Health Services Union on behalf of Di Palma v Health Secretary in respect of EHealth NSW

The Dispute Notification

1. The dispute notification ("the Notice"), firstly set out some of the factual background and then went on to identify the following matters as being in dispute: 1. Payroll issues of Ms Di Palma, including annual leave and workers compensation payments: 2. The substantive position of Ms Di Palma prior to her secondment: 3. the current employment status of Ms Di Palma, including her position title, reporting lines, duties and obligations, recurrent delegations along with her position description and pay band; and 4. the provision of information relating to the decision to cease the secondment including documents justifying the decision, provision of business records and workplace structure.
2. The notifier then set out Ms Di Palma's preferred outcome, which included: 1. she is appointed to her preinjury position of the HSM5 at 100% of the band; 2. the Partnership Manager position is made permanent; 3. the bullying complaint made by Ms Di Palma is reviewed by a third party; and 4. there be a mediation arranged between Ms Di Palma and others to repair the ongoing working relationship.
3. Following this, the notifier made the following submission in the Notice: the HSU submits that the unilateral and unexplained decision to cease Ms Di Palma's secondment, a position which he held for 3 years and at no point was notified of any imminent cessation, amounts to a breach of section 210 (1) (g) of the Industrial Relations Act.
4. The Notice did not set out any proposed relief nor claim in relation to the alleged contravention of s. 210 of the Act.

The Proceedings

1. The Dispute was the subject of a compulsory conference on 25 November 2021 and was listed for report back on 13 and 21 December 2021.
2. Following the second report back on 21 December 2021, a certificate of attempted conciliation was issued and orders were made for the filing and serving of outlines of submission and evidence.
3. The Notifier in its' outline of submissions filed on 7 February 2022, stated that they were no longer pressing matters concerning Ms Di Palmas payroll issues, her substantive position and her current employment status on an interim basis.
4. The Notifier stated that they were pressing a claim of victimisation, seeking orders pursuant to 213 of the Act and that it would seek to either vary the Dispute into a claim under s 213 of the Act by way of s 170 of the Act or alternatively that the Commission accept an application made out of time pursuant to ss 213(4) of the Act.
5. The Dispute was the subject of a hearing which was held on 12 and 13 April 2022. At the beginning of the Hearing the Notifier was given an opportunity to consider whether it wished to make either of the applications foreshadowed in the 7 February 2021 outline of submissions. Following an adjournment to allow such consideration the notifier stated that it did not wish to make either application.
6. During the hearing, the notifier adduced evidence from Ms Di Palma and the respondent adduced evidence from the following witnesses: 1. Fahoud Salimi; 2. Kieron Martin McGarry; and 3. Dominic Trewick.
7. Following the hearing the parties provided written submissions and the notifier in its' submissions amended the orders sought to be that the respondent pay Ms Di Palma an amount $12,082.62 and amend her employment to reflect that she held the position of Partnerships Manager at HSM5 continuously from 27 August 2018 to 19 May 2022 to pursuant to s. 213 of the Act (the "Relief"). This amended relief was sought on the basis that Ms Di Palma had resigned from her employment with the respondent on 19 May 2022.
8. A further set of written submissions were filed and served in response to the following request made by the Commission on 29 June 2022: …the parties are to provide further written submissions by 4.00pm Friday 8 July 2022, as to the effect, if any, that sub-section 213(3) of the Industrial Relations Act 1996 has with respect to the Commissions capacity in this matter to make the orders sought by the notifier.

Issues

1. The issues which require determination are as follows: 1. Is the Commission empowered to make the Relief sought by the notifier?; and if the answer to 1 is yes 2. Should the Relief be granted.

Jurisdiction

1. The notifier submitted that the Commission has the power to make the orders sought as the power under s136(1)(d) permits the Commission in resolving the dispute to make any orders that it is otherwise authorised to make under the Act, which includes orders under s 213.
2. In support of this proposition, the notifier relied on the following passage from the decision of Schmidt J in Notification under section 130 by the New South Wales Teachers Federation of a dispute with the Department of Education and Training re casual teacher [2003] NSWIRComm 145: 32 Apart from dispute orders, s136(1)(d) contemplates the making of various types of orders which the Commission is 'otherwise authorised to make'. This includes orders of reinstatement, re-employment and compensation under s89, in relation to unfair dismissal; orders for reinstatement of injured workers under s94; even demarcation orders under s294.
3. As to the time limitation within ss 213(3) of the Act, the notifier argued that this provision only applied to applications made under s 213 and as the Relief was sought under s 169, it did not apply to these proceedings.
4. Secondly, the notifier submitted that its' submission in respect to the time is consistent with the object of the Act set out in ss 3(g) of the Act, which is that the Commission should resolve industrial disputes in a prompt and fair manner and with a minimum of legal technicality.
5. Thirdly, by reference to decision of Boland J in Police Association v NSW Police (No 3) [2005] NSWIRComm 243, the notifier submitted that s136(1)(d) empowers the Commission to engage the totality of the Act to resolve industrial disputes, and it may do so either under its own initiative or by way of application by the notifier pursuant to s136(2).
6. Finally, the notifier advanced that the time limitation did not apply on the basis that as the onus in ss 210(2) of the Act did not apply and that the respondent had been on notice of the claim of victimisation by way of the Dispute, which was filed within 21 days of the alleged victimisation.
7. In reply, the respondent submitted that the Commission did not have the power to grant the Relief in the manner sought. Firstly, it submitted that the Commission's power to make orders to make order under s 136 are for the purposes resolving industrial disputes as compared to the power under s 213 which limits the power to make orders for the sole purpose of enforcing the provisions of Part 1 of Chapter 5 of the Act. On this basis, the respondent argued that the Commission is not authorised to make s 213 victimisation orders in an industrial dispute.
8. As to the ss 213(3) time limitation, the respondent submitted that it did apply and the notifier had not filed an application seeking the Relief within the 21 days.
9. The respondent in support of both contentions relied on the decision of Commissioner Stanton in New South Wales Nurses and Midwives' Association v the Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1047 ("Western LHD"). In particular, the respondent relied on the following passages: 131. The operation of s136 of the Act is invoked by the present industrial dispute before the Commission. Section 136 provides that the Commission may make a recommendation, give directions or make another order of a kind that the Commission is authorised to make under the Act. In that regard, the authorities support the proposition that "any other order the Commission is authorised to make" means an order of the kind specifically set out in the Act. 132. I do not consider Parliament intended s136 to be used to "order an employer not to carry out a threat to victimise an employee or not to make any further such threat' in circumstances where victimisation is clearly dealt with by the comprehensive and express code contained in ss 210-213. 133. In circumstances where the Association has not relied on ss 210-213 of the Act at any stage of the proceedings until now, it should not now be permitted to rely on the victimisation provisions given the time limitations involved in such proceedings and, the fundamental manner in which it changes the current dispute proceedings including, for example, the presumption that exists under s 210(2) in proceedings that would not otherwise apply in the context of a s 130 dispute.
10. I do not accept the respondent's position that the Commission can not make orders under 213 in resolution of an industrial dispute pursuant to ss 136(1)(d). However, I do agree with their submission that the time limitation under ss 213(3) does apply.
11. Firstly, orders under s. 213 of the Act are ones which the Commission has power to make and are caught by ss 136(1)(d) of the Act. In this respect I do not agree with Commissioner Stanton in Western LHD at [132], to follow this logic would mean that other specific orders such as reinstatement under Part 5 of the Act would not be available as there is an express code provided for unfair dismissal.
12. Secondly, the Relief sought by the notifier is aimed at enforcing the provisions within Part 1 of Chapter 5 of the Act, particularly when one has regard to identification in the Notice of the submitted alleged contravention of s 210(1)(g).
13. The notifiers submissions in relation to the time limitation in s 213(3) mistake the true nature of an order made under some express provision through the gateway of ss 136(1)(d). The proper characterisation of such orders was provided in the following passage of Boland J in the Police Association decision relied on by the notifier: [59] Section 136(1)(d) is merely facilitative; it directs the Commission to the relevant express power in the statute under which the order may be made. Similarly, in arbitration proceedings, any order reinstating an employee (other than a dispute order under Pt 2 of Ch 3) would be an order under s 89 of the Act or, in other words, a "decision of the Commission under Part 6 of Chapter 2.
14. Thus, if the Relief it was granted, it would be an order made under s 213 and be subject to the time limitations in s 213(3). To find otherwise, would be to permit an avoidance of the time limitation for an application seeking orders under s 213 through s 136(1)(d) of the Act.
15. As set out in the background, there was no application for orders or relief sought by the notifier in the Dispute in relation to the submitted breach of ss 210(g) of the Act.
16. The first time the notifier formally put the Commission and the respondent on notice that it was seeking the Relief was in its' outlines of submissions on 7 February 2022, 3 months after the alleged act of victimisation which took effect on 5 December 2021.
17. The notifier at no stage made an application under ss 213(4) of the Act to extend time, even when given a clear opportunity to do so at the beginning of the hearing and having flagged that it would do so in its' outlines of submissions.
18. In the circumstances, the Commission cannot make the Relief sought by the notifier and therefore the answer to the first question is no and accordingly I do not need to consider the second question.
19. For the reasons provided above, the notification is dismissed and I so order.

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