Director-General, Department of Premier & Cabinet v HSUeast

IRC 1194 of 2011 IRC 1195 of 2011 IRC 1196 of 2011 IRC 1197 of 2011 IRC 1198 of 2011 IRC 1236 of 2011 IRC 1237 of 2011

Judgment 1BATHURST CJ: These are proceedings brought by the Director-General, Department of Premier and Cabinet ("the applicant") seeking a declaration that orders made by the fourth respondent, the Industrial Relations Commission of NSW ("the Commission") in Health Employees Conditions of Employment (State) Award and other Awards [2011] NSWIRComm 129 ("the proceedings") is of no effect. Alternatively, the applicant seeks an order in the nature of certiorari quashing the orders made in the proceedings. The application was brought pursuant to the provisions of s 69(1), s 48(2)(d) & (e) of the Supreme Court Act 1970. 2The order in question was to the following effect: "(1)Each of the Awards listed in Annexure A to this Decision is varied in the terms of the relevant amended application filed by HSUeast on 16 August 2011. (2)The variations shall take effect from the beginning of the first pay period to commence on or after 1 July 2011." Annexure A sets out a series of awards generally relating to employees in the public health sector. The first respondent ("HSU"), who was the applicant for those awards, is an industrial organisation of employees in that sector. The applications referred to in the orders sought increases of 2.5 per cent in rates of pay and allowances in various awards in the health care sector, the increase stated to be to "provide for salary variations permitted in accordance with the NSW State Government's 'NSW Public Sector Wages Policy 2011'". 3The applicant's principal contention was summarised in par [37] of its written submissions as follows: "In Health Employees Conditions of Employment (State) Award and other Awards [2011] NSWIRComm 129 the Fourth Respondent found it could make orders awarding a 2.5% salary increase and allow the First Respondent's additional claims to be heard in a later hearing to determine the extent to which, if any, wages and salaries could be increased beyond 2.5 per cent. In doing so the Fourth Respondent has acted beyond its jurisdiction and the orders made by the Fourth Respondent on 27 September 2011 are inconsistent with Regulation 6(1)(d) and have no effect pursuant to s 146D(3) of the Industrial Relations Act." 4The issue of whether the Commission could, within jurisdiction, make an order awarding a 2.5 per cent salary increase, whilst reserving the right for additional claims for a greater increase to be heard at a later time, would depend on the interrelationship of ss 16 and 17 of the Industrial Relations Act 1996 ("the Act") with s 146C of the Act and reg 6 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ("the regulations"). Section 146C of the Act so far as relevant provides as follows: "146CCommission to give effect to certain aspects of government policy on public sector employment (1)The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees: (a)that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and (b)that applies to the matter to which the award or order relates. (2)Any such regulation may declare a policy by setting out the policy in the regulation or by adopting a policy set out in a relevant document referred to in the regulation. (3)An award or order of the Commission does not have effect to the extent that it is inconsistent with the obligation of the Commission under this section. ... (7)This section has effect despite section 10 or 146 or any other provision of this or any other Act." 5Reg 6, so far as relevant, is in the following terms: "6Other policies (1)The following policies are also declared, but are subject to compliance with the declared paramount policies: (a)Public sector employees may be awarded increases in remuneration or other conditions of employment that do not increase employee-related costs by more than 2.5% per annum. (b)Increases in remuneration or other conditions of employment that increase employee-related costs by more than 2.5% per annum can be awarded, but only if sufficient employee-related cost savings have been achieved to fully offset the increased employee-related costs. For this purpose: (i)whether relevant savings have been achieved is to be determined by agreement of the relevant parties or, in the absence of agreement, by the Commission, and (ii)increases may be awarded before the relevant savings have been achieved, but are not payable until they are achieved, and (iii)the full savings are not required to be awarded as increases in remuneration or other conditions of employment. ... (d)Awards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later time or allow extra claims to be made during the term of the award or order). However, this does not prevent variations made with the agreement of the relevant parties." 6The applicant contends the Commission had no power to make an award whilst reserving the right to the HSU and the second respondent Australian Salaried Medical Officers Federation (NSW) ("ASMOF") to make additional claims because of the provisions of reg 6(1)(d), which requires awards to resolve all issues the subject of the proceedings. 7However, a threshold question which arises is whether the Commission made an order of the nature complained of.