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 — 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 – 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 –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
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.
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Interim Award — Dispute resolution — Conciliation and arbitration — Long running dispute regarding correct classification of Technical Officers and Hospital Scientists performing scientific work in pathology laboratories and other settings within NSW Health Pathology and Sydney Children’s Hospital Network — Where Union maintained that persons employed as Technical Officers performing scientific work entitled to be classified as a Hospital Scientist whenever they attained a science degree — Where Employer disagreed but proposed variation to Hospital Scientists (State) Award to remove any ambiguity — Matter returned to conciliation after seven days of arbitration — Proceeding resolved by making interim award by consent as an interim resolution of the dispute, without prejudice to either party’s position in respect of the dispute in the event the underlying issue cannot be resolved through broader award negotiations — ‘Special circumstances’ justifying making of an interim award established
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Threatened State-wide strike action by public health system nurses – Dispute previously notified to the Commission by the organisation planning industrial action – Dispute to be dealt with by conciliation – Dispute orders
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Threatened State-wide strike action by public health system nurses – Union did not oppose Commission making recommendation in conciliation that strike action not proceed as planned – Risk to safety and welfare of patients reasonably self-evident – Conciliation in respect of the underlying dispute has not yet occurred – Recommendations made
CIVIL PROCEDURE – appeal – application for leave to appeal – whether applicant under legal incapacity – application for appointment of tutor – failure to nominate tutor – stay of proceedings
Judgment of
President Taylor, Deputy President Paingakulam and Senior Commissioner Constant
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission- procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking for appointment of a tutor-failure to meet evidentiary requirements of UCPR 7.18(5)(b)
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Jurisdiction — Employee dismissed five days before end of probationary period — Reasonable period of probation – Minimum probation period prescribed by statutory rule — Probationary period reasonable having regard to nature and circumstances of employment – No jurisdiction to hear and determine unfair dismissal claim
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles - whether documents sought for a legitimate forensic purpose – oppression – fishing
EMPLOYMENT AND INDUSTRIAL LAW - Termination – Statutory rights – Unfair dismissal – fighting in the workplace - no denial of procedural fairness - whether dismissal harsh, unreasonable or unjust
PUBLIC SECTOR SALARIES DISPUTES – collaborative bargaining – delay in increasing wages – terms of ‘no extra claims’ clause - recommendation made to resolve disputes by a combination of consent variations and arbitration
UNFAIR DISMISSAL – Extension of time – application to extend time to lodge application – unrepresented litigant – extension opposed by respondent – applicant informed of 21 day time limit – applicant did not seek alternative advice for several months - extension of time refused – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Victimisation and Unfair dismissal claims — Whether parties entered into a binding agreement to settle the claims – Where offer made by Respondent “subject to Deed of Release” ostensibly accepted by Applicant – Where Applicant contended that parties’ intention was not to make a concluded bargain unless and until a deed was signed — Evidence established parties intended to be bound before signing deed, however signing of deed was condition of performance EVIDENCE — Privileges — Evidence of settlement negotiations admissible in proceeding in which the making of a settlement agreement is in issue JUDGMENTS AND ORDERS — Appropriate order to be made pursuant to s 73(1)(b) of the Civil Procedure Act 2005 (NSW) in circumstances where signing deed is a condition of performance – proceedings permanently stayed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Wage fixing principles EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Award variations
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Costs — Whether proceedings instituted without reasonable cause
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – applications for contract determination to prevent certain deductions being made to remuneration of contract carriers – whether contract determination already applies – whether deductions consistent with the existing scheme of industrial regulation – whether deductions otherwise fair and reasonable
STATE WAGE CASE – adoption of National Decision – Wage Fixing Principles – Whether National Decision ought to be adopted – Whether the Wage Fixing Principles ought to be retained or amended – Directions made for submissions
Judgment of
Taylor J President, Chin J Vice-President, Paingakulam J Deputy President
EMPLOYMENT AND INDUSTRIAL LAW – Public Sector – Police – review of removal order – whether consideration by Commissioner of Police of applicant’s disciplinary history rendered removal unjust or unreasonable – whether removal otherwise harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – health worker unable to work due to COVID-19 vaccination requirements of Public Health Orders – failure to comply with COVID-19 vaccination requirements of determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – health worker unable to work due to COVID-19 vaccination requirements of Public Health Orders – failure to comply with COVID-19 vaccination requirements of determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Provisional improvement notice — External review — Right of HSR to be paid outside normal work hours
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing application under s 229 of the Work Health and Safety Act 2011 for external review of a decision to issue a prohibition notice – whether leave to appeal should be granted – whether Commissioner erred in finding that an owner-builder constructing a dwelling was conducting an “undertaking” – whether the Commissioner erred in finding the inspector held the “reasonable belief” required by s 195 of the WHS Act when issuing the prohibition notice – whether the Commissioner denied the applicant procedural fairness in not permitting him to adduce rebuttal evidence – whether the decision at first was otherwise affected by error
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – teacher dismissed after performance found to be unsatisfactory following an Executive Teacher Improvement Program – whether there was a proper basis to place teacher on Program – whether process impacted by bias or discrimination – whether dismissal otherwise unreasonable or unjust – whether dismissal harsh
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes – Power of Commission to make a determination pursuant to s 175 of the Industrial Relations Act 1996 – Whether factual bases for relief sought established – Whether communications between union delegate and union subject to legal professional privilege – Relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – No basis to grant relief EMPLOYMENT AND INDUSTRIAL LAW —Victimisation - 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 – Employer audited employees’ emails and discovered disclosures – Whether substantial and operative reason for investigating and finding employee had engaged in misconduct was his role as delegate and/or his participation in award proceeding - Consideration of ‘reverse onus’ provided for in s 210(2) of the Industrial Relations Act 1996 – Relevance of the correctness of the belief held by person responsible for taking detrimental action against employee to determining whether onus discharged – Consideration as to whether other persons had an material effect on decisions of those responsible for taking detrimental action – Presumption that detrimental action taken for proscribed reason displaced by direct evidence from those who took the detrimental action as to their motivations which was accepted - application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission —Unfair dismissal – Practice and procedure – Failure of applicant to comply with directions – Notice of Motion to dismiss the proceedings for failure to prosecute the proceedings with due despatch – No adequate explanation provided for defaults – Applicant failed to appear on hearing of the motion – Proceedings dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Awards – application for increases to salaries – discretion of Commission to award increases – principles to apply in setting award conditions – whether award provides fair and reasonable conditions of employment – whether increases necessary to ensure award continues to provide fair and reasonable conditions of employment – application of Wage Fixing Principles – work value – productivity and efficiency – special case – increase awarded - s 164A orders made
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – industrial action - dispute orders – paramedics – ban on attendance at all jobs – ban on attending Ambulance NSW rosters – ban on patient transfers – HSU concern regarding maintenance of staffing during absences - public interest – risk to public safety – objects of the Act – orders and directions made
EMPLOYMENT LAW – unfair dismissal – employer asserts it is a national system employer – Commission lacks jurisdiction – unfair dismissal application dismissed – costs application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – applicant sought leave to appeal against decision dismissing application for reinstatement of injured worker for want of jurisdiction – leave to appeal refused by Full Bench – applicant filed second appeal against decision at first instance – whether applicant should be granted an extension of time to make the second appeal
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Termination – applications for exemption from paying severance pay to employees on the basis of the employer having obtained acceptable alternative employment for them
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee failed to conduct airport inspections – falsification of records in a manner which suggested inspection done – whether dismissal disproportionate to the gravity of the misconduct
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – documents produced pursuant to a Summons for Production – claim of public interest immunity – whether immunity attached to intelligence reports of the NSW Police Force – whether the public interest in disclosure outweighs the interests in the administration of justice – the public interest in keeping confidential the informants is outweighed by the public interest in the administration of justice in the unredacted documents being made available to the applicant – consideration of instead making s 164A orders – order made
CONTRACT OF CARRIAGE – termination – reinstatement – compensation – identifying parties to the contract of carriage – whether there was an implied contract of carriage – essential elements of a contract not established
COSTS – respondent applied for order for costs –application for reinstatement under s 181D of the Police Act 1990 not instituted without reasonable cause and was not frivolous nor vexatious – applicant did not unreasonably fail to agree to a settlement of the claim – the application for costs order refused.
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Injunctions
UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - application granted.
EMPLOYMENT AND INDUSTRIAL LAW — Industrial dispute - Employee performing role on a temporary basis for over 12 years - Payment of temporary assignment allowance – Placement of employee in ongoing position
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Owner-builder issued with Prohibition notice — Whether inspector had power to issue Prohibition Notice — Whether residential construction site was a “workplace” – Whether construction of dwelling by an owner-builder constituted an “undertaking” within the meaning of the Work Health and Safety Act 2011 (NSW) – Whether an owner-builder is a “person conducting a business or undertaking” and a “worker” within the meaning of the Work Health and Safety Act 2011 (NSW) – Whether inspector held requisite reasonable belief as required by s 195 before issuing Prohibition Notice
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public Sector Disciplinary Appeal – Procedure — Adjournment of hearing granted due to illness of appellant’s counsel
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision revoking order made under s 173 of the Police Act 1990 – whether Commissioner at first instance misapprehended or misapplied onus of proof under Police Act – whether Commissioner failed to conduct fresh and independent review – whether Commissioner erred in finding that the alleged misconduct was implausible – whether Commissioner failed to have regard to the public interest in the manner required by the Police Act – whether the Commissioner erred in finding that the public interest requires the proper investigation of disciplinary issues
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Appeal from motion seeking order that Commissioner examine documents over which privileged claimed pursuant to s 133 of the Evidence Act 1995 (NSW) and an order that applicant be granted access if documents not privileged – Application of Division 1, Part 3.10 of Evidence Act to pre-trial production of documents in the Commission – Meaning of “client” for the purposes of determining if documents privileged – Solicitor as agent for the client – Employees as agent for the employer
Judgment of
Chief Commissioner Constant, Commissioner Muir and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing application for reinstatement of injured worker for want of jurisdiction – whether Commissioner failed to apply the correct test – whether Commissioner had regard to irrelevant considerations – whether applicant denied procedural fairness
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – Application for dispute orders – Whether in the public interest for orders to be made – Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Remuneration EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Interpretation
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Interpretation EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Relief EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Arbitration EMPLOYMENT AND INDUSTRIAL LAW — Contract — Terms — Implied terms
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public Sector Disciplinary Appeal - Procedure— Late application for witness to give evidence by AVL due to her being away on holiday with her parents and she is caring for her injured father and breast feeding her four-month-old baby — No evidence of steps taken to ensure witness’ attendance or to explain that the late application was not wholly due to conduct of the witness — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Variation – application by employer for creation of new classification – counter application by HSU – whether substantial reason for variations and not contrary to the public interest – whether proposed rates of pay would set fair and reasonable conditions of employment – whether HSU application amounts to extra claim or contrary to wage fixing principles – presumption that award provides fair and reasonable conditions of employment – whether presumption rebutted
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Jurisdiction of the Commission - Whether revocation of appointment as ‘Leading Senior Constable’ constitutes ‘reviewable action’ within the meaning of s 173 of the Police Act 1990 (NSW) – Whether revocation was action taken due to officer’s misconduct or for some other reason – Determined that revocation of appointment was due to findings made that officer had engaged in misconduct – Revocation of appointment is ‘reviewable action’ – Commissioner’s motion seeking that application for review of revocation be set aside or summarily dismissed, dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – whether Commissioner erred in deciding not to award reinstatement or re-employment of applicant – whether Commissioner provided adequate reasons for his decision – whether matters arising on appeal warranted the grant of leave to appeal
Judgment of
Commissioner Sloan, Commissioner Webster and
Commissioner O’Sullivan
EMPLOYMENT AND INDUSTRIAL LAW - work health and safety – cancellation of provisional improvement notice – external review – principles to the approach of the review – point of time for review – whether inspector on review of a provisional improvement notice has a general discretion to cancel, vary or confirm – Commission may consider contemporaneous factual circumstances in an external review – the LHD’s compliance with provisional improvement notice is relevant to the Commission’s exercise of discretion – improvement notice issued at the time of the cancellation of the provisional improvement notice is relevant to the Commission’s exercise of discretion – variation sought would be significant departure from the provisional improvement notice - decision to confirm the internal reviewers decision to confirm the cancellation of the provisional improvement notice
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation — Nominal term of Award had expired, however no proposal to amend the nominal term or to seek new award – Factual circumstances justifying variation of Award rather than making of a new award
COSTS – Party/Party – Appeals – leave to appeal granted but appeal dismissed – application for costs on the appeal – whether the Commission is empowered to award costs in appeals from decisions under Ch 2 Pt 7 of the Industrial Relations Act 1996
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – allegation that respondent failing to comply with applicable award in establishing rosters – notifier seeking interpretation of award and recommendations – whether evidence reveals breach of award – whether Commission’s intervention warranted
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – industrial action - dispute orders – paramedics – non-attendance to low acuity cases for 24 hours - public interest – risk to public safety – objects of the Act – orders made
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Appeals – Leave to appeal in respect of dismissal of unfair dismissal application — Application to lead further evidence — Principles applicable to grant of leave for the reception of further evidence — Leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Muir and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Removal of Police Officer — Application for Review pursuant to s 181E of Police Act 1990 (NSW) —Allegations of misconduct— Application Dismissed
EMPLOYMENT AND INDUSTRIAL LAW - Appeal from two decisions – application for leave to appeal –unfair dismissal application – victimisation application – no error of law identified – leave to appeal refused in both appeals
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from interlocutory decision to allow evidence to be adduced – evidence not called at hearing – whether utility in granting leave to appeal EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against principal decision – challenges to findings of facts at first instance – whether appeal disclosed error in principal decision warranting grant of leave to appeal – whether failure to make orders for lost remuneration and continuity of service unreasonable and unjust – consideration of seriousness of findings of Commissioner at first instance and other orders made EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – cross-appeal against principal decision – challenges to findings of facts at first instance – whether appeal disclosed error in principal decision warranting grant of leave to appeal – whether the absence of evidence for a particular finding and a related denial of procedural fairness warrants the grant of leave to appeal
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT LAW - Public Sector Disciplinary Appeal – serious allegations made against teacher of special needs children – witness evidence of conduct not reliable – onus of proof subject to Briginshaw principles - Jones v Dunkel inference drawn – some but not all misconduct proven – appeal allowed – appellant to receive a warning and placed on a performance improvement plan – appellant not a risk to children
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Granting of relief pursuant to s 89 of the Industrial Relations Act 1996 (NSW)
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Application brought 250 days out of time – Application to extend time to lodge application - Unrepresented litigant - Extension opposed by Respondent – Substantial delay insufficiently explained – No other factor indicating justice of case requires exercise of discretion in favour of applicant – Extension of time refused – Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Police -Removal – Failure to comply with direction requiring vaccination against COVID-19 – Lawful Direction – Direction does not need to be reasonable – Whether direction complied with by not performing duties – Late raising of arguments by Applicant contrary to procedure set out in s 181F(1) – Whether direction contravened no extra claims clause in Police Award – Validity of delegation of discretion to grant exemption from requirement to be vaccinated – Reasonableness of denial of request for exemption – Conduct contrary to s 7 of Police Act 1990 (NSW), reg 8 of Police Regulation 2015 (NSW), s 28 of the Work Health and Safety Act 2011 (NSW) and NSW Police Force Code of Conduct and Ethics – Applicant went on recreation leave the day after deadline for first dose of vaccine and a week later, until date of removal, was certified as unfit to work – Applicant has not discharged onus – Application dismissed
WORKERS COMPENSATION — Protection of injured workers — Reinstatement of worker – Jurisdiction – Whether worker dismissed as a result of workplace injury
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award – forfeiture of “flex hours” by lawyers working in the Office of the Director of Public Prosecutions – consideration of the circumstances in which the lawyers work – consideration of extent of “flex hours” forfeiture – whether proposed award would be effective to prevent forfeiture – consideration of other issues arising – whether intervention of Commission warranted
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee dismissed for failure to comply with employer’s requirement to be vaccinated against COVID-19-whether the requirement to become vaccinated against COVID-19 was a lawful and reasonable direction- whether dismissal otherwise harsh, unreasonable or unjust.
EMPLOYMENT AND INDUSTRIAL LAW — Removal of Police Officer — Application for Review pursuant to s 181E of Police Act 1990 (NSW) —Alleged Unreasonable use of force — Application Dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal granted – Appeal upheld – whether appeal raises substantial issues of law – whether utility in granting leave to appeal – requirement of s 241 met by providing a medical certificate stating the employee is fit for the employment sought – no requirement that the medical certificate is a “true statement” of the workers fitness – finding of fitness must be based on medical evidence – no medical evidence to support conclusion the worker was fit – application dismissed
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking order that the applicant be granted access to documents over which privilege claimed – whether documents the subject of privilege – whether privilege had been waived – whether Commission ought to inspect the documents to determine the issue – second notice of motion seeking leave for the applicant to issue a summons to an individual – whether legitimate forensic purpose in issuing summons
EMPLOYMENT AND INDUSTRIAL LAW – industrial disputes – Dispute orders – industrial action – public interest considerations – impact on families - dispute orders made
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal – Substantial issues of principle or law – Wider implications for the Commission’s jurisprudence WORKERS COMPENSATION – Protection of injured workers – Reinstatement of worker – Discretion of Commission if worker is fit to return to work
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — WORK HEALTH AND SAFETY – Rights of WHS entry permit holders to inspect and make copies of documents pursuant to ss 118(1)(d) and 120(2) – Orders sought pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) for the production of documents – Whether WHS entry permit holders reasonably suspected that a contravention of the Work Health and Safety Act 2011 (NSW) had occurred or was occurring and whether they entered the workplace for the purpose of inquiring into a suspected contravention - Effect of failure to comply with notice requirements stipulated in ss 120(3) and 120(4) and reg 29 of the Work Health and Safety Regulations 2017 (NSW) - Extent of particulars of contravention required in a Notice of Entry – Relevant PCBU not required to create bespoke documents in order to comply with ss 118(1)(d) or 120(2) – Whether documents sought under s 118(1) (d) were kept at, or were accessible from a computer that is kept at, the workplace – Where disclosure of documents could contravene the Privacy and Personal Information Protection Act 1998 (NSW) and/or the Health Records and Information Privacy Act 2002 (NSW) – Whether documents requested were directly relevant to a suspected contravention – Whether the Commission should exercise its discretion and not make orders requiring production of documents – limited orders for production made
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – whether order of Commissioner at first instance requiring person’s name to be removed from “not to be employed list” was beyond power – whether Commissioner erred in finding that allegation of misconduct could not be sustained – whether matters arising on appeal warranted the grant of leave
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Appeals – application for leave to appeal – Commissioner at first instance exercised discretion not to grant orders sought pursuant to ss 136 and 137 of Industrial Relations Act 1996 to prevent medical retirement of police officer pursuant to s 94B of the Police Act 1990 – no practical utility in appeal –– appeal raises significant questions with implications for jurisprudence of Commission – leave to appeal granted – relevance of collective character of dispute in exercising discretion to grant relief in industrial dispute proceedings – Collective character relevant to making dispute orders pursuant to s 137 – appeal dismissed
APPEAL – leave to appeal – principles to apply – whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – appeal against decision not to extend time – date of termination of employment - exercise of discretion - leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Applicant intervened on a volunteer basis in a stranger’s family law dispute while on unpaid leave and mentioned her employment with the Respondent during discussions with one of the parties to the dispute — Respondent found that the Applicant had engaged in behaviour of an intimidatory and bullying nature, had exposed her own child to risk, had engaged in secondary employment or unpaid work without approval and had failed to properly manage a conflict of interest and dismissed her for misconduct - Dismissal found to be harsh, unreasonable and unjust – Appropriate remedy for unfair dismissal in circumstances where Applicant sought re-employment or compensation, not reinstatement
EMPLOYMENT LAW - Unfair dismissal – alleged constructive dismissal – correct test – applicant’s dissatisfaction was real and effective initiator of termination of employment – Commission lacks jurisdiction - application dismissed
COSTS — Appeals — leave to appeal refused — costs application refused as a matter of discretion — where appellant held genuine belief that there was public interest in the appeal — where appellant is self-represented — where matter determined quickly
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Police disciplinary appeals — Process to be adopted in s 174 Police Act reviews — Disciplinary transfer — Whether order was unjust or harsh
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Organisations – Registration – cancellation of registration of associations of employing contractors on the basis that they have ceased to exist
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — WORK HEALTH AND SAFETY – Rights and conduct of WHS entry permit holders – Jurisdiction of the Commission to grant relief pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) in respect of a dispute about the exercise of a WHS entry permit holder of a right of entry – Whether there was a current dispute about the future exercise of the right of entry - Statutory interpretation – Whether WHS entry permit holders have a right, pursuant to s 118(1)(b) of the Work Health and Safety Act 2011 (NSW) to consult with the relevant workers in private or whether that provision permitted or required the relevant person conducting a business or undertaking to be privy to the consultation – Power of the Commission to make declaratory orders pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) – Whether WHS entry permit holders reasonably suspected that a contravention of the Work Health and Safety Act 2011 (NSW) had occurred or was occurring - Extent of particulars of contravention required in a Notice of Entry – Identification of ‘relevant workers’ – Conduct of WHS entry permit holders while conducting inquiry into suspected contravention
EMPLOYMENT AND INDUSTRIAL LAW – Awards – application for new award for school psychologists – no controversy award should be made – consensus as to many of the terms of the proposed awards – resolution of matters in contention, including the process for determination of starting salary and the basis of salary progression
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Threatened dismissal of teacher for alleged misconduct — Application for leave to appeal and appeal from dismissal of notice of motion seeking order that proceedings be dismissed for want of jurisdiction — Non-disclosure orders made in proceedings below pursuant to s 164A of Industrial Relations Act 1996 (NSW) — Application by both Appellant and Respondent for non-disclosure orders to be made in respect of appeal proceedings, despite the parties foreshadowing that appeal proceedings and the proceeding below would be discontinued and there would be no hearing of the matter – Whether necessary in the interests of justice for non-disclosure orders to be made - Non-disclosure orders made
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – paramedics with credentials as Intensive Care Paramedics engaged on a casual basis – dispute as to applicable rate of pay – award requires Intensive Care Paramedics to be “appointed to an approved Intensive Care Paramedic position” – whether performing or being ready and willing to perform the work of an Intensive Care Paramedic suffices – whether Commission ought to construe the award as having that meaning – whether to do so would be to grant declaratory relief, beyond the Commission’s jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – casual employee dismissed after 17 days employment – whether exempt from Ch 2 Pt 6 of the Industrial Relations Act 1996 due to having been engaged for “a short period”
Employment Law- hearing de novo – disciplinary action – what constitutes misconduct for the purposes of s 69 of the Government Employment Sector Act 2013 (NSW) – whether misconduct occurred and if so whether the disciplinary penalty imposed was correct in all the circumstances
POLICE – application for review of disciplinary order – whether order is beyond power or harsh, unreasonable, or unjust –whether alleged conduct occurred
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Approval and creation – Conciliation - Recommendation made to resolve impasse - Proposal for trial of health screening program
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking order that the Commission order the Transport Secretary to appear in person to give evidence or, in the alternative, that the applicant be granted leave to issue a summons to him – leave also sought to issue summonses to attend and give evidence to two other witnesses – whether summonses would have a legitimate forensic purpose
EMPLOYMENT AND INDUSTRIAL LAW – Police -removal – Vaccination – Lawful Direction – Direction does not need to be reasonable – applicant has not discharged onus – misconduct – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – paramedic attended anti-lockdown protest – livestreamed event and made commentary critical of lockdown, NSW Police, members of the public and COVID-19 vaccines – whether dismissal for that conduct was harsh, unreasonable or unjust
INDUSTRIAL LAW – unfair dismissal – threatened dismissal – order sought that respondent not dismiss the applicant – specific conduct relied upon in the show cause letter not proven – loss of trust and confidence in the employment relationship – order made restraining the respondent from terminating the applicant on the basis of particular conduct not proved – no restraint made on the basis of loss of trust and confidence and breakdown of relationship
APPEAL – application for leave to appeal – whether findings of fact open – no substantial issue of principle or law having wider implications – no demonstrable error disclosed – leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Webster and Commissioner Muir