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

Industrial Relations Commission (NSW)|2024-10-28

DECISION

On 23 September 2024 the Industrial Relations Secretary on behalf of the Department of Primary Industries and Regional Development (Department) filed a Notification of an Industrial Dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (IR Act). The catalyst for the Notification was the commencement of industrial action in the form of work bans by members of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) who are employed within the Department as Fisheries Officers (FOs).
Broadly speaking, FOs are charged with the responsibility of ensuring compliance with the Fisheries Management Act 1994 (NSW) (FM Act), and related subordinate legislation and the Marine Estate Management Act 2014 (NSW) and related subordinate legislation.
The work bans commenced at midnight on 11 September 2024. The bans concern compliance inspections conducted by FOs. Specially, the PSA directed its membership to cease fisheries compliance inspections (except without direct police assistance) as follows: "(a) All Fisheries Officer members working in a coastal area, to cease inspections of estuary trawlers and offshore trawlers outside of daylight hours, and the inspection of ocean hauling and estuary hauling operations outside of daylight hours. (b) All Fisheries Officer members working in an inland area, to cease the inspection of all inland commercial fishing operations outside of daylight hours."
On 28 October 2024, following the hearing and in circumstances I discuss at [56] below, the PSA issued a clarification to its membership to the effect that inspections of trawlers at port are not subject to the bans and may continue to be performed.

The Evidence

The Department read two statements of Dr Andrew Moriarty, Director Fisheries Compliance, Fisheries & Forestry. [1] The first statement was 37 pages long with 31 annexures comprising 358 pages. No objection was taken to any part of the two statements, however Dr Moriarty was cross examined. Dr Moriarty gave evidence regarding: 1. the nature of the commercial fishing industry in NSW, and importantly the nature of the fishing activities referred to in the PSA's direction regarding the work bans; 2. the legislative and policy framework concerning commercial fishing and the powers of FOs; 3. the extent to which the PSA's Proposed Controls have been adopted in other States, the Territories and the Commonwealth; 4. the impact of the work bans; 5. the frequency of aggressive behaviour by stakeholders towards FOs; 6. the measures the Department has implemented to mitigate the risk to FOs arising from aggressive interactions with stakeholders; 7. the outcome of an independent safety review conducted in 2021 and steps that have been taken to implement the recommendations of that review; 8. the nature of the PSA's Proposed Controls and his opinion as to their effectiveness in mitigating the risk arising from aggressive interactions with stakeholders.
The Department also read a statement of Ange Royal, Manager, Industrial Relations. [2] The statement was 9 pages long with 18 annexures comprising 109 pages. No objection was taken to any part of the statement, and Ms Royal was not required for cross examination. Ms Royal gave evidence regarding: 1. a work ban that was implemented and ultimately lifted by the PSA in January 2023 following a recommendation being made by the Commission (the terms of which were not in evidence), during which the PSA had also called for FOs to be given OC Spray and for commercial fishing licence holders to satisfy a fit and proper test, as well as other measures directed toward improving the safety of FOs; 2. the establishment in April 2023 of a Fisheries Joint Consultative Committee (JCC), comprising members of the PSA and the Department, and the adoption by the parties of terms of reference and a framework for consultation between the parties on strategic industrial relations issues within the Fisheries Compliance Unit (FCU); 3. matters covered by the JCC since its establishment; and 4. the events leading to the notification of the present dispute.
The PSA read a statement of David Potter, District Fisheries Officer, [3] who exclusively works as an inland-area based FO in the South West Zone which takes in the districts of Hume, Riverina, Far West and Snowy Mountains. The statement was 8 pages long, with no annexures. No objection was taken to any part of the statement, however Mr Potter was cross examined. Mr Potter gave evidence regarding: 1. the nature of commercial fishing in inland areas; 2. the duties of FOs in inland areas; 3. the nature and frequency of inspections of commercial fishers in inland areas; 4. the risks to safety to FOs in inland areas; and 5. his opinion as to how the PSA Proposed Controls would mitigate the risk to FOs' safety.
The PSA also read a statement of Joseph Wright, Supervising Fisheries Officer, based in the Far North Coast Zone. [4] The statement was 27 pages long, with no annexures. No objection was taken to any part of the statement, however Mr wright was cross examined. Mr Wright gave evidence regarding: 1. the work of FOs; 2. the operations of the FCU generally; 3. the nature of inspections conducted of commercial fishing activities; 4. the operations and regulation of the commercial fishing industry; 5. the extent to which the PSA Proposed Controls have been adopted in other States and Territories; 6. the impact of the work bans and the reasons why they were imposed; 7. the safety hazards presented by the work the subject of the work bans and why the current measures for ameliorating the risks are not adequate; and 8. his opinion as to how the PSA Proposed Controls would mitigate the risk to FOs' safety.
As will be evident from the details of the evidence set out above, the evidence was extensive. A great deal of information was set out in the evidence concerning the work of FOs. That information was extremely useful in my understanding of the dispute and the matters that have given rise to it. It is not necessary however, for me to set out all of that information in order to adequately explain why I have decided not to make dispute orders and accordingly I have not done so.

Applicable Principles and the Parties' Submissions

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.
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 130 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 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.
Section 146 of the Act requires the Commission to take into account the public interest in the exercise of its functions. Specifically, s 146(2) provides: (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to-- (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy, and (c) for the exercise of a function about public sector employees--the fiscal position and outlook of the Government and the likely effect of the exercise of the Commission's function on the position and outlook.
While the effect of on the economy, and in this case, which involves public sector employees, the fiscal position and outlook of the Government, are mandatory considerations, the Commission is not limited to only considering economic or fiscal impacts when considering whether to make dispute orders. Broader implications for the public should be considered. 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].
The Department submitted that there are strong public interest considerations supporting the making of dispute orders including: "(a) serious risk of depletion of key fish stocks (with consequent ecological, environmental, economic, and cultural effects); (b) the fact that Fisheries Officers, and the PSA, unilaterally decided to impose work bans on existing, long-standing work practices even although there were internal escalation mechanisms not used and the assistance of the Commission could have been sought - but was not; (c) the public interest in ensuring that Governmental functions are not disrupted by damaging industrial action which is not in accordance with the Award; (d) the fact that a comprehensive suite of safety measures are already in place which have been effective in minimising, as far as practicable, the occurrence of dangerous interactions with commercial fishers during night inspections (and de-escalating such incidents where they have occurred); and (e) the fact the PSA and the Fisheries Officers are refusing to lift the Bans until the Department makes changes which are not within its control, some of which have been debated for 20 years (and in circumstances where, even although industrial action is occurring, the exact extent of the changes sought remains unclear in various respects)."
The PSA disputes the first four of these of contentions and says that they are not supported by the evidence. As for the final contention, it says the fact that the implementation of the PSA Proposed Controls is largely out of the control of the Department, as they require legislative changes, is precisely the reason why the membership has resorted to industrial action. As the PSA submitted in its written Outline of Submissions (PSAS) at [7]: "The bans are, in a sense, symbolic: their intent is to draw public attention to the underlying safety issues and the legislative reform the PSA contends are appropriate."
The PSA also made clear in evidence and in submissions, that it will lift the bans when the work the subject of the bans is made safe - by whatever means that may be achieved.
While the PSA submitted that the safety of workers was in the public interest, and that the objective of the work bans, namely the implementation of the PSA Proposed Controls was therefore also in the public interest, as I apprehend the PSA's submissions it did not contend that the Commission should include those matters, in favour of the PSA's position, when assessing whether it is in the public interest to make the Dispute Orders sought. Were the Commission to do so it would need to make an assessment as to whether, and perhaps to what extent, the PSA's Proposed Controls would ameliorate the safety risk to which the PSA asserts the FOs are exposed. Rather, the PSA simply says the Department has not established that it is in the public interest for the dispute orders sought to be made. This being the case, it is unnecessary in this decision to set out or otherwise address the extensive arguments each side made in evidence, as to the effectiveness of the PSA's Proposed Controls in reducing or eliminating risk to the health and safety of FOs and I have not done so.
Although the PSA eschewed the need for the Commission to assess the work, health and safety risks actually posed to FOs and the effectiveness of the PSA's Proposed Controls to eliminate or reduce those risks, it did direct the Commission's attention to the documented risks posed to FOs, and the documented measures to be taken to address those risks, in two contexts.
First, it raised the question as to whether the work bans in fact constitute "industrial action" within the meaning of the IR Act in circumstances where s 84 of the Work Health and Safety Act 2011 (NSW) (WHS Act) provides that a worker may cease, or refuse to carry out work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an intermediate or imminent exposure to a hazard.
It is convenient at this point to set out the salient aspects of the PSA's direction to its members, published on 10 September 2024: "PSA direction to implement bans: All Fisheries Officers directed not to undertake unsafe work September 10, 2024 Bulletins - DPI Fisheries All Fisheries Officer members across NSW will be taking industrial action from Midnight Wednesday 11 September 2024. All members who are Fisheries Officers are directed by the General Secretary to implement the bans. The Fisheries Officers Vocational Branch (FOVB) of the PSA voted overwhelmingly in support of taking immediate actions in their workplaces to protect themselves and their colleagues in the course of their work. As of 11 September 2024, the membership are directed to cease fisheries compliance inspections (except without direct police assistance) of the high-risk work functions as specified below; (a) All Fisheries Officer members working in a coastal area, to cease inspections of estuary trawlers and offshore trawlers outside of daylight hours, and the inspection of ocean hauling and estuary hauling operations outside of daylight hours. (b) All Fisheries Officer members working in an inland area, to cease the inspection of all inland commercial fishing operations outside of daylight hours. This action has been brought on by members' extreme frustration at the Government and the Senior Management of their Department that have continued to refuse to provide appropriate protective and self-defence capabilities."
Ultimately the PSA did not press an argument that the workers were not engaging in industrial action. This was appropriate in light of the clear identification in the direction that the bans were implemented as "industrial action"; and in light of the fact that there was no evidence that the workers had given notice to the Department that it had ceased work under Division 6 of the Part 5 of the WHS Act, as required by s 86 of the WHS Act. However, it was also noted in the PSAS (at [5]) that if Dispute Orders were made, the workers may have a right to cease the work covered by the work bans, pursuant to s 84. Whether that is correct is not a matter I need to decide, although as will become apparent from the discussion below, there may be some force in that argument.
Secondly, in demonstrating that the Department had not established the first, second and third limbs of its public interest argument, the PSA pointed to the content of a Safe Work Method Statement (SWMS) and a risk assessmens and in particular a review conducted in 2021/2022 in relation to the FCU's WHS policies, risk assessments, safety procedures, training programs and activities. I explain this further below.

The Work Affected by the Bans

Before explaining why I am not satisfied that the Department has made out its case for dispute orders to be made, it is important I explain the nature of the work affected by the work bans.
The bans concern "compliance inspections" of estuary trawlers, offshore trawlers, ocean hauling, estuary hauling and "all inland commercial fishing operations" outside of daylight hours (and without police assistance).
Dr Moriarty gave essentially undisputed evidence regarding each of these types of commercial fishing.
Dr Moriarty explained estuary or estuarine trawling as follows: " Estuarine trawling is conducted in estuarine waters. The lower limits of estuaries are generally considered to be where they converge with the ocean. The upper limit of an estuary is where there is no tidal influence, i.e. where it becomes fresh water. Estuarine waters include both brackish water (a mix of fresh and salt water) and salt water (such as at or slightly outside the mouth of the estuarine system before the end of the break wall). The Hunter River, Hawkesbury River, and Clarence River estuarial systems are the three areas in which commercial estuarial trawling occurs. The most common estuarial trawling catch in NSW is prawns. Estuarial prawn trawling is commonly conducted using small fishing vessels. Such operations commonly commence at night, and may continue into the early daylight hours. Estuarial prawn trawling is generally conducted using otter trawl nets fitted with required Bycatch Reduction Devices. Commercial estuarial trawling operators may also be separately endorsed to catch other fish species using different fishing methods in these estuaries (such as mud crabs using pots/traps)." [5]
Dr Moriarty explained estuary or estuarine hauling as follows: "Estuarine hauling is also conducted in estuarine waters and is a small part of what is known as the 'Estuary General Fishery' which involves many other types of commercial fishing within estuaries. The term 'estuarine hauling' is typically used to refer to fishing for different types of fish including flat head, whiting and bream. They do target prawns at certain times of the year and crabs. Estuarine hauling is typically conducted from estuary vessels which are larger punts. Estuarine hauling is also conducted at different times of day, depending on the nature of the operation with some operators working primarily during the day, while other types of operations occur wholly or partly at night." [6]
Mr Wright expanded on the nature of estuarine general fishing activities in his evidence, explaining that estuarine fishing, includes: "a. Mesh netting or gill netting of estuaries; b. Fish and crab trapping; c. Hand lining; d. Prawn trapping (which is distinct from estuary prawn trawling)." [7]
According to Mr Wright none of the above listed activities constitute estuary trawling or estuary hauling.
In cross examination Mr Wright stated that estuary trawling at night is only permitted in the Hawkesbury River. [8] This was not contradicted by the Department.
I conclude from the above evidence that both estuary trawling and estuary hauling is usually conducted on fishing vessels. Estuary hauling may take place at night, and continue until morning, but estuary trawling at night may only take place on the Hawkesbury River.
Dr Moriarty explained ocean trawling, noting there is a difference between ocean fish trawling and ocean prawn trawling, as follows: "Ocean fish trawling is conducted in ocean waters. The NSW Fisheries regime covers ocean fish trawling operations conducted: (i) up to 80 nautical miles offshore north of Barrenjoey (and up to the Queensland border); but (ii) only 3 nautical miles offshore south of Barrenjoey (and down to the Victorian border). Fishing in waters outside the 3 nautical mile limits south of Barrenjoey is regulated by the Commonwealth Government fisheries regime. North of Barrenjoey, common primary ocean trawl fish catch types include school whiting (stout whiting and eastern red spot whiting) and tiger flathead. South of Barrenjoey, primary ocean trawl fish catch types include whiting and some silver trevally (with flathead generally restricted). Other catch includes snapper, leatherjackets, bonito, kingfish, morwong, bass groper, blue-eye trevalla, pink ling, bigeye ocean perch and gemfish. Ocean fish trawling is conducted exclusively from vessels. Ocean prawn trawling is also conducted in ocean waters covered by the NSW Fisheries regime. Ocean trawling is sometimes divided into 'inshore' trawling and 'offshore' trawling. 'Inshore' trawling occurs at sea, but relatively close to the coast. 'Offshore' trawling occurs further out to sea. Operations targeting school prawns commonly occur in inshore waters relatively close to the coast, while operations targeting red spot prawns will often occur further offshore. Ocean prawn trawling uses otter nets and similar gear to ocean fish trawling, and some commercial fishing operators endorsed for ocean fish trawling are also endorsed for ocean prawn trawling." [9]
In re-examination Mr Wright confirmed that ocean trawling could occur day or night, but when it occurs at night, the vessel will usually return to port shortly after sunrise. He explained: "so we [FOs] get a lot of benefit out of conducting the inspections upon them returning to port because it's a more controlled environment." [10]
Dr Moriarty explained ocean hauling as follows: "Ocean hauling (or 'beach hauling') is mostly conducted as a shore-based operation. It involves a net being run out from shore (usually from a beach) typically using a row boat, jet ski or small power boat to encircle a school of fish. The net is then run back to shore and pulled in, using a car or other vehicle or by hand. Ocean hauling operations do not otherwise involve the use of a fishing vessel. Ocean hauling operations may target up to 20 finfish species (with the most common catch types being pilchards, sea mullet, Australian salmon, blue mackerel, and yellowtail scad). Ocean hauling operations commonly involve an encampment located at, or near, the beach from which the hauling it to occur. The encampment may be in place for a period of days, or even months. This is because those involved in the operation will commonly have to wait for fish schools to approach the fishing place." [11]
From the above evidence it is clear that all ocean trawling is conducted from vessels, but other than when using a small vessel to run a net out from shore, ocean hauling is not conducted from a vessel. As I have already observed Mr Wright confirmed that ocean trawling can occur day or night. In cross examination Dr Moriarty accepted that ocean hauling is "a daytime activity" although processing the catch could take until twilight or early evening. [12]
In relation to inland commercial fishing, Mr Moriarty gave the following evidence: "Inland commercial fishing is conducted in fresh waters (such as rivers, lakes, and dams). Common inland commercial catch types include yabby and European carp. Various different fishing methods are employed by inland commercial fishers but typically carp is fished using meshing nets and traps and yabby fishing occurs from small vessels in impoundments (dams) using yabby traps. On occasion, inland fishing is shore-based." [13]
According to Dr Moriarty the sectors that are the subject of the work bans make up 70% of the commercial fishing industry in NSW. [14]
Mr Potter explained, and none of his evidence in this respect was contradicted, that there are currently only 28 businesses who participate in the commercial fishing industry in the inland area and the businesses are only licensed to fish carp and yabbies. [15] Carp is an introduced and pest species and most of the product caught is sold onto other businesses as pet food and fertiliser. When fishing for carp the fishing business or licence holder conducts these activities under "a section 37 permit under the FM Act." [16] According to Mr Potter a section 37 permit holder fishing for carp is restricted to daylight fishing activities only. The main focus of compliance activity in respect of commercial carp fishing is to ensure that native fish stocks are not taken or harmed.
According to Mr Potter when fishing for yabbies a commercial licence holder may use up to one unlicensed crew and up to 100 opera house yabby traps or hoops or lift nets or a combination of the two. Commercial fishers targeting yabbies are not restricted to daylight hours. [17]
From the above evidence I understand that most inland commercial fishing occurs on a vessel and that only yabby fishing may occur at night.
In summary, the only commercial fishing activities that may or are likely to occur at night are: 1. estuary trawling in the Hawkesbury River; 2. ocean trawling; 3. estuary hauling; and 4. inland yabby fishing.
The evidence also indicates that each of these four activities takes place most commonly, and in the case of trawling, exclusively, from vessels.
Mr Wright explained that the operational duties of FOs include: "a. Performing land based and water based patrols of fishers and marine park users. b. Inspections of commercial fishing activities, recreational fishing activities, aquaculture facilities, fish processing facilities, distribution facilities, habitats and aquarium supply outlets. c. Covert surveillance of ports and launching locations as well as fishing grounds and locations at which illegal fishing activity is believed to be taking place. d. Monitoring and covert surveillance of marine parks. e. Monitoring of spatial, temporary, permanent and seasonal fishing closures." [18]
As already observed, the bans only concern one aspect of the second of the enumerated duties - inspections of commercial fishing activities.
Both Mr Wright and Mr Potter gave uncontradicted evidence as to what was involved when conducting an inspection. In short, and as one would expect, they involve the FO having personal contact with the fisher. Mr Wright explained that inspections are typically performed on the water or at boat launching or retrieval sites. [19] Mr Potter gave evidence that an inspection of a commercial fishermen on the Inland Restricted Fishery will involve: "a. ensuring fishing gear dimensions are compliant with the regulatory specifications; b. ensuring the number of nets, traps and techniques are compliant with regulatory specificities; c. ensuring bait being used is not unlawful (for example, that no redfin is being used as bait); d. ensuring gear is marked in accordance with regulations; e. ensuring all permit conditions with a Section 37 permit are adhered to; f. ensuring gear such as yabby traps are checked within a 48-hour time frame to deter participants from having multiple sets of gear across multiple locations (reduction or limitation of effort to ensure sustainability); g. ensuring that catch record data for both species (carp and yabbies) is up to date via catch return audits; and h. monitoring fish markets in larger cities including interstate and cross- referencing catch record data, ensuring it aligns with sale data obtained to deter black marketing." [20]
Mr Potter added to this list when giving his evidence in chief to include: "…monitoring the location of fishing gear and how it is used or set, ensuring that yabbies are not carrying over and the requirement to produce their endorsement cards."
The evidence of Dr Moriarty and Mr Wright established that if an inspection occurs on a vessel, a minimum of two FOs are required as it involves using a boat (referred to as a 'FPV') to come alongside the vessel to be inspected and at least one FO boarding the vessel while one FO continues to master the FPV. According to Mr Wright it is common that there are only two FOs to conduct such an inspection and he has never been involved in a vessel inspection which has had more than two boarding officers. [21]
Mr Potter gave evidence that inspections in respect of all types of fishing activity, not just in respect of commercial fishers, is "the principal way of ensuring compliance [with the FM Act]." [22] However Mr Wright explained that there are various methods of monitoring for non-compliance including: "a. Conducting audits of catch and effort returns. Every commercial fisher is required to submit a catch and effort return detailing their commercial fishing activities. These reports indicate the dates on which a catch is caught, the species in the catch and the quantity of the catch. These reports form part of the intelligence available to the FCU which may assist in indicating IUU [illegal, unreported, unregulated] activities. b. Conducting audits of records of sale and disposal of fish. These records identify the species and quantities being sold by the fisher to relevant buyers. These records assist in monitoring for quota evasion and unlawful sale of prohibited fish (e.g. size, species, etc). c. Conducting inspections of receivers (e.g. commercial fisher cooperatives and fish markets and other wholesalers). These inspections provide an indication of the catch that a fisher has actually caught and submitted to market. Any inconsistencies with the catch and effort returns or sales records may identify IUU fishing activity or other FM Act contraventions. d. Covert surveillance of fishing grounds and other waterway locations at which IUU is believed to be taking place or where illegal fishing gear is being or has been set. e. Monitoring the various use of and access to NSW Marine Parks to monitor for compliance with the MEM Act. f. Patrols of waterways, coastal areas, offshore trawl locations and marine parks." [23]
According to Mr Wright "auditing style work is possibly one of the most common ways of detecting non-compliance in the trawl fishery … and another major one … is the inspection of vessels upon return to port after they've conducted their fishing activities, so they have all their catch on board, you can … monitor for the retention of species that, perhaps, shouldn't have taken, you can check their quota reporting, you can check licensing, you can assess their gear." [24] Indeed, as already observed at [38] above, Mr Wright was of the view that port based inspections, which often occur at daybreak when nighttime trawl fishers returned to port, were better than on-water vessel inspections for a number of reasons: "It's often a lot easier … there are a lot of components of trawl gear, and when you're out on the ocean trying to take measurements and things like that of mesh sizes and lengths of lines, it's quite challenging. In port you've got that added ‑ it's quite off better for the ‑ for the commercial fisher as well because they can be focused on what you're asking them to do and what you're ‑ what you're trying to check as opposed to having to run a ship at the same time which often heightens the level of stress for them, I, no doubt, imagine." [25]
In questions I posed to Mr Wright, he confirmed that the bans are not affecting nighttime patrolling, surveillance or monitoring of commercial fishers and their activities, during which some evidence of non-compliance might be obtained, although he accepted in further cross examination that it was possible that without conducting an inspection it may not be possible to gather enough evidence to successfully prosecute a possible offender. [26]
Mr Wright also confirmed following further questions in re-examination, that inspections of vessels, for example a trawler, could occur at night after it returns to port. Following this evidence counsel for the PSA advised the Commission that the PSA would issue a clarifying notice to ensure that there was no ambiguity as to the ability of members to conduct inspections of trawlers at port. I understand this has now occurred.
One area of factual dispute in this matter concerns the frequency of nighttime inspections.
According to Mr Potter inspections of commercial inland fishers is a rare occurrence with no nighttime inspections having occurred since 1 July 2019. His evidence is borne out by a spreadsheet annexed to Dr Moriarty's statement (AM-30) which purported to show the number of commercial inspections of the fisheries affected by the bans since 1 July 2019. AM-30 showed that a total of 24 inspections had been conducted on Inland Commercial Fisheries since 2019 with none having been conducted at night.
Mr Potter explained that: "The work ban has been imposed in respect of night-time commercial fishing inspections inland merely out of collective solidarity with the FOs in the coastal area. Whether the ban was lifted in respect of the inland area or not, night-time inspections do not occur. Put another way, the work ban has no impact on the inland fishing industry." [27]
Nevertheless, Mr Potter went on to give evidence as to why he considered it would nevertheless be unsafe for inland FOs to perform inspections at night on the water.
According to Mr Wright it has been some years since any inspections concerning the commercial fishing activities affected by the ban have occurred. Again, this is borne out by AM-30 which shows that since 2019 a total of 17 nighttime inspections had occurred in inspect of ocean trawling and ocean hauling. A total of 2 nighttime inspections of ocean hauling had occurred in that time, both being in 2019-2020.
AM-30 was a little unclear in respect of the statistics for nighttime inspections of estuary trawling and hauling. AM-30 indicated that there had been one nighttime inspection of estuary prawn trawling in 2019-2020, with none having been conducted since that time. AM-30 also indicated however, that a total of 207 nighttime inspections of "Estuary General" had been conducted since 2019. As noted at [32] above, Dr Moriarty evidence was that "Estuarine hauling is also conducted in estuarine waters and is a small part of what is known as the 'Estuary General Fishery'. Mr Wright gave evidence that he was personally aware, and from discussions with other delegates, that inspections of estuary hauling activities at night had been "very, very few in number" [28] and he was not aware of estuary hauling being inspected at night for several years. Mr Wright considered that the 207 nighttime inspections referred to AM-30 concerned estuary general activities that are not subject to the work bans, including: "a. Mesh netting or gill netting of estuaries; b. Fish and crab trapping; c. Hand lining; d. Prawn trapping (which is distinct to estuary prawn trawling)." [29]
What is clear is that no nighttime inspections of any of the activities affected by the ban were conducted in 2023 - 2024 and so far, no nighttime inspections have taken place in 2024 - 2025.
Despite Dr Moriarty giving evidence in chief that "commercial inspections at nighttime are relatively infrequent" [30] he attempted in his reply evidence to demonstrate that a reasonable amount of non-compliance occurs at night. Mr Moriarty annexed to his reply statement a table (AM-33) which he had had another staff member prepare which purported to show "the sanctions of commercial fishers in the previous 10 years in respect of the fisheries affected by the Work Bans and whether the offence occurred during the day or at night." [31] No explanation was given as to the source of the data or how it was complied. The table suggested that a total of 269 'sanctions' had been issued in respect of nighttime offences out of total number of sanctions issued during that period of 944. 152 of the 269 nighttime offences resulted in a written caution, from which I infer the offences were not serious. Notably Dr Moriarty also stated that "the offences recorded in AM-33 may not have arisen due to inspections or the inspections may not have occurred at night." [32] He explained in oral evidence that this may occur because "you detect an offence at night and you pick them up in the co‑op next day as part of a PHP inspection." [33] I note this accords with Mr Wright's evidence that effective inspections are often conducted at port, at daybreak.
In a further attempt to demonstrate the number of offences that occur at night, Dr Moriarty annexed a further table to his reply statement (AM-34) "prepared by the Department which shows the prosecutions of commercial fishers in the previous 10 years in respect of the fisheries affected by the Work Bans and whether the offence occurred during the day or night." Again, no explanation was given as to the source of the data or how it was complied. AM-34 purported to show that some 18 offences out of a total of 192 offences had occurred at night, with a further 62 nighttime 'offences' resulting in no conviction.
I do not consider AM-34 to be an accurate record of the number of the offences that occurred at night over the past ten years. First, as Dr Moriarty explained in his evidence: "A prosecution may relate to more than one offence and so, for the purpose of creating the table in AM-34, I am informed that the time of the first offence was used to classify the offence as day or night in column 4." [34]
Secondly, AM-33 indicated that there had been a total of 152 prosecutions brought in 10 years, for 'offences' occurring in the day and the night, yet AM-34 indicates there was a total of 32 prosecutions brought in respect of total of 192 offences. Further, AM-33 stated that there had been 66 prosecutions brought in respect of nighttime offences, yet AM-34 indicated that a total of 8 prosecutions had been brought for 80 offences, including the 62 which resulted in no conviction.
In short, I do not consider AM-33 or AM-34 to be accurate records of nighttime offending. At best they demonstrate that nighttime offending has been detected less frequently than daytime offending. Further, as has already been noted, a nighttime offence did not necessarily mean that a nighttime inspection had occurred - the offence may have been detected through other means, including through a daytime inspection.
Given the above evidence, it is difficult to understand the foundation for Dr Moriarty's statement that: "Nighttime shifts are critical to the Department's responsibility to promote compliance with the Fisheries Management Act 1994 (NSW) and the Marine Estate Management Act 2013 (NSW). This is because a substantial proportion, even perhaps the majority, of total non-compliance occurs at night." [35]
It is also difficult to understand the foundation for Dr Moriarty's statement that: "Approximately 40% of all inspections conducted by FOs (both general and targeted) are performed at night." [36]
If I assume this statement is correct, noting that no data or report was tendered in evidence to support it, and if I assume that AM-30 is accurate, over 93%, and perhaps 100% in the last year or so, of those inspections must be of fishers who are not undertaking commercial fishing affected by the work bans.
Lastly, Dr Moriarty gave evidence of how the work bans, which commenced on 11 September 2024, had caused one particular operation in October to be postponed. A fishing trawler had been detected encroaching into a marine protected area in the Batemans Marine Park. According to Dr Moriarty: "Because of the Work Bans, however, this operation has been postponed and the suspected non compliance is likely to be continuing as a result." [37]
In response to this evidence Mr Wright gave the following evidence: "The work bans do not prevent officers performing patrols, at day or at night. Additionally, the work bans do not prevent officers from performing inspections during the day or inspections at night with police presence. Accordingly, if the Department is aware of a vessel encroaching into a marine protected area in Batemans Marine Park, then it is open to it to instruct officers to conduct a patrol to deter the vessel or to inspect the vessel with police presence (at night) or without police presence during the day. This example is also illustrative of the benefits of the VMS system which would allow for the remote tracking of the vessel to determine whether it, in fact, entered the marine protected area and would allow for officers to track and then inspect the vessel during the day." [38]
In reply, Dr Moritary, who now stated the vessel was "in the Jervis Bay Marine Park" [39] gave the following evidence: "a. I do not agree that "conduct[ing] a patrol [would] deter the vessel" in circumstances that the crew may know, because of the work ban, no inspection is possible. Further, even if it did, the patrol could not practically be conducted every night to deter the vessel. b. It was not practically open for me to organise police presence for this inspection, because they are not available at short notice. c. The illegal activity was occurring at night, such that I assess there was no utility performing an inspection during the day."
In cross examination Dr Moriarty admitted that: 1. no attempts were made to get police assistance; [40] 2. they did not have a definite position of where the trawler was and would not have sought police assistance until that was known [41] - despite saying in his reply statement that the Department "had sufficient intelligence to carry out the inspection" [42] ; 3. the inspection didn't go ahead "because we couldn't operate at night;" [43] and 4. he has since become aware that the vessel had moved south, i.e. away from the protected marine park [44] (hence I infer that is no longer correct to say, if it ever was: "the suspected non compliance is likely to be continuing").
I do not accept that the Department was significantly impeded in its compliance work in respect of the alleged trawler encroaching on the Batemans (or Jervis Bay as the case may be) Marine Park. The bans would not have prevented FOs patrolling and observing the trawler and confirming its location. That effort alone may have deterred any illegal fishing. Attempts could have been made to put police on notice of a possible request for assistance and to have made such a request if it was confirmed that the vessel was in the restricted area and appeared to be fishing. If police were not able to attend (and I accept that obtaining police assistance at short notice or at all, can be difficult) it may have been possible to continue to monitor the vessel until daybreak, at which time an inspection could have occurred, either on water or at port. If the vessel had have returned to port at night, an inspection could also have been undertaken. None of those steps were taken. It seems no FOs were dispatched to locate and monitor the vessel because an erroneous view was taken that they "couldn't operate at night."

The Fisheries Joint Consultative Committee and Work Health and Safety Concerns

The final aspects of the factual circumstances of this dispute that I need to discuss, as they bear on four of the reasons why the Department says dispute orders should be made, concerns the Department's current safety framework; work the Department has done - or not done - to ensure the safety of FOs; the establishment of a Fisheries Joint Consultative Committee (JCC) in April 2023; the matters dealt with by the JCC since that time and the safety concerns raised by the PSA and the timing of those concerns.
In terms of the chronology of events, the starting point is a review conducted by Ian Henderson of the CERT Group in 2021 and early 2022, into the "appropriateness and effectiveness of FCU policies, risk assessments, safety procedures, training programs and activities that support its approach to ensuring the safety of its officers working in the field, with a particular focus on dealing with violent and aggressive stakeholders and abalone work on the NSW South Coast (CERT Review)." [45]
The CERT Review involved a desktop evaluation of all relevant safety procedures, one-on-one interviews with FOs, a police officer and a comparison of NSW fisheries compliance with fisheries compliance organisations in other Australian states.
The CERT Review report dated April 2022 made 12 recommendations relating to safety and operational improvements. According to Dr Moriarty all the recommendations were supported or supported in principle by the FCU. Dr Moriarty annexed to his statement (AM-25) a copy of the FCU's "Fisheries Compliance Action Plan" in response to the CERT Review as updated in September 2024.
AM-25 reveals that at least eight of the recommendations have not yet been fully implemented, some 2 ½ years after the CERT Review was completed. As I apprehend it, it is this delay, combined with a lack of movement in respect of other safety issues, that has agitated the Fisheries Officers Vocation Branch of the PSA (FOVB). While it is the case that the FOVB consider that the PSA's Proposed Controls would be effective measures to ensure the safety of its officers working in the field, it is apparent that the FOVB's underlying concern is that the safety of FOs is not being addressed adequately, both in terms of delays in addressing them, and in terms of the implementation of suitable measures to mitigate the risks. As Mr Wright explained in his statement: "Ultimately, it is my view and the opinion of the FOVBE that if the Relevant Inspections are safe to perform, the work will be resumed irrespective of how the notifier renders the work safe. That is, it is not necessary for the respondent's proposals to be implemented in order for the FOVBE to support the resumption of the Relevant Inspections." [46]
A number of the recommendations made in the CERT Review were focused on by the PSA at the hearing.
The first was the second recommendation which was as follows: "The current SWMS for Dealing with Dangerous Clients - Safely Measuring Catch would be improved by being broken into the following separate SWMS: ‐ Conducting inspections ‐ Operations in remote campsites ‐ Measuring fish (the risks associated with fish are standard to all fish inspections, and not related to the risk of assault from a client, or to dealing with dangerous clients) ‐ Operations in identified high risk areas (e.g.: power stations) ‐ Reporting of incidents and dangerous clients/ high risk offenders (these instructions would appear to be more appropriate in the General Work Instructions - the procedure of reporting incidents isn't a risk)."
Despite the above criticisms of this particular SWMS, it still remains, some two and half years later, the Department's current operative SWMS for dealing with dangerous clients. It was put into evidence by Dr Moriarty (AM-17) as part of the Department's safety framework to demonstrate that the "Department takes the risks of aggressive stakeholder incidents very seriously"; that "the Department is genuinely concerned for Fisheries Officers' safety and wellbeing" and that the "the Department has in place a comprehensive set of measures" to mitigate the risk of aggressive interactions with clients. [47]
In cross examination of Dr Moriarty, counsel for the PSA, Mr Saunders, successfully established numerous other defects with AM-17, including that it is was difficult to understand how various activities which had death identified as a consequence could be rated using the applicable risk matrix as having a consequence of only "serious injury- long term illness." During questioning about this Dr Moriarty, who has been the chair of the Fisheries and Forestry WHS Committee for 10 years [48] , demonstrated a concerning lack of understanding as to how a risk to safety is assessed, insisting that he would need to see the data on how often a particular risk materialised in order to assess the consequence, (as opposed to the likelihood), of a particular hazard: "If I was going to go through a risk assessment on this, I would want to see the data to tell me how many times has this happened, how many times has somebody died undertaking this activity, if we're going to rate it as "death"." [49]
One of the more significant issues Mr Saunders identified with AM-17 was that it indicated that one of the control measures (indeed the first identified control measure) when interacting with a 'client', and also when measuring fish, where the hazard was identified as "Death by physical trauma severe lacerations crush/impact injuries Sprains, strains, cuts and abrasions", was to maintain the "triangle of safety" which involved two FOs standing as if at the two ends of the base of triangle, with the 'client' at the apex. Dr Moriarty accepted that this cannot be achieved if the FO is working "one-out". [50] As I have detailed above, FOs conducting inspections of vessels 'on water', most often board the vessel 'one-out', meaning it is impossible to use the 'triangle of safety'. As I have also noted above, most of the inspections the subject of the Work Bans involve boarding vessels.
AM-25 indicated that a review and changes to the AM-17 were to have been completed by the end of June 2022. AM-25 recorded and Dr Moriarty further explained in cross examination, that a Risk Assessment workshop was held at Port Macquarie in 2022 and a "detailed risk assessment was developed and implemented across FCU soon after the workshop." In fact, what was implemented, in April 2023, was a "Risk Assessment" (AM-27) which specifically dealt with: 1. "Inspections of aggressive Commercial fishers and crew involved in hauling operations"; 2. "Conflict between Ocean Hauling crews regarding rights of priority and the expectation that FOs will adjudicate/manage the conflict"; 3. 'Inspections of aggressive Commercial fishers and crew involved in hand gathering"; and 4. "Inspections of aggressive fish receivers, commercial fishers and crew during post-harvest inspections."
It was established during cross examination of Dr Moriarty that no risk assessment has been done for trawl operations, with no immediate plans to do one [51] ; that AM-17 is still the current operational document; [52] and the recommendation that AM-17 be broken into separate SWMS has not happened, although "things are moving". [53]
The PSA submitted that the risk assessment comprising AM-27, reflected the position its members were adopting with respect to the Work Bans. The first 'Operational and Dynamic Control' identified with respect to the risk posed by inspection of hauling and hand gathering operations, was: "If Fisheries Officers can not identify the commercial fishers or any of the crew members, they should assume that the inspection is high risk and FOs should not inspect unless other Operational & Dynamic controls have been met."
The evidence supported the PSA's submissions that only very rarely will a FO be able to identify a commercial fisher before making personal contact with them and it would be very rare indeed that they would be able identify the crew members as they are not required to hold a licence or be identified in any FCU record (hence one of the PSA Proposed Controls is the need for crew to be identified). That being the case, the FO has to implement other control measure before conducting an inspection. In respect of nighttime inspections of commercial fishers engaged in hauling or hand gathering the risk assessment prescribed the following as the next control measure: "Night-time inspections - collect evidence remotely (UAV [drone] thermal) where possible, do not inspect unless NSW Police present."
Thus, the PSA submitted that its Work Bans merely reflect safe practice according to the risk assessment. In cross examination Dr Moriarty was unable to provide any persuasive reason why the hazard posed by nighttime inspections of unidentified commercial fishers and crew undertaking hauling or hand fishing would be different for ocean or estuary trawling or why the operational and dynamic controls to mitigate the hazard, would be substantively different.
The second recommendation of the CERT Review focused upon by the PSA was, recommendation 3: "Review all SWMS which are broad in their scope and break these down into more discreet job tasks. SWMS content should focus on safety controls to manage hazards with each procedural step of a discreet job task. Some of the guidance in some SWMS is better suited to inclusion in the relevant section of the General Work."
In respect of this recommendation, made as I have observed previously, two and half years ago, Dr Moriarty advised, in cross examination, that a review of the risk register commenced in the middle of this year [54] and that the health and safety team were "actually rewriting the risk register from scratch." [55] The expected completion date is June 2025. [56] When asked why it took so long Dr Moriarty gave the rather unsatisfactory response: "Well, we wanted to make sure that we had some opportunity to review the risk register and in line with all the other fisheries' business unit's risk registers." [57]
The next recommendation of the CERT Review focused on by the PSA was the seventh recommendation: "The Act should be amended to (1) include a requirement for a person required to provide their name and address to produce verification of personal details where the officer believes on reasonable grounds the details are false, and (2) create an offence to supply false or misleading details or information."
The seventh recommendation was one of four recommendations requiring legislative amendments. Each of the recommendations are supported in principle by the Department and AM-25 recorded in respect of three of them, that the Department had sought support from the Minister for the legislative changes to be made. There was also evidence that the Department had sought support from the Minister for legislative changes to be made to require licence holders to meet a 'fit and proper person test', this being one of the PSA's Proposed Controls. There was no clear evidence however, as to when that support had been sought, and no evidence as to what the timeframe might be before a decision will be taken by the Minister as to whether the proposed legislative changes might be supported, let alone the time frame for them to be tabled in Parliament if they are supported.
In respect of these recommendations, and those of the PSA's Proposed Controls that require legislative reform, the PSA submitted: "Legislative and regulatory change can happen within government with effort, including effort by the senior leadership of this department. The work bans are directed at encouraging that effort through, among other things, attracting [media attention], which they have done." [58]
Turning now to the JCC, Ms Royal gave undisputed evidence regarding the establishment of the JCC. In short, her evidence disclosed that: 1. prior to April 2023 the FOVB typically communicated concerns to the FCU or the Department through informal and ad hoc methods; 2. in January 2023 the PSA implemented a work ban related to safety concerns arising from illegal diving for abalone and cultural fishing practices - a dispute was filed with the Commission resulting in the Commission recommending that the work ban be lifted, which it subsequently was; 3. after the 2023 work ban matter was resolved, the general consensus amongst the Department and the FOVB was that the previous model of agitating issues was not working; 4. in March 2023 the Department engaged CoSolve to run a workshop to train all parties in how to collaboratively work together to resolve disputes; 5. during the workshop it was determined that the JCC should be established; 6. in April 2023 the FCU and the FOVB developed a Memorandum of Understanding (MOU) as to how the JCC would be run. The MOU contains, inter alia, mutual commitments from parties to consult in good faith, in a climate of mutual trust and to raise issues in a timely way. The MOU provides: "Where the parties have failed to reach an agreement this undertaking does not limit any party from taking whatever industrial action is available under existing legislation in relation to matters under consideration by the JCC. Where such industrial action is proposed, the relevant party must immediately bring it to the attention of the other party." [59]
Ms Royals' evidence, which included minutes of meetings, was that at each of the meetings of the JCC held in 2023 the issue of FO's safety when engaging with commercial fishers was raised. Notably: 1. it was agreed at a meeting held on 4 April 203 that the risk assessment comprising AM-27 would be implemented across the State; 2. the implementation of VMS and having on onus on the authorised fisher to be accountable for the crew were discussed at the meeting on 1 May 2023; 3. at the meeting held on 12 July 2023: 1. the Department confirmed that it was committed to proposing legislative change regarding a fit and proper person test for commercial fishing licence holders; 2. the collection of personal information in respect of unlicenced crew was discussed; 3. the Department advised that the Police Minister had been asked to support a regulation change to permit FOs to carry OC spray; 1. at the meeting held on 5 October 2023: 1. the implementation of OC Spray and the need for Ministerial approval was discussed; 2. the Department advised draft legislation requiring licence holders to meet a fit and proper person test was being developed; 3. the FOVB tabled items regarding: 1. FOs self-defence capability; 2. an administrative sanctions policy for dangerous and aggressive commercial fishing industry participants; 3. FO capability to run vessel registration checks; 4. unlicensed crew/unlicensed commercial fishing industry participants; and 5. body worn video.
Ms Royal explained that after October 2023 most of the members of the JCC branched out into a sub-group called the Fisheries Award Working Group to use a mutual gains approach to the development of a new award. As a result the JCC did not meet again until 21 August 2024. At that meeting the "Department was informed of the current unrest".
According to Ms Royal the Department members of the JCC said they would organise a meeting with Mr Sean Sloan, Deputy Secretary for Fisheries and Forestry, and Dr Moriarty was tasked with organising another session with the FOVB to gather more information.
The Department became aware of the proposed work bans on or about 9 September 2024, although not directly from PSA.
Upon becoming aware of the proposed work bans Ms Royal wrote to the PSA on 9 September 2024, requesting a detailed outline of the issues and an opportunity to respond. Her email also included the following: "There has been some progress on various fronts. By way of example, last week, the minister approved drafting of amendments to the Fisheries Management (General) Regulation 2019 and other regulations to ensure that NSW commercial fishing licence holders meet a 'fit and proper person" requirement. We want to ensure you and the FOVBE are fully informed of these developments. We are also mindful that one of the actions from the recent JCC was to set up a meeting to discuss these concerns further. In the spirit of resolving this matter at the Department level, we propose meeting this week to discuss these concerns further once we have a clearer understanding of the matters." [60]
I note that in FOVB had been advised in October 2023, i.e. 11 months earlier, that draft legislation requiring licence holders to meet a fit and proper person test was being developed.
Mr Shane Howes, an industrial officer for the PSA responded to Ms Royal on 9 September 2024 setting out in some detail the FOVB concerns. His email commenced: "We appreciate the effort that Fisheries undertaken however we are now mindful that the FOVB and DPI Fisheries have discussed some of these issues for now at least 2.5 years since our meeting in Port Stephens. The concern is that the PSA has exhausted our ability to move matters forward with the agency as these are decisions, in these cases lack of decisions, of Government. There has been little movement on fit and proper person Regulation. Drafting with Parliamentary Counsels Office could take many more months to completion. …" [61]
The Department was formally advised of the work bans to commence at midnight 11 September 2024, at 5:01pm on 10 September 2024. Mr Sloan wrote to Mr Howes of the PSA at on 1:34pm proposing a meeting with the FOVB at 2:20pm on 12 September 2024. The meeting occurred but no resolution was reached. It seems that during this meeting the FOVB were told for the first time that the Police Minister had denied the application by the Department for FOs to be equipped with OC spray. At the meeting the Department requested the PSA to set out "the genuine safety issues specifically related to the workban/night time activities and what needs to be addressed." This request was followed up by an email sent by Ms Royal to Mr Howes on 13 September 2024.
The PSA wrote an eight and half page letter to Mr Sloan setting out their concerns regarding safety, the lack of information as to efforts the Department had made to try and secure legislative change for those safety measures requiring legislative change (e.g. lobbying to permitted OC Spray); the lack of information and progress with respect to a trial of VMS; and its view as to factors that make nighttime inspections of the commercial fishers the subject of the work bans unsafe and how the PSA's Proposed Controls, as well as other measures, would make such inspections safer. The letter also set out concerns regarding inadequacies in legislation to enable FOs to effectively investigate possible breaches of the FM Act.
Mr Sloan responded to the PSA by letter dated 18 September 2024. [62] In that letter Mr Sloan set out 12 'highlights' of progress that he considered had been made in respect of improvements to the workplace, including with respect to safety and in response to concerns of FOs. Only eight of those 12 highlights appear to directly relate to the safety of FOs. At least five of the so-called highlights concerning safety had been or is the subject of criticism by the PSA.
Mr Sloan first referenced: "A comprehensive and independent Fisheries Officer Safety Review - conducted in May 2022 with all recommendations and actioned." In fact, as explained at [81] above, only four of the 12 recommendations of the CERT Review have been fully implemented; the SWMS comprising AM-17 remains current despite the CERT Review recommending extensive reform of it; and that work to implement the recommendation that all SWMS be reviewed and broken down into different and separated SWMSs had only recommenced in the middle of 2024 and is not due to be completed until June 2025.
Mr Sloan also referenced: "A 12 month trial of OC (capsicum) Spray on the NSW South Coast." The evidence showed that the trial had finished over a year earlier. As explained above, after over a year of being told that the Police Minister had been asked by the Department to support a regulation change to permit FOs to carry OC spray, the FOVB were told, on or about 12 September 2024, after the implementation of the work bans, that that request has been declined. It seems no explanation has been provided to the FOVB as to why the request has been declined, nor has the Department indicated what efforts, if any, they will now make to try and obtain a more positive outcome.
Mr Sloan also referenced: "A detailed Risk Assessment for Commercial Fishing client interaction completed and implemented." As noted at [88] no risk assessment has been done for trawl operations, with no immediate plans to do one [63] . Further the risk assessment stipulates as a control measure that nighttime inspections only occur with police assistance if the crew cannot be identified, which the evidence established will invariably be the case. Thus, the work bans essentially reflects the work method recommended in the risk assessment adopted in April 2023.
Mr Sloan also referenced: "Approval by the Minister for Agriculture to draft a broader Fit and Proper Person regime for inclusion in the Fisheries Management (General) Regulations". As noted at [102] - [103], the FOVB has been informed this had occurred in or around October 2023, yet a year later the change has still not be implemented.
Lastly Mr Sloan referenced: "Establishment of a data access arrangement with the Australian Maritime Safety Authority (AMSA) to access vessel information. A trial of this arrangement has recently been conducted and was very effective. Wider ranging arrangements will be implemented over the coming months." Mr Wright gave evidence that: "officers do not have the practical ability to search AMSA records in respect of a commercial vessel when performing inspections on the water and the AMSA record do not identify the master or crew aboard the vessel, or other important information necessary to risk assess the inspection." [64] Dr Moriarty addressed this evidence in his reply statement, but notably did not contradict Mr Wright's assertion. [65]
Mr Sloan also addressed the issue of the installation of VMS on commercial fishing vessels stating: "With respect to the rollout of the VMS project, which spans fisheries data collection, fisheries stock assessment, fisheries management and compliance objectives, the responsibility for determining how and where such projects are managed lies with senior leaders and the Fisheries Executive. These leaders are fully committed to ensuring the effective implementation of all projects while maintaining alignment with operational priorities and will continue to engage with all parts of the Fisheries business including the Fisheries Compliance Unit."
Leaving aside the fact that this paragraph appears to contradict other evidence to the effect that the rollout of VMS requires legislative reform, I do not consider that this paragraph contains any commitment to engage in a clear strategy to determine whether and how VMS ought to be rolled out, let alone a commitment to actually implement VMS, as sought by the PSA. With respect to the Deputy Secretary, this paragraph is one Sir Humphrey of 'Yes Minister' would be proud.
Mr Sloan's letter requested that, in light of the 'commitments' set out in his letter, that the work bans be lifted by 5pm on 19 September 2024.
The PSA responded to Ms Sloan's letter by letter dated 20 September 2024, raising issues with each of the matters referred to by Mr Sloan, including 11 of the 12 alleged 'highlights'. It not necessary for me to set out the content of the PSA's letter. It is sufficient to record that very many of the observations made in the letter are supported by the evidence tendered in this proceeding. The letter also discussed the PSA's concerns regarding the need for legislative reform to improve compliance enforcement and the perceived failure of the Department to fill position vacancies in a timely manner. The letter concluded with the PSA requesting the Department's commitment to: "1. Advertise each and every DFO vacancy by 5:00pm Friday 26 September. 2. Provide the PSA/FOVB of briefings to Government on the means to review and contemporise Part 9 Fisheries Management Act. 3. Supply material on how CERT recommendations classed as 'supported' have been actioned. 4. Supply material on DPI Fisheries requests to the NSW Police Minister to permit OC Spray for Fisheries Officers. 5. Supply material on DPI Fisheries requests to the NSW Attorney General to review the various Surveillance Acts that relate to the DPI Fisheries operations. 6. The expansion of the VMS to all commercial vessels as a matter of priority."
The work bans were not lifted and the Department filed its Notification of Industrial Dispute on 23 September 2024.

Consideration

As outlined at [19] above, the Department articulated five matters which it submitted indicated that dispute orders should be made. I address each of those in turn.

Serious risk of depletion of key fish stocks (with consequent ecological, environmental, economic, and cultural effects)

It may be readily accepted that enforcement of the FM Act and related legislation is essential for ecological, environment, economic and cultural reasons. Dr Moriarty gave extensive evidence regarding these matters. I accept this evidence and it is not necessary for me to repeat that evidence in this decision. I also accept that the serious depletion of key fish stocks, would have a very deleterious impact on the ecology, the environment, the economy of NSW and the cultural practices of Aboriginal fishers and their communities.
The question is however whether the work bans pose a 'serious risk of depletion of key fish stocks'. There is no persuasive evidence that this will be the case.
The evidence shows that no nighttime inspections of commercial fishers the target of the work bans have occurred since 2022-2023 and since 2019 very, very few nighttime inspections have occurred at all. There is no evidence of any nighttime inspections of inland commercial fisheries having being conducted since 2019. The evidence also showed that while nighttime offending by commercial fishers does occur, it is detected significantly less often than daytime offending (either because it happens less often or because enforcement activities are less at night) and it is a very small fraction of the overall nighttime offending (i.e. offending by non-commercial fishers), which is otherwise not affected by the work bans. The evidence also indicates that it is likely that some nighttime offending by commercial fishers is detected other than through nighttime inspections, with daybreak inspections at port being one way detection may occur.
Counsel for the Department accepted in final submissions that "nighttime inspection have been occurring relatively infrequently over the last few years" [66] and that the Department was "certainly not suggesting that the world will fall in overnight" [67] however he pointed to the fact that the work bans had received significant media attention and that as a result there was a risk that the illegal fishing activities might increase. Dr Moriarty gave evidence that this risk was posed because: 1. "persons involved in commercial fishing operations, once becoming aware of the work bans, are more likely to opportunistically participate in IUU [illegal, unreported and unregulated] fishing of a type covered by the night-time inspection bans" [68] ; 2. "members of the public may misunderstand media articles or be left with an incomplete understanding as a result of skim-reading or only reviewing a headline. Thus, members of the public, including recreational fishers, may come to believe (even if incorrectly) that the work bans go further than they actually do" [69] , including that the bans include inspections during the day, and hence may be "more likely to opportunistically participate in IUU fishing during the day - and even in sectors in which no work bans are in place." [70]
Dr Moriarty's evidence as to the possible risk is pure speculation. While I accept that it may be reasonable speculation, there is no evidence at all that the Department has taken any step to ameliorate this perceived risk. As Mr Saunders, counsel for the PSA submitted: "the Department has taken no steps to issue media of its own to clarify the bans or clarify the important regulatory work that is still going on." [71]
Important regulatory work is indeed still going on, including work that has the potential to detect IUU by commercial fishers operating at night, as explained by Mr Wright and as I have outlined at [53] above.
The only evidence of any actual impact of the work bans in the six weeks that have elapsed from their introduction to the date of the hearing, namely the alleged encroachment of a fishing trawler into a protected marine park does not support the Department's case that the bans are and will pose a 'serious risk of depletion of key fish stocks'. In that case, no attempt was made to survey the trawler, to monitor its activities, to request police assistance with a nighttime inspection or to attempt an inspection during daylight hours at sea or at port. All of those activities, which may have produced a positive outcome, are permitted under the work bans.
The Department has not established that the work bans pose a serious risk of depletion of key fish stocks with consequent ecological, environmental, economic, and cultural effects.

The work bans were imposed even although there were internal escalation mechanisms which were not used and the assistance of the Commission could have been sought - but was not.

The Department submitted that the PSA ought to have escalated their safety concerns via the Fisheries Compliance Health and Safety Committee (Fisheries HS Committee) or followed the Department's WHS Dispute resolution procedure.
Under the constitution of the Fisheries HS Committee, where a matter cannot be resolved or the solution for an issue is found to be unacceptable, the Fisheries HS Committee may request the 'DRNSW WHS Unit' to arbitrate. Dr Moriarty gave the following evidence as to what this means in practice: "…In practice, this means that an employee representative or the Chair will contact the Department's Director of Health and Wellbeing, or a senior manager in his team. They will consider if we can try to resolve the matter locally or refer the matter to the Department of Primary Industries and Regional Development Safety and Wellbeing Steering Committee (Department Safety Steering Committee). The purpose of the Department Safety Steering Committee is to act as the peak consultative body for safety and wellbeing across the Department and to provide strategic health and safety advice and guidance to the Department. The Department Safety Steering Committee is made up of nominees of the Executive Leadership Committee. To the best of my knowledge, the controls that are the subject of dispute in these proceedings have never been escalated to the Department Safety Steering Committee." [72]
Dr Moriarty also gave evidence that to the best of his knowledge the issues giving rise to the dispute have not been otherwise escalated in accordance with the Department's WHS dispute resolution procedure contained in the policy document titled "WHS Consultation Arrangements". According to Dr Moriarty: "The WHS dispute resolution procedure prescribes the following process: a. The issue should first be tried to be resolved locally b. If the issue is not resolved, the issue should be reported to the relevant work group HSC/HSR where appointed or the line manager c. If the issue remains unresolved the issue should be reported to the Health & Safety team who will pursue resolution in consultation with the work group and NSW WHS Regulator as required. d. Matters that cannot be resolved at the local level may also be escalated to the Department Safety Steering Committee."
The Department also submitted that the JCC had been established to allow for collaborative workshopping and consultation about workplace issues, including WHS issues, and that the FOVB had not raised any issues through the JCC between October 2023 and 21 August 2024. The Department submitted that the PSA's actions were contrary to the MOU regarding the JCC.
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, 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."
However, the Department did not assert that the PSA had failed to follow obligations under an industrial instrument made under the IR Act. Rather, it asserted that it was in the public interest for the Commission to make dispute orders in circumstances where the FOVB had failed to refer its concerns regarding WHS to the Fisheries WS Committee or the 'Health and Safety Team'. In the same breath the Department says that the JCC was established to deal with WHS issues and complains that the FOVB had not sufficiently raised its WHS concerns in the JCC forum before implementing work bans.
It seems to me, given the commendable decision of both parties to establish the JCC, founded on collaborative and cooperative principles in order to deal with workplace issues, including long-standing WHS issues affecting all FOs, it was both unnecessary and potentially counter-productive, for the FOVB to duplicate their concerns by raising them in forums outside of the JCC. I do not accept that it is in the public interest to make dispute orders simply because the FOVB's safety concerns were not raised with Fisheries WS Committee or the 'Health and Safety Team'. Given the MOU, the JCC was clearly the most appropriate forum for the FOVB to raise its concerns.
Further, as the Department was at pains to the stress, the Department does not have ultimate control over some of the requests being made by the FOVB, which require legislative amendment or approvals or additional funding. It is difficult to see how referring the safety concerns to more internal committees would assist matters at all. And there is no reason to expect, given what has occurred, that the outcomes would be any different.
The Commission would be concerned if the FOVB had, as the Department's evidence and submissions suggested, "unexpectedly" raised at the JCC meeting held on 21 August 2024, "issues about the safety implications associated with the powers of Fisheries (including inspection and surveillance powers)" [73] and then moved almost immediately to industrial action, particularly given the stated goals of the JCC and the commitments made by both parties in the MOU. However, that is not what occurred.
As I have detailed above, the CERT Review, which concluded in April 2022 detailed numerous defects and issues with the FCU's WHS framework, in particular with how that framework addresses risks associated with violent and aggressive stakeholders. Two and half years later only four of the recommendations have been fully implemented and concerningly, it seems work on two of them only commenced a few months ago.
Following the CERT Review the JCC was established, which was clearly a commendable step in the right direction and the FOVB continued to raise its concerns and discuss solutions in that forum.
While it is true that the FOVB did not raise safety issues with the JCC during the period October 2023 to August 2024, the evidence shows the JCC did not meet during that time as its members were busy dealing with award reform. Given the issues has been canvassed at length in meetings of the JCC up to October 2023 and the CERT Review had identified many matters requiring attention, it was reasonable for the FOVB to assume during the JCC's hiatus that the Department was making progress toward implementing the recommendations of the CERT Review and the matters raised by the FOVB. It is entirely understandable that they were disappointed to discover at the JCC's first meeting of 2024, held in August, that almost no progress had been made since their meeting in October 2023 and/or the Department did not inform them what progress had been made, if any, and instead proposed yet another meeting to discuss their concerns.
The seemingly leisurely approach to implementing the recommendations of the CERT Review is concerning. While I have no doubt that responsible officers within the Department do intend to do all they can to ensure and improve FOs safety, more can and should be done to hasten the process. I agree with Mr Saunder's submission that what emerges from the minutes of the JCC meetings "is the department clearly thinks the lengthy consultation process is going well and the PSA considers that it's been two and a half years and are concerned that they've exhausted their ability to move matters forward." [74]
In the circumstances, and noting that the MOU expressly does not limit any party from taking whatever industrial action is available under existing legislation in relation to matters under consideration by the JCC where agreement has not been reached, I do not consider the PSA's actions in implementing the work bans to be contrary to the MOU.
There is some force in the Department's argument that the PSA ought to have brought its concerns to the Commission rather than engage in industrial action. While there is also some force to the PSA's submission in response to the effect that the PSA's concerns are not "well-suited to being dealt with by the Commission" [75] due to the underlying public policy issues and requirements for legislative reform, I consider the PSA should have first tried to get some movement by notifying a dispute with the Commission. However, I also accept the PSA's submission that its industrial action has been carefully "designed not to have a direct impact or even an indirect impact on the compliance operations of the department." [76]
I do not consider that the PSA's failure to notify the FOVB's safety concerns to additional internal WHS committees; to engage in further meetings with members of the Department or the JCC; or its failure to notify a dispute to the Commission, before implementing the work bans, in the particular circumstances of this matter, warrant the making of dispute orders.

The public interest in ensuring that Governmental functions are not disrupted by damaging industrial action which is not in accordance with the Award;

It is not in dispute that under the Crown Employees (Department of Regional NSW) Fisheries Employees Award (the Award) FOs are required to work night shift, performing such duties as required.
The Department submitted that the bans are inconsistent with the Award and "are clearly causing disruption to Government functions, which are themselves contrary to the public interest." [77]
There is no evidence that the work bans are causing "disruption to Government functions". The FOs continue to work at night, including in the field, and are continuing to perform valuable compliance work. They are continuing to conduct inspections at port, including at night. They will conduct inspections of commercial fishers at daybreak. Importantly, they will continue to conduct nighttime inspections with police assistance.
Further, there is no evidence that nighttime inspections of the commercial fishers the subject of the bans have been conducted by the Department over the last year or two in any event, and even when they have been conducted they are very, very few in number. This may be, as submitted by the PSA, because the risk assessment comprising AM-27 directs that a nighttime inspection should not occur where the crew cannot be identified. In short, the PSA ban is simply reflecting the extent to which the Government, in the form of the FCU, has in fact been functioning.
It may be accepted that there is strong public interest in having public servants perform the job for which they paid. However, the mere fact members of a public sector union are engaging in industrial action and therefore not performing some or even all of their duties, cannot by itself indicate that dispute orders should be made, otherwise as Mr Saunder's submitted, it would be a "default position" that dispute orders would always be made. In other words, it would result in a presumption in favour of dispute orders. More than that is required.
In the circumstances of this dispute, where the members are continuing to work their night shifts; where the evidence indicates that the work they are doing during the night is exactly the same as the work they were doing over the last couple of years, and where they are continue to conduct nighttime inspections with police inspections, there is no case for dispute orders to be made.

The fact that a comprehensive suite of safety measures are already in place which have been effective in minimising, as far as practicable, the occurrence of dangerous interactions with commercial fishers during night inspections (and de-escalating such incidents where they have occurred)

I have discussed above the inadequacies of the Department's safety measures as identified in the CERT Review and the fact that, two and half years later, only four of the recommendations of the CERT Review have been fully implemented. In light of the findings of the CERT Review regarding the "suite of safety measures" I do not consider the existence of the said 'suite' to be a reason to make dispute orders.
The Department led evidence of the number of recorded incidents with aggressive stakeholders since 2017. The evidence, which Mr Moriarty accepted in cross examination could potentially not be a full record, [78] showed a very significant number of incidents, including at least one where a FO had been shot at with a firearm and another where the Departmental car was struck by an offender's car. The majority of incidents involved abuse and threats, including in some instances, death threats. So far as I could ascertain there were few physical injuries to FOs, however plainly the incidents pose a significant risk of psychological harm.
It was agreed that no FO has died due to an incident while performing their duties, however that does not mean that the risk is not present. Indeed, it is identified as a risk in the Department's SWMS comprising AM -17 and the risk assessment comprising AM - 27.
It is not possible to conclude, as the Department has invited me to, that the 'suite of safety measures' has "been effective in minimising, as far as practicable, the occurrence of dangerous interactions with commercial fishers during night inspections". What I can conclude is that a safety expert was critical of the 'suite of safety measures' and made twelve recommendations for improvements and two and half years later most of those recommendations have not been fully implemented, despite apparent support for the recommendations from the Department.
In the circumstances, I do not consider dispute orders should be made on the strength of the Department's 'suite of safety measures'.

The fact the PSA and the Fisheries Officers are refusing to lift the Bans until the Department makes changes which are not within its control.

This is not a fair characterisation of the PSA's position. As Mr Wright explained in evidence, which I set out at [81], the PSA has made it clear that it is not necessary for the PSA's Proposed Controls to be implemented in order for the FOVB to support the resumption of the relevant inspections. It is clear that what the PSA is seeking on behalf of its members is a more timely and comprehensive response to the safety issues perceived by its membership, many of which were identified in the CERT review. It is the case the PSA would like to see the PSA Proposed Controls implemented and its membership genuinely believe that they are reasonably practicable measures to reduce or eliminate the risks they face, however, as Mr Wright explained "… if the Relevant Inspections are safe to perform, the work will be resumed irrespective of how the notifier renders the work safe."

Conclusion

The Department has failed to make a sufficient case in support of dispute orders being made and I decline to make the dispute orders sought by the Department. Depending on the events that unfold in the future, it is possible that the circumstances may change and the Department may have a cogent case for dispute orders to made, but that is not the case at this moment.
Nevertheless, it is a rather unsatisfactory state of affairs to have public servants refusing to perform duties which are, at least in theory, part of their role description. That situation should not continue for longer than needs be.
In order to assist in bringing the work bans to an end I make the following recommendations: 1. The Department should, as a matter of priority, take all steps within its control to implement the recommendations of the CERT Review dated April 2022. 2. The Department should provide a report to the PSA setting out each of the steps it has taken and will, or will not, take to: 1. implement the recommendations of the CERT Review dated April 2022; 2. to obtain approval for FOs to carry OC Spray; 3. to obtain approval for the rollout of VMS on the commercial fishing fleet including the expected timeframes for any future steps to be taken. 1. The PSA should consider lifting the work bans upon receipt of the report referred to in recommendation 2, if not before.
I should also add that the parties should continue to discuss safety issues at the JCC in the spirit in which that body was established, and if need be, approach the Commission for its assistance.
The proceedings are otherwise dismissed. Janet McDonald Commissioner

Endnotes

Ex DPI 1 and Ex DPI 2.
Ex DPI 3.
Ex PSA 1.
Ex PSA 2.
Ex DPI 1 [8].
DPI 1 [9].
Ex PSA 1 [42].
Tcpt, 28 October 2024, p 65(31).
Ex DPI 1 [10] and [11].
Tcpt, 28 October 2024, p 72 (29) - (32).
Ex DPI 1 [12].
Tcpt, 28 October 2024, p 18 (41) - (45).
Ex DPI 1 [6].
Ex DPS 1 [68].
Ex PSA 1 [10].
Ex PSA 1 [12].
Ex PSA 1 [14].
Ex PSA 2 [12].
Ex PSA 2 [37].
EX PSA 1 [18].
Tcpt, 28 October 2024, p 69(40) - (50).
Ex PSA 1 [17].
EX PSA 2 [38]; Tcpt, 28 October 2024, pp 65(7) - (10), 71(24) - (31).
Tcpt, 28 October 2024, p 71(37) - (44).
Tcpt, 28 October 2024, pp 71(45) - 71 (2).
Tcpt, 28 October 2024, p 77 (4) - (8).
Ex PSA 1 [22].
Ex PSA 2 [43].
Ex PSA 2 [42].
Ex DPI 1 [166].
Ex DPI 2 [9(c)].
Ex DPI 2 [9(c)].
Tcpt, 28 October 2024, p 52(5)-(6).
Ex DPI 2 [9(d)].
DPI 1 [66].
DPI 1 [97].
Ex PSA 2 [47].
Ex DPI 2 [25].
Tcpt, 28 October 2024, p 14(40).
Tcpt, 28 October 2024, pp 14(47) - 15(14).
Ex DPI 2 [23(a)].
Tcpt, 28 October 2024, p 15(17).
Tcpt, 28 October 2023, p 14(31)-(34).
Ex DPI 1 [142].
Ex PSA 2 [120].
Ex DPI 1 [108].
Tcpt, 28 October 2024, p 26(19)-(20).
Tcpt, 28 October 2024, p 26(9) - (14).
Tcpt, 28 October 2023, p 38(6).
Tcpt, 28 October 2024, pp 45(35) - 46(10).
Tcpt, 28 October 2024, pp 19(44)- 20 (1).
Tcpt, 28 October 2024, p 38(1)-(10).
Tcpt, 28 October 2024, p 38(36).
Tcpt, 28 October 2024, p 38(24).
Tcpt, 28 October 2024, p 38(42) - (46).
Tcpt, 28 October 2024, p 38(39)-(40).
Tcpt, 28 October 2024, pp 7(49) - 8(3).
DPI 3, AR-3, p 4.
Ex DPI 3, AR-10.
Ex DPI 3, AR-11.
Ex DPI 3, AR-17.
Tcpt, 28 October 2024, pp 45(35) - 46(10).
Ex PSA 2 [30].
Ex DPI 2 [17].
Tcpt, 28 October 2024, p 77(30)-(31)
Tcpt, 28 October 2024, p 79(26).
Ex DPI 1 [102].
Ex DPI 1 [103].
Ex DPI 1 [104].
Tcpt, 28 October 2024, p 84(45)-(46).
DPI 1 [131] - [133].
Outline of Submissions on behalf of Notifier [21].
Tcpt, 28 October 2024, p 88(23)-(26).
PSAS [7].
Tcpt, 28 October 2024, p 88(31)-(32).
Outline of Submissions on behalf of Notifier [25].
Tcpt, 28 October 2024, p 33(3)-(4). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2024

Marine Estate Management Act 2013(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)

Cited By (1)