Industrial Relations Secretary on behalf of Corrective Services NSW v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249

Visscher v Fripp [2024] NSWIRComm 1075; 337 IR 202

Crown Employees (Correctional Officers, Department of Communities and Justice - Corrective Services NSW) Award

Industrial Relations Secretary on behalf of Corrective Services NSW (Notifier)

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Respondent)

1. At around 10.30am on 30 October 2025, the Industrial Relations Secretary on behalf of Corrective Services NSW (CS NSW) lodged a notification of an industrial dispute with the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (PSA) pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (IR Act).
2. At 8.00am on 30 October 2025 the Cessnock Correctional Centre sub-branch of the Prison Officers Vocational Branch of the PSA (POVB) went on strike. The previous evening the Cessnock Correctional Centre sub-branch had passed the following motion:

"We the members of Cessnock Correctional Centre strongly express our disgrace and frustration regarding the decision by Magistrate R Richardson in Cessnock Local Court on 29 October 2025. The decision to allow the inmate who assaulted 4 correctional officers in February this year, the possibility of parole next month, due to the punishment handed down at court of a community corrections order is grossly inadequate due to the violent unprovoked attack with all 4 officers hospitalised where 2 officers will never work again.

Cessnock POVB members feel increasingly vulnerable and believe that current judicial responses fail to adequately deter inmate violence, leaving officers exposed to unacceptable risks including in this case a career ending incident for 2 officers with insufficient consequences for offenders.

Cessnock POVB will withdraw labour for 48 hours commencing at 0800 on 30 October 2025 to reconvene at 0800 on 1 November 2025.

Cessnock POVB request the PSA advocate for mandatory custodial sentencing for the assault of law enforcement officer (not police).

Cessnock POVB request endorsement of this motion by the State Executive, the PSA and request for state wide support.

Motion carried unanimously.

Cessnock POVB Subbranch"

1. CS NSW had no notice of the strike and only became aware of it when staff walked out early on 30 October 2025, causing an immediate lock down of inmates at Cessnock Correctional Centre and executive staff having to step in to fill the breach.
2. The dispute was listed for an urgent compulsory conference at 1.00pm on 30 October 2025. At that time the Commission was informed by the representative for the PSA, Mr Pearce, that the motion of the Cessnock Correctional Centre sub-branch had been endorsed by the POVB State Executive and the PSA and that as at 1.00pm all correctional officers across the state and some administrative officers of CS NSW, had gone out on strike and would remain on strike until 8.00am on Saturday, 1 November 2025. Mr Pearce advised the Commission that the members considered that the strike was necessary "to convey to the judiciary and the government how serious this issue was for the members".
3. The relief sought by CS NSW in the notification of dispute was for "the POVB at Cessnock, and other locations if they also withdraw their labour, to return to work" and for the POVB at Cessnock Correctional Centre to adhere to the "Agreed Procedures for Settlement of Grievances and Disputes" contained in the Crown Employees (Correctional Officers, Department of Communities and Justice - Corrective Services NSW) Award (Award).
4. During the course of conciliation, as I will explain in more detail later, CS NSW indicated that each of three specific requests made by the PSA, would be met. In those circumstances, and having been made aware of the safety risks the strike action posed to staff, inmates and the citizens of NSW, and the lack of notice given to, and engagement with, CS NSW by POVB prior to the commencement of the strike, I recommended to the PSA, pursuant to s 134(1) of the IR Act that the industrial action cease by 6.00am on 31 October 2025. In giving the recommendation I stressed to the parties I was not foreclosing the possibility of a different outcome at arbitration, however I noted that it appeared to me that the PSA faced significant hurdles in resisting disputed orders being made.
5. Unfortunately, the dispute was unable to be resolved through conciliation, and a Certificate of Attempted Conciliation was issued and provided to the President. Mr Pearce informed me that the POVB did not "accept the recommendation". In the circumstances, pursuant to s 134(2C), I directed the PSA to provide to me, at a convenient time during the course of the arbitration, written reasons why the PSA did not propose to comply with the recommendation. I informed the parties that I intended to refer to those reasons in my decision in respect of the application for dispute orders.
6. Arbitration of the matter commenced at 4.00pm, with CS NSW seeking the following dispute orders, a copy of which it had provided to the Commission and to the PSA during the course of the conciliation, as I had directed:

"1. Pursuant to s137(a) of the Act that the employees of CSNSW who have withdrawn their labour effective from or thereafter the morning of 30 October 2025, are ordered to cease industrial action and return to work as per their normal shift roster without delay.

2. That the PSA be ordered to issue the return to work order to members without delay through all reasonable means, and to do so without delay.

3. That the PSA be ordered to cease all forms of industrial action related to the decision of Magistrate Richardson on 29 October 2025, and all associated motions related to that industrial action."

1. The PSA did not object to the matter proceeding immediately into arbitration.
2. Following the hearing of the matter I advised the parties that I intended to make dispute orders, but not in the form sought by CS NSW. I considered that there were a number of issues with the form of the orders sought by CS NSW, for reasons that are presently unnecessary to articulate. I provided the parties with alternative draft dispute orders and adjourned briefly to allow the parties to consider and if need be, suggest amendments to the proposed orders, which they did. I also inquired of the parties whether they wished to receive my reasons for making the dispute orders that evening, which would mean the matter would not be concluded for at least a further hour or more, which would hold up the execution of the orders, or whether they would prefer to receive my reasons at 9.30am the following day. Both parties indicated that they preferred to have the orders made immediately, with reasons delivered the following day. These are my reasons for making dispute orders on 30 October 2025, which have been prepared without the benefit of transcript. The orders I made were:

(1) The Public Service and Professional Officers Association Amalgamated Union of New South Wales (PSA), its officers and employees, and its members employed in Corrective Services NSW, must immediately take steps to cease organising and refrain from taking any industrial action related to the decision of Magistrate Richardson delivered on 29 October 2025, on and from 6.00am on 31 October 2025.

(2) The PSA, its officers and employees, must by no later than 6.00pm on 30 October 2025 publish these orders and directions in a prominent position on its website and social media accounts.

(3) The PSA must communicate to its members that the strike action will no longer take place in compliance with the above orders.

(4) The PSA, its officers, employees, agents and members must not influence, advise, authorise, support, encourage, direct, aid or abet members of the PSA, including the Prison Officers Vocational Branch, to organise or take industrial action contrary to order 1.

(5) The parties have liberty to apply on 3 days' notice if information emerges justifying the variation of these orders.

(6) The PSA is directed to advise the Notifier, and its legal representatives, in writing by 6.00pm on 30 October 2025, of the steps taken to comply with the orders and directions, including providing a copy of such compliance.

1. I note that CS NSW stipulated the time and date in order 1 and the time in orders 2 and 6, and the PSA voiced no opposition to the form or content of the orders.

1. A copy of the POVB's motion and a copy of the "Agreed Procedures for Settlement of Grievances and Disputes" contained in the Award were tendered in evidence by CS NSW.
2. CS NSW called Craig Smith, Assistant Commissioner of Corrective Services, Regional NSW, to give oral evidence. Mr Smith has worked for CS NSW for 26 years, including as governor of various corrective facilities.
3. Mr Smith evidence was essentially as follows:

(1) CS NSW had no prior notice of the strike;

(2) staff at Cessnock had walked out early that morning with other facilities thereafter following suit and executive staff members were now managing all correctional facilities with skeleton staff - in a facility where there would normally be 50 - 60 correctional officers, six executive staff were running the facility;

(3) the executive staff running the facilities would not be able to go home until the end of the strike, that is, for 48 hours;

(4) inmates were immediately locked in and would not be allowed out of their cells until the end of the strike, which would likely cause inmates to become distressed and to cause disruption, including by unreasonable use of the 'knock up system' whereby officers may be called to an inmate's cell;

(5) administrative officers at Cessnock Correctional Centre and elsewhere had also gone out on strike;

(6) the facilities were "running unsafe" due to minimal staffing to attend to inmates, putting the staff at the facilities "at great harm" and with staff potentially making unsafe decisions due to working without relief for 48 hours;

(7) hospital escort staff stationed at hospitals would have to remain at the hospitals with their charges until the end of the strike as there would be no one available to relieve them;

(8) inmates on self-harm watch would not get the attention required to keep them safe;

(9) inmates would not be able to have visits or talk to their families by telephone, causing distress to the inmates and their families and children;

(10) criminal courts would not be able to operate properly on Friday, 31 October 2025 as no inmates would be able to attend court due to the lack of escorts to facilitate their attendance;

(11) with executive staff working potentially up to 48 hours to fill the vacancies caused by the strike, when the strike concluded there would be no executive staff available for work as they would need to rest;

(12) Justice Health would not be able to attend to inmates needing medical attention;

(13) having staff work for 24 hours or more was "unsafe all round" and the effect of the strike would be "catastrophic"; and

(14) CS NSW had made real efforts to resolve the POVB's concerns about the sentence imposed on the inmate who assaulted the four correctional officers, and he had personally had a number of phone calls with delegates of the PSA to try to resolve the matter.

1. Mr Smith's evidence was uncontradicted. In cross examination he agreed it was unacceptable for violence against correctional staff to occur, and that he believed the sentence was "manifestly inadequate", although he also agreed that he was not legally qualified to make such a call. The only relevance of this evidence is that it indicates that he, as a senior employee of CS NSW, agrees with the sentiments, if not the actions, of the PSA. The submissions made on behalf of CS NSW suggests that this is the view of CS NSW more generally.
2. Although not formally tendered in evidence, Ms Carvolth for CS NSW informed me from the bar table that CS NSW has made a number of "offers" to the PSA in an effort to resolve the dispute - offers of which I was aware due to having presided over the conciliation. No objection was taken by the PSA to me receiving this evidence in this way, which I am permitted to do pursuant to s 163(1) of the IR Act.
3. As reported by Ms Carvolth, in an effort to allay the POVB's concerns and have members of the PSA return to work before 8.00am on 1 November 2025:

(1) CS NSW has offered to set up a meeting with the Minister for Corrections as early as next week to discuss the POVB's concerns and possible legislative reform;

(2) the Commissioner of Corrective Services will write to the Director of Public Prosecutions (DPP) to ask that consideration be given to appealing the sentence given to the inmate who assaulted the correctional officers; and

(3) the Commissioner of Corrective Services will make submissions to the parole board, which is to meet on Monday to consider the inmate's parole, opposing the granting of parole, (which I understand may be imminent due to the lack of a further custodial sentence).

1. Ms Carvolth submitted that CS NSW had no disagreement with the PSA in respect of the "principle" underlying their action, a submission supported by Mr Smith's evidence, but that resolution of the issue was largely outside of its control. She submitted that it was doing all it could "appropriately and within its statutory authority."
2. She submitted that the evidence was that the strike posed significant safety concerns for inmates, staff and for the citizens of NSW and it was therefore in the public interest for dispute orders to be made.
3. She also submitted that the PSA had failed to comply with the "Agreed Procedures for Settlement of Grievances and Disputes" contained in the Award and in so doing had taken away the ability of CS NSW to engage in a meaningful way with the POVB about the issues arising from the Magistrate's decision. Those procedures relevantly include the following (with emphasis added):

"1. Objectives

1.1 The object of these procedures is the improvement of industrial relations and the development of a spirit of co-operation within CSNSW.

1.2 The parties acknowledge the desirability, in the interests of all concerned of industrial claims being dealt with expeditiously and without resort to industrial action.

1.3 It is the intention that as CSNSW is an essential service industry, problems and disputes should be resolved by discussion and the adoption of common-sense solutions rather than by the resort to industrial action.

...

3. Procedure in Local Issues

3.1 The sub-branch Executive will immediately notify the General Manager of the existence of any industrial dispute or of any resolution passed at a meeting of members of a sub-branch and which may give rise to an industrial dispute.

3.2 The General Manager, as the person responsible for the day-to-day running of the workplace, will endeavour to resolve the matter in discussion with the sub-branch Executive or in the case of the Long Bay Correctional Complex with an official of the sub-branch and a local workplace delegate.

3.3 If any industrial dispute cannot be resolved at this level, the matter will be referred to the next appropriate higher level of management who will attempt to resolve the matter.

3.4 That manager will advise the appropriate higher level of management immediately of any matter which is likely to lead to an industrial dispute or which affects the conditions of employment of Correctional Officers and which has not been resolved in the procedures in subclause 3.2 and 3.3, who will immediately seek to resolve the matter.

3.5 Where the procedures of sub clauses 3.2, 3.3 and 3.4 do not lead to resolution of the industrial dispute, the State Executive will be advised accordingly by the sub-branch Executive. The State Executive will consider the matter promptly and, after discussion if necessary, with the sub-branch Executive, will refer the same to the Association.

3.6 The Association and CSNSW must each immediately notify the other of any industrial dispute which is referred to either of them and the other party will take prompt steps seeking to resolve the dispute through consultation.

3.7 If the Association and CSNSW are unable to resolve the dispute it must be immediately notified by one of the parties, pursuant to the Industrial Relations Act 1996, to be dealt with in accordance with the Industrial Relations Act 1996.

4. Procedure in State-Wide Issues

4.1 Any resolution of a sub-branch which is endorsed by the State Executive or any resolution of the management committee which may lead to an industrial dispute, is to be referred by the officials concerned to the Association which must notify it to CSNSW. The Association and CSNSW will take prompt steps seeking to settle the matter by consultation.

...

5. General Procedures

5.1 The agreed procedures are not be taken as an acknowledgement that industrial action by Correctional Officers will be necessary or proper.

...

5.3 If a resolution be carried at any sub-branch meeting calling for or suggesting industrial action, the sub-branch Executive must immediately notify the State Executive and the Association of the terms of the resolution and it will not be implemented until all the agreed procedures have been completed.

5.4 At least three clear working days' notice must be given by the State Executive to the Association and CSNSW of any intention or proposal for all or any members of the POVB to take industrial action.

5.5 No industrial action will be taken until the agreed procedures have been completed or until a dispute notified pursuant to the Industrial Relations Act 1996 has been heard and determined.

...

6. Safety and Security

6.1 The policy of the Association is that no officer will be required to work in a role which is unsafe but, it does not support any reliance upon a pretext of safety to justify a refusal of duty where no real personal risk is involved. Accordingly, notwithstanding the agreed procedures, the Association upholds the right of Correctional Officers to vary the procedures where the safety of officers genuinely arises.

1. Pursuant to the direction I had made, the PSA provided the following written reasons for not complying with the recommendation I had made in conciliation:

"1. The workers hold a genuine concern about the safety of staff working in our prison system.

2. The safety concerns that gave rise to the decision to take action are urgent and legitimate.

3. The concerns have not been adequately addressed and remain just as relevant now as when they were when our members took the difficult decision to withdraw their labour.

4. Nothing has been resolved beyond a good faith commitment to further talk.

5. Our members continue to work in an environment that doesn't adequately protect their safety or provide sufficient penalty for perpetrators of violence.

6. For these reasons, and respectfully, we will not be complying with the Commission's recommendations."

1. The PSA otherwise led no evidence.
2. Mr Pearce submitted that dispute orders should not be made for essentially the same reasons as the reasons why the PSA decided not to comply with my recommendation. He submitted that the "system" had let correctional officers down. However, he acknowledged the efforts made by CS NSW, which I took to refer to the three actions outlined at [17] above.
3. I inquired of Mr Pearce what more could be done, given the independence of the judiciary, other than what CS NSW has indicated would be done, (being the only actions requested by the PSA with any specificity), to "adequately address" the members' concerns. His response was that essentially the PSA was urging the "cogs of bureaucracy to move more quickly."

1. Sub-sections 136(1) and 137(1) of the IR Act provide that the Commission may, in dealing with an industrial dispute in arbitration proceedings, make a 'dispute order', which includes an order that a person (as specified in sub-s 138(1)) cease or refrain from taking industrial action.
2. It is for the notifier to persuade the Commission that the relief sought should be granted. The Commission's power to grant relief, including the making of dispute orders, is discretionary. There is no presumption that in the face of industrial action an order under s 137(1)(a) of the Act will be made: Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23], cited in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [36]. Equally, however there is no presumption against the making of dispute orders. The exercise of that discretion will be informed by the IR Act as a whole, noting in particular ss 3 and 146, and the circumstances of the case.
3. Section 146 of the Act requires the Commission to take into account the public interest in the exercise of its functions. The Commission might intervene to protect the public interest from the damaging effects of industrial action: Fire & Rescue New South Wales on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013] NSWIRComm 63 at [41].
4. The industrial action in this case was precipitated by understandable anger on the part of correctional officers to the apparently lenient sentence given by a Magistrate of the Local Court to an inmate who severely assaulted four of their number. In saying that their anger is understandable I do not intend to suggest that the sentence was inadequate - I am in no position whatsoever to comment on the adequacy of the sentence one way or the other - only that it is understandable why corrective officers may feel that it was inadequate and that they would consider, as submitted by Mr Pearce, that it sets an "unhelpful precedent" that prison officers' safety is not important.
5. However, as the PSA accepted, the judiciary is an independent arm of government. Neither CS NSW, the Minister, the Attorney General or any other member of the executive government has the power to influence, let alone alter, the sentencing decision of a judicial officer. This is a fundamental tenet of our system of government. No amount of strike action can change that reality and it may be seriously doubted that it would have any effect on future sentencing given that judicial officers are independent and take an oath to act "without fear or favour, affection or ill-will."[1] At best, it may assist in persuading legislators to implement legislative change.
6. While I understand the Attorney General retains the power to commence an appeal against sentence, that power primarily resides in the DPP[2], who is also independent[3], (or the prosecutor if that was not the DPP at first instance, but only on a ground that involves a question of law alone[4]), and the usual course for any citizen aggrieved by a sentence is to make a request to the DPP (and/or the prosecutor if the offence had not been prosecuted by the DPP), to consider whether an appeal ought to be lodged against the sentence. The Commissioner of Corrective Services has already taken this step or will shortly do so. He also proposes to make submissions to the parole board opposing the offending inmate's imminent release.
7. The representative for CS NSW advised the Commission that the Minister for Corrections will make himself available as early as next week to discuss the POVB's concerns and possible legislative reform. The PSA lead no evidence as to the nature of the legislative reform it seeks or what efforts it had made since the assault of the correctional officers to seek such reform. All I know about the reform sought by the PSA is from the PVOB's motion calling for "mandatory custodial sentencing for the assault of law enforcement officers".
8. In Industrial Relations Secretary on behalf of the Department of Primary Industries and Regional Development v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2024] NSWIRComm 1065 ("Fisheries Case") I declined to make dispute orders to stop fisheries officers engaging in work bans which were designed to draw public attention to safety issues confronting fisheries officers and in so doing, to prompt legislative reform which was necessary before the safety measures sought by the union could be implemented. Ultimately, I declined to make dispute orders in the Fisheries Case because, inter alia, the employer was unable to establish there was a risk to the public interest and the evidence showed that the union members had agitated for actions to be taken to improve employees' safety, including by legislative reform, through consultative committees and the like, for over two and half years, to no avail.
9. There is some similarity between that case and this, in that the implementation of some of the safety measures sought by the union in the Fisheries Case were outside of the control of the employer, prompting the union to take industrial action to gain the attention of legislators, and similarly in this case, the sentence to be served by the offending inmate; whether he is to be granted parole; and legislative reform to ensure similar sentences are not meted out in the future, are outside of the control of CS NSW. However, that is the end of the similarity.
10. First, in this matter, there is uncontroverted evidence of a real and present risk to the safety of the remaining staff of CS NSW, inmates and the broader community, including staff, patients and visitors at hospitals. It is unnecessary for me to rehearse these risks further - they are evident and described as being "catastrophic". While the PSA pointed to the safety risks the (inadequate) sentence posed to its members, which I accept are also real as inmates may be emboldened to assault correctional officers if they think they will not receive a further custodial sentence, there is not an identifiable imminent risk to safety in the sense there is from the strike itself.
11. There will also be real disruption to the criminal justice system and while only for two days, such is the complexity of the justice system, an inability to have a court appearance proceed on a given day may result in many days, weeks or even months of additional delay for an accused. As the adage goes, justice delayed is justice denied.
12. Second, the POVB have acted pre-emptively and in disregard for the Award procedure for settling grievances and disputes. The sentence was handed down only yesterday. The appropriate course would have been for the POVB to immediately notify CS NSW of its concerns with the sentence and to request that action to be taken along the lines outlined at [17]. If that request fell on deaf ears (which was unlikely given the attitude of CS NSW) consideration could then have been given to notifying the dispute to the Commission, as stipulated in the Award procedures. As noted above, in the Fisheries Case the unions had raised their legislative reform agenda and safety requests more generally for two and half years in appropriate fora before resorting to industrial action, (although regrettably in that case the union had also not first sought the assistance of the Commission).
13. The ink is barely dry on the Magistrate's decision. The processes available to address the POVB's concerns have only just commenced. Those processes may well result in a positive outcome for the POVB and certainly should have been exhausted before industrial action was contemplated, particularly of the kind engaged in here.
14. As Walton J confirmed in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249 at [51], by reference to Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36 at 330 [4(2)] (Wright J, President, Walton J, Vice-President, and Marks J) and other decisions of the Commission, that the Commission may take into account provisions in awards about dispute resolution processes when determining whether to make a dispute order (and by extension, any relief in respect of a dispute), "because it would be inconsistent with the objects of the Act to "turn a blind eye" or disregard terms or obligations under an industrial instrument made under the Act." I do not consider that the generalised potential increase in risk to correctional officers' safety that may flow from the Magistrate's decision, real as it may be, provides sufficient justification for the POVB to vary the procedures set out in the Agreed Procedures for Settlement of Grievances and Disputes provided for the Award, as envisaged by cl 6.1 of those procedures.
15. Third, the POVB have taken no steps to mitigate the risks arising from their industrial action. In the Fisheries Case the fisheries officers carefully calibrated their industrial action to ensure there was little risk to fisheries and had no impact on safety.
16. As noted above, there is no presumption that in the face of industrial action an order under s 137 of the Act will be made. However, in the circumstances of this case, the public interest dictated that dispute orders should be made.

[1] Oaths Act 1900 (NSW), ss 5, 9, Schedule 4.

[2] Crimes (Appeal and Review) Act 2001 (NSW), s 23(1).

[3] Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at [26] and see discussion in Visscher v Fripp [2024] NSWIRComm 1075; 337 IR 202 at [56] - [61] as to the nature and source of the DPP's independence.

[4] Crimes (Appeal and Review) Act 2001 (NSW), s 56(1)(a).