59 Sections 136 and 137 of the Industrial Relations Act appear in Parts 1 and 2 respectively of Chapter 3, Industrial Disputes. Section 136 provides:
136 Arbitration of dispute
(1) The Commission may, in arbitration proceedings, do any one or more of the following:
(a) make a recommendation or give a direction to the parties to the industrial dispute,
(b) make or vary an award under Part 1 of Chapter 2,
(c) make a dispute order under Part 2,
(d) make any other kind of order it is authorised to make (including an order made on an interim basis).
(2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.
60 Section 137 provides:
137 Kinds of dispute orders
(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:
(a) The Commission may order a person to cease or refrain from taking industrial action.
(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.
(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.
(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.
(2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer.
(3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.
61 The orders sought by the ASU are under ss 136 and 137(1)(c) where the Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.
62 There was no issue that an industrial dispute existed between the ASU and Sydney Water. The subject matter of the dispute, as earlier explained, involved the operation of Sydney Water's injury management policy. In the course of that dispute there is no issue that Sydney Water took a decision to terminate the employment of Mr Bagala and Mr Austin in accordance with its medical retirement policy. The terminations have not yet been effected pending the outcome of this proceeding.
63 The proposed terminations have a connection to the subject matter of the dispute because part of the ASU's complaint is that in applying its injury management policy Sydney Water is not making sufficient effort to find suitable employment for injured employees nor is it putting sufficient effort into re-training employees who may have been injured so that they are able to perform work other than pre-injury duties. The ASU contends that if proper efforts had been made by Sydney Water to find suitable employment for Mr Austin and Mr Bagala, or had Sydney Water provided the two employees with re-training, there would be no need to medically retire them.
64 Mr Lynch contended in his submissions that feelings amongst employees were strong over what were perceived to be inadequacies in Sydney Water's approach to injury management and unless the dispute was resolved these feelings might boil over into industrial action.
65 On the face of it, s 136, in combination with s 137(1)(c), gives the Commission the power to exercise its discretion to order Sydney Water not to dismiss Mr Austin and Mr Bagala. The section, I think, owes its existence to the Parliament's concern, in introducing the Industrial Relations Bill 1995, that the Industrial Relations Act 1991 did not invest power in the Commission, in dealing with an industrial dispute, to reinstate or re-employ any one or more employees who were dismissed in the course of an industrial dispute or whose dismissal resulted in an industrial dispute, other than in accordance with the specific provisions dealing with unfair dismissals in Chapter 3, Part 8 of the 1991 Act: see Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39; Hansard, Legislative Council, 23 November 1995, 3851.
66 It is likely that the Parliament's principal intention in providing for s 137(1)(b) and (c) was to provide the Commission with the means of dealing with situations where a dispute existed and in the course of the dispute employees taking industrial action in support of claims were either threatened with dismissal or were dismissed because of, or for reasons related to, the industrial action. A good example of that was the situation addressed by the Commission in Woolstar where the employer dismissed approximately 400 employees, members of the Federated Storemen and Packers Union of Australia, NSW Branch, in the course of an industrial dispute.
67 The present circumstances are not the same as those in Woolstar. However, it seems to me that orders of the kind in s 137(1)(c) may be made to prevent the termination of employees threatened with termination in a situation where their future - that is, whether or not they are to be retained in employment - depends on the outcome of the arbitration of the subject matter of an industrial dispute. Moreover, I agree with the observation of Schmidt J in Hill at 205 that it is evident on the face of ss 136 and 137 that the Commission has the power to make an order on an interim basis, that a person who has been threatened with dismissal, not be dismissed.
68 The next matter for consideration is whether orders of the kind under s 137(1)(c) should be made in this case and what are the tests to be applied in determining that question. Both parties relied on Hill, which, of course, employed the standard tests applied to the granting of injunctions as enunciated by Mason ACJ in Castlemaine Tooheys. Those tests have been applied in numerous cases before the Commission in circumstances of threatened dismissal, usually in the context of s 89(7) of the Act, and whilst I am not entirely satisfied that the approach in Hill is necessarily appropriate in all cases for the granting of interim relief under s 136 and s 137, it is my intention to adopt it in this case as a guide to achieving a fair and proper outcome. In doing so, the Commission cannot lose sight of its duty under s 163(1)(c) of the Act to act according to equity, good conscience and the substantial merits of the case and if that requires some modification of the tests applied in Hill to the peculiar circumstances of the case then so be it.
69 The question of whether there is a serious issue to be tried, or in this case arbitrated, is complicated by the approach the parties took to this question. The ultimate issue to be arbitrated is whether Sydney Water's approach to injury management is adequate, but both parties in their respective submissions on whether there was a serious question to be arbitrated have blurred the issue of the adequacy of the respondent's injury management policies and practices and the issue of the termination of employment of Mr Bagala and Mr Austin. The focus of submissions on whether there was a serious issue to be tried was on Sydney Water's treatment of Mr Austin and Mr Bagala under its injury management policies and practices rather than the wider question of the policies and practices themselves.
70 The approach I propose to take, however, in considering whether there is a serious question to be arbitrated, is whether Sydney Water's treatment of Mr Austin and Mr Bagala gave rise to a prima facie case that such treatment reflected an inadequate injury management scheme.