief” — Members of Parliament Staff Act 2013 (NSW), s 26(5)
Judgment of
Taylor J, President
Paingakulam J, Deputy President
Commissioner Muir
APPEAL – EMPLOYMENT AND INDUSTRIAL LAW — Jurisdiction — Unfair Dismissal — Probation — Reasonable maximum period of probation — Whether maximum period determined in advance — Rule 5 of Government Sector (General) Employment Rules 2014 relevant but not determinative — Leave to Appeal granted – Appeal upheld — Probation of 6 months with maximum period of probation of 12 months reasonable – Application dismissed
Judgment of
Taylor J, President
Kite AJ, Acting Deputy President
Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Events more than 21 days before Application CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Standard not reached
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal —Jurisdictional objection — Whether employee dismissed — Whether fixed term agreement breached provisions in award governing fixed term agreements — Effect of breach of award on nature of employment — Whether breach of award transmogrifies temporary employment into permanent, ongoing employment — Whether breach of award resulted in the employee being dismissed for purposes of Part 6 of Ch 2 of Industrial Relations Act 1996 — Whether employment ended by agreed effluxion of time — Application for unfair dismissal dismissed for want of jurisdiction EMPLOYMENT AND INDUSTRIAL LAW —Victimisation — Whether employee suffered detriment — No detriment established
EMPLOYMENT AND INDUSTRIAL LAW — Claim for breach of contract pursued as a statutory remedy — Whether Fair Work Act 2009 (Cth), s 323(1) creates a civil penalty for a failure to pay a contractually obligated payment for work done — Statutory interpretation — Conflicting first instance authority — Truck Act provisions. EMPLOYMENT AND INDUSTRIAL LAW — Industrial action — Whether employer industrial action was employer response action — Lockout notified to commence at the same time that employee industrial action was notified to commence — Interpretation of notice of industrial action — Whether employer industrial action as a matter of fact responded to employee industrial action — Notice requirement.
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes –Dispute orders – Industrial Relations Act 1996 (NSW) ss 136 and 137 – whether there is a risk of health, safety and wellbeing – whether the bans would contravene the award
APPEALS —Time limits — Extension of time — 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.
CIVIL PROCEDURE — stay of proceedings — inherent power — power to stay decision under Industrial Relations Act 1996 (NSW) s 190 — applicant seeks stay of interlocutory decision of Commissioner below pending an appeal — whether there is an arguable case on appeal — balance of convenience — practical effect of stay — stay of decision does not automatically stay substantive hearing — application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – dismissal of proceedings pursuant to UCPR – applicant failed to appear
EMPLOYMENT AND INDUSTRIAL LAW – AWARDS – consent award application – award made – award rescinded - parties to consider whether the maintenance of separate awards for the City of Sydney is necessary during next round of negotiations
EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — category 2 — hot work — sparks from grinder mixed with oil to cause an explosion — no hot work permit system — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — deterrence — aggravating factors — mitigating factors — capacity to pay a fine — appropriate penalty SENTENCING — mitigating factors — assistance to law enforcement authorities — principles
EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Whether application filed out of time – Whether, if so, the Commission should accept the application out of time – Consideration of when time commences to run for purposes of limitation period where it is alleged that the employer engaged in a “course of conduct” – Whether and when “ongoing detrimental conduct” provides a sufficient reason for the Commission to accept an application out of time – No sufficient reason to accept those parts of application made out of time CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Whether no reasonable cause of action disclosed — Applicant’s case fairly arguable
Practice and procedure - application to vacate hearing date – failure to notify witnesses of hearing date – procedural fairness – just, quick and cheap resolution
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Notice of motion seeking a stay arising from an application for leave to appeal and appeal— Whether s 190A provides a presidential member with the power to restrain the employer from dismissing the applicant— Notice of motion and application for a stay dismissed.
EMPLOYMENT AND INDUSTRIAL LAW — discrimination — victimisation — where applicant contended that his complaints history was the reason why he was not offered employment with the respondent — factual finding that the decision-maker was not aware of the applicant’s complaints history not open on the evidence — recruitment decision was not made because of the applicant’s complaints history CIVIL PROCEDURE — parties — persons under legal incapacity — tutors — where tutor appointed without certificate from solicitor as required by UCPR r 7.16(b) — procedural irregularity that did not invalidate proceedings — tutor was known to applicant and appointed at applicant’s request — no issues of procedural fairness — applicant no longer under legal incapacity APPEALS — procedural fairness — bias or apprehension of bias — applicant alleged that Commissioner asking the respondent’s counsel legal and technical questions amounted to bias — no recusal application made — no particular decision or ruling said to be influenced by bias — agreement with submissions or contentions of the respondent does not indicate bias — directing legal questions to the respondent’s counsel where the applicant was self-represented is unremarkable — no finding of bias made APPEALS — procedure — time limits — extension of time sought — discretion to extend time to appeal is wide and is informed by factors such as the length of delay, whether there is a reasonable explanation for the delay, any prejudice and the applicant’s prospects of success — where there was reasonable explanation for delay and refusal to extend time to appeal might result in prejudice — where the application for leave to appeal and appeal had no prospects of success — leave to file appeal out of time refused
Judgment of
Taylor J, President
Paingakulam J, Deputy President
Senior Commissioner Constant
CIVIL PROCEDURE — Hearings — Order that proceedings be heard together — Industrial disputes with common questions — Whether some disputes should be heard separately due to the emergence of award-specific issues EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Remuneration — Where awards contain classifications that fall below the National Minimum Wage
EMPLOYMENT LAW – CIVIL PROCEDURE - hearings – adjournment sought – where appellant is self-represented – procedural history – interest of justice considered – adjournment granted
Judgment of
Commissioner Webster on delegation from the Full Bench
EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Application for an order that an earlier direction be complied with “in full” — No earlier direction was made — Application dismissed — No point of principle
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Appeals — Discretionary power to make dispute orders — Relevant considerations — Whether the decision at first instance proceeded on the basis that the Act does not tolerate industrial action — Direction to union to post a statement on its Facebook page correcting a misleading post — Whether direction was beyond power — Whether power under s 136(1)(a) to make substantive facilitative directions — Leave to appeal refused in respect of both decisions.
Judgment of
Taylor J, President
Kite AJ
Commissioner O’Sullivan
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Employer unable to prove conduct — Employee dishonest during investigation as separate basis for dismissal
EMPLOYMENT AND INDUSTRIAL LAW — termination — statutory rights — unfair dismissal — failure to comply with COVID-19 vaccination requirements — basis for dismissal — construction of Public Health Orders made under the Public Health Act 2010 — validity of Determination made pursuant to Health Services Act 1997 (NSW) s 116A(1) — construction of Health Services Act 1997 (NSW) s 116A(1) — employer dismissing an employee may specify an invalid ground together with a valid ground — rights and obligations relating to termination of employment are “conditions of employment” for the purposes of Health Services Act 1997 (NSW) s 116A(1) and definition in Industrial Relations Act 1996 (NSW) — Determination did not fix conditions of employment already fixed by Public Health Orders — impact of dismissal on applicant taken into consideration by first instance decision maker — no procedural unfairness — decision not harsh, unreasonable or unjust — appeal dismissed APPEALS — nature of appeal — functions of appellate court — circumstances in which the Full Bench of the Industrial Relations Commission will intervene in a decision — question of leave to appeal determined in light of merits of grounds of appeal — parties required to articulate clearly the substance of their case in written submissions — Commission not required to consider submissions that extend beyond appeal grounds — no Notice of Contention filed by respondent to disturb conclusion at first instance — first instance decision maker’s reasons must be read fairly and as a whole
Judgment of
Chin J, Vice President
Paingakulam J, Deputy President
Senior Commissioner Constant
EMPLOYMENT AND INDUSTRIAL LAW — termination — statutory rights — unfair dismissal — failure to comply with COVID-19 vaccination requirements — basis for dismissal — construction of Public Health Orders made under the Public Health Act 2010 — validity of Determination made pursuant to Health Services Act 1997 (NSW) s 116A(1) — construction of Health Services Act 1997 (NSW) s 116A(1) — rights and obligations relating to termination of employment are “conditions of employment” for the purposes of Health Services Act 1997 (NSW) s 116A(1) and definition in Industrial Relations Act 1996 (NSW) — Determination did not fix conditions of employment already fixed by Public Health Orders — impact of dismissal on applicant taken into consideration by first instance decision-maker — no procedural unfairness — matters postdating applicant’s dismissal cannot be taken into consideration — decision not harsh, unreasonable or unjust — appeal dismissed APPEALS — nature of appeal — functions of appellate court — question of leave to appeal determined in light of merits of grounds of appeal — parties required to articulate clearly the substance of their case in written submissions — Commission not required to consider submissions that extend beyond appeal grounds
Judgment of
Chin J, Vice President
Paingakulam J, Deputy President
Senior Commissioner Constant
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Conciliation and arbitration — Where union resolved to defy dispute orders while engaged in arbitration proceedings — whether union can access arbitration and organise or take industrial action concurrently — principle that unions cannot have both arbitration and direct action affirmed
Judgment of
Chin J, Vice-President
Kite AJ
Senior Commissioner Constant
CONTRACT OF CARRIAGE – Termination of contract – Application for reinstatement of contract or compensation – Whether reinstatement repudiated – Reinstatement not practicable – Compensation ordered
EMPLOYMENT AND INDUSTRIAL LAW — interlocutory decision - application under s 229 of the Work Health and Safety Act 2011 for external review of a decision to issue Improvement Notices - summonses to produce — objection to inspection — notice of motion seeking to be excused from producing unredacted documents - public interest immunity — whether public interest immunity can arise by consent order — orders made by consent dismissing notice of motion – no claim for public interest immunity before the Commission - no decision in respect of public interest immunity made by the Commission – basis for exclusion of evidence rejected – objections for other reasons permitted at the substantive hearing EMPLOYMENT AND INDUSTRIAL LAW – interlocutory decision – practice and procedure - application for an order precluding SafeWork from cross-examining a witness – active participation of SafeWork alleged breach of the Hardiman principle — whether the decision-maker ought to be allowed to be an active party to review — whether as a party the decision-maker is entitled as of right to cross-examine witnesses on credit, credibility and reliability — appropriate role of decision-maker on a merits review – participation of an active contradictor relevant – SafeWork is obliged to assist the Commission to dispose of matters consistent with s 56 of the Civil Procedure Act and model litigant obligations - inconsistent approach by SafeWork in its reliance upon the Hardiman principle – application to preclude SafeWork from cross-examining witness dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Victimisation – Practice and Procedure – Reference to Full Bench – whether jurisdictional challenge on basis that previous Full Bench authority was wrongly decided should be determined before evidence taken – balancing of interests – whether sufficient doubt exists for referral
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute- enterprise agreement approved – principles for approval of enterprise agreements – recission of enterprise agreements following expiry of nominal period
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – Rights of police officers to incremental progression through hierarchy of ranks, grades and salaries – where applicant union seeks a declaration that, where confirmation of the appointment of a probationary constable is delayed beyond 12 months, those officers are entitled to progress to the higher rank and salary increment on the next anniversary of the date of their appointment as probationary constables – where awards to be given practical operation consistent with the objective meaning of its language – where awards should be reasonably capable of being understood by the participants in the industries to which they apply – where past industrial practices cannot be substituted for the terms of the award − applicant entitled to declaratory relief
EMPLOYMENT AND INDUSTRIAL LAW — contract — terms — unfair contract — interlocutory application — jurisdiction — remuneration cap — whether certain monies formed part of employee’s “remuneration package” — definition of “payable or receivable” — monies paid in error not part of “remuneration package” — training, education and study leave reimbursement not part of “remuneration package”
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Termination – exemption from paying severance pay to employees on the basis of the employer having obtained acceptable alternative employment
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal —Dismissal of a solicitor — Temporary employee — Unsatisfactory performance over an extended period — Multiple allegations — Procedural fairness — Dismissal not harsh, unreasonable or unjust — Costs — Costs sought on a Notice of Motion thrown away — Limited costs jurisdiction — Costs application dismissed
APPEALS —Time limits — Extension of time — 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
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes – the Commission’s power to make recommendations and directions pursuant to s 136 - compliance with Award in respect of duty to consult, status quo and dispute resolution procedures – public interest factors – impact of delay of implementation of changes on community – importance of consultation before implementation - recommendations made
EMPLOYMENT AND INDUSTRIAL LAW – Awards and Enterprise Agreements – Review of minimum rates awards to ensure utility and that rates are fair and reasonable
EMPLOYMENT AND INDUSTRIAL LAW — Industrial action – characterisation of industrial action – support and facilitation of industrial action - mass resignation – dispute orders made
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
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes – suspension of employee – payment of remuneration withheld - Recommendation made to repay amount withheld and recredit leave taken in the relevant period
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Police — Application under s 181E Police Act 1990 (NSW) for review of removal order — Allegations of misconduct — Public interest —Application dismissed
APPEALS — Leave to appeal — Principles governing — Public interest — Whether it was open to the original decision-maker to make central findings of fact EMPLOYMENT AND INDUSTRIAL LAW —Termination — Statutory rights — Unfair dismissal — Whether police officer was temporarily exempted from a direction to members of the New South Wales Police Force to be vaccinated against COVID-19 — Whether refusal to comply with a direction was deliberate — Whether police officer had an alternative basis to not be vaccinated due to medical contraindication certificate — Delay in unfair dismissal or police removal matters
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Remuneration — Whether to vary awards to provide for interim salary increases — Whether to backdate increases — Decision to award interim increases commensurate with the minimum likely to be awarded upon the making of the final award
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Regulators and inspectors — SafeWork inspector who issued Prohibition Notice pursuant to s 195 of Work Health and Safety Act 2011 (NSW) accused by recipient of Prohibition Notice of having committed perjury when giving evidence in an external review by the Industrial Relations Commission of SafeWork’s internal review of the Prohibition Notice EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Whether the Commission has power pursuant to s 164(1)(d) of Industrial Relations Act 1996 (NSW) to direct the Director of Public Prosecutions to commence a prosecution against a person for perjury – Held the Commission does not have that power COURTS AND JUDGES — Supreme Court — Inherent jurisdiction – Section 23 of Supreme Court Act 1970 (NSW) – “necessary for the administration of justice” – whether the Supreme Court and consequently the Industrial Relations Commission, has power to direct the Director of Public Prosecutions to commence a prosecution against a person for perjury CRIME — Public justice offences — Perjury — Ability of a judicial officer to direct that a person be prosecuted for perjury — Role of the Director of Public Prosecutions STATUTORY INTERPRETATION — Amendment and repeal — Linguistic maxims — Presumption against surplusage — Implied exclusion of omitted matters
EMPLOYMENT AND INDUSTRIAL LAW — Awards — State decision setting new principles to guide the exercise of the Commission’s award making powers – Whether to retain Wage Fixing Principles – Decision to retain and rename them the Award Making Principles – Consideration of the effect of the Principles – Whether applicants have to meet an onus or must overcome a presumption – Whether to create a new principle addressing changes in the cost of living – Whether to make an order setting a minimum wage for award free employees – The content of no extra claims clauses – Whether to otherwise amend the existing Principles — Draft Award Making Principles published.
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Senior Commissioner Constant
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment and to correct typographical errors arising from earlier variations – Variation made by consent
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Directions to parties in arbitration proceedings — Where union issued misleading communication to members regarding the Commission’s decision — Where incumbent on industrial parties to ensure that members have an accurate understanding of the nature and effect of the Commission's decisions — directions made for union to remove and correct Facebook post
AWARDS — consent award applications – making new award to which the HSU is a party in accordance with memorandum of understanding — no issue of principle
EMPLOYMENT LAW – application to varying non-disclosure orders by non-party – parties consent to variation order – relevant principles to apply – in the interests of justice to vary the orders – not in the interests of justice to maintain the original orders – variation order made
AWARDS — consent award applications – making new awards to which the HSU is a party in accordance with memorandum of understanding — no issue of principle
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Unfair Dismissal — Probation — Reasonable maximum period of probation — Whether maximum period determined in advance — Application of Government Sector (General) Employment Rules 2014 — Maximum period of probation of 12 months reasonable
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Where union prefers to achieve aims through industrial force — Where union’s approach inimical to system of conciliation and arbitration — dispute orders made — directions made for arbitration of dispute
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for contract determination – rates sought above those in the General Carriers Contract Determination – insufficient material to determine rates are fair and reasonable – application dismissed
WORK HEALTH AND SAFETY – Improvement Notice issued by inspector – application for external review of decision made on internal review – whether there were facts which could found a reasonable belief that a contravention has occurred – whether reasonable inquiries made – external review upheld
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements - enterprise agreement approved – enterprise agreement rescinded - Principles for Approval of Enterprise Agreements
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Industrial Dispute — Interpretation of Award – Separate Questions for determination — Interpretation of ‘No extra claims’ clause in the context of a clause in the Award permitting “the creation and/or assignment of a classification to a work level” specified in the Award, during the life of the Award in certain circumstances – Meaning of ‘classification’ — Proposed classification of Virtual Clinical Care Centre Triage Clinicians to a lower work level than indicated by the remuneration paid to persons currently performing the role — Award contemplates changes to the work level assigned to a classification during the life of the Award, despite the ‘no extra claims’ clause, provided conditions are met
ENTERPRISE AGREEMENT — Requirements for approval — Employees are party to the agreement — Not negotiated with an industrial association — Application sought approval of an agreement in different terms to that which was voted on — Incorrect information given to employees regarding scrutineering — Application of Principles for Approval of Enterprise Agreements — Undertaking given by applicant as to minimum rates — Checklist for the approval of enterprise agreements — Enterprise agreement approved
EMPLOYMENT AND INDUSTRIAL LAW - Application for relief from victimisation – prospective employer – presumption displaced in respect of detriments – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders –– Safety concerns raised by Fisheries Officers over many years –– Imposition of work bans in respect of nighttime inspections of commercial fishers –– Objective of work bans to draw public attention to the underlying safety issues and the legislative reform the Union contends is appropriate –– Public Interest Considerations –– No persuasive evidence that work bans pose a serious risk of depletion of key fish stocks –– Evidence that WHS issues had not been dealt with expeditiously –– Some risk mitigation measures sought by Union require legislative change, outside of the control of the Employer –– No dispute orders made
APPEAL – EMPLOYMENT AND INDUSTRIAL LAW - Victimisation claim – Threatened termination of employee for disclosing confidential information to union as part of employee’s duties as union delegate, including as a witness in proceedings for a new award - Commissioner did not allow the applicant to argue an alleged detriment not identified until reply submissions – no error in disallowing the point of claim – Commissioner did not misapply the law in determining the victimisation claim – decision-makers’ belief does not need to be correct to be accepted as the reason for detrimental action – Commissioner did not need to consider the applicability of reg 76 of the Police Regulation to determine the reason for the detrimental action being taken by the decision-makers – appeal does not raise any important issue of law or principle - leave to appeal refused APPEAL – EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – a ground of relief sought by the notifier was declaratory and beyond power – appellant did not present arguments to the contrary - Commissioner was not required to determine the applicability of reg 76 of the Police Regulation to decide whether to make the recommendations sought in the dispute - appeal grounds contest findings of fact that were open on the evidence - no House v The King error established – no utility in the appeal – leave to appeal refused
Judgment of
Senior Commissioner Constant, Commissioner Webster and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation —Principles for approval of enterprise agreements — enterprise agreement approved
EMPLOYMENT AND INDUSTRIAL LAW ─ Awards and enterprise agreements ─ Variation ─ State Wage Case ─ Whether National decision ought to be adopted ─ operative date for wage increases ─ where there has been a significant decline in the real value of wages ─ where rates may fall below the National Minimum Wage
Judgment of
Taylor J, President
Chin J, Vice President
Paingakulam J, Deputy President
Senior Commissioner Constant
Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – unfair dismissal application in respect of a teacher – student witnesses – witnesses are now adults – whether there it is necessary in the interests of justice to make non-disclosure orders in respect of students – public interest in protecting children to encourage reporting of misconduct and underperformance of teachers – imbalance of power between teachers and children – size and specialised nature of the school necessitates School name being subject to s 164A order to protect the identity of the witnesses - Non-disclosure orders
POLICE – removal of police officer – s. 181D Police Act 1990 – application for review of order of Commissioner of Police – alleged possession of child abuse material in four videos – applicant claimed he was not in possession of three videos – applicant also claimed one video he possessed was not child abuse material – application of criminal judgements in the Industrial Commission – applicant did not possess three videos – material applicant possessed not child abuse material – removal was unjust and unreasonable –consideration of whether reinstatement practicable – applicant reinstated with no compensation.
EMPLOYMENT AND INDUSTRIAL LAW – Awards – interim award – reconstitution of the Full Bench – form of interim award to reflect Full Bench decision –whether overtime meal allowances should be increased.