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
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 — 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
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)
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
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
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
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