Industrial Relations Secretary & Ors v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales & Ors

Industrial Relations Commission (NSW)|2024-09-20|Before: Chin J

DECISION

By a notice of motion filed on 13 September 2024, the Industrial Relations Secretary (IR Secretary), the Secretary of the Department of Education and the Transport Secretary (together: the Secretaries) seek orders for a number of dispute proceedings currently before the Commission to be heard together on particular questions and with evidence and submissions in one matter to be taken as evidence and submissions in all other matters (the joinder motion).
The various union parties to the relevant dispute proceedings differ in their responses to the joinder motion. The notifier of the dispute proceedings in which this motion is filed, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA), opposes the application generally, but consents to the joinder of one of its disputes against the Transport Secretary. In contrast, the majority of other union parties to the remaining disputes resist the joinder of this dispute between the PSA and the Transport Secretary (and another dispute) but otherwise do not oppose the joinder motion.

Background

On 27 June 2024 the PSA notified the existence of industrial disputes with each of the Secretaries relating to: 1. salaries in the Crown Employees (Public Sector- Salaries 2022) Award in matter 2024/237120 (the Salaries Award dispute); 2. salaries in the Crown Employees (School Administrative and Support Staff) Award (the SASS Award dispute) in matter 2024/237303; and 3. salaries in the Roads and Maritime Consolidated Salaried Award 2019 and Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2022 in matter 2024/237268 (the First Transport Awards dispute). [1] In substance, this dispute also involved a number of other unions (the Combined Transport Unions) in dispute with the Transport Secretary with respect to both salaries and conditions.

The joinder motion

The Secretaries initially sought a total of eleven other proceedings, including the First Transport Awards dispute, to be heard together with the Salaries Award dispute and the SASS Award dispute which have been programmed for arbitration. The eleven other proceedings are set out in a Schedule to the joinder motion and are identified in par 8(b) and (c) above. For reasons noted in par 29 below, there are presently only ten other dispute proceedings at issue.
The Secretaries seek the following orders: 1. An order, pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), that each of the proceedings listed in the Schedule to this Notice of Motion be heard together. 2. The evidence and submissions filed in one proceeding listed in the Schedule to this Notice of Motion is taken to be evidence and submissions filed in all other proceedings listed in the Schedule to this Notice of Motion. 3. An order, pursuant to r 28.2 of the UCPR that the following issues be heard first as a separate question: 1. What constitutes a fair and reasonable wage increase, 2. The term of the Awards, and 3. The wording of the No Extra Claims Clause. 1. Such other or further orders as the Commission sees fit.
Apart from the First Transport Awards dispute, certificates of attempted conciliation have been issued in all of the other disputes that are sought to be joined to the PSA arbitration proceedings.

Relevant principles

There was no dispute between the parties about the source of the Commission's power to consolidate or hear proceedings together; nor about the principles governing the Commission's exercise of discretion in doing so.
The power is contained in r 28.5 of the UCPR: [11] "28.5 Consolidation etc of proceedings If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any of them."
This power resides within a context in which, by operation of ss 162(2)(a) and 163(1) of the Industrial Relations Act 1996 (NSW) (the IR Act), the Commission is required to act as quickly as is practicable, is not bound to act in a formal manner, may inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
In exercising the discretion to hear proceedings at the same time under r 28.5 the Commission must also have regard to the overriding statutory mandate pursuant to s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) for the just, quick and cheap resolution of the real issues in dispute. [12]
In Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] Besanko J articulated nine relevant factors to be taken into account, which was endorsed by Ward CJ in Eq (as the President then was) in Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196 at [44], as follows: "whether the proceedings are broadly of a similar nature; whether there are issues of fact and law common to each proceeding; whether lay and expert witnesses in one proceeding will be witnesses in one or more of the other proceedings; whether there has been an alternative proposal (that there be a test case with agreement by the parties agreed to abide the outcome or at least the determination of common issues of fact and law); whether there is a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time; whether there will be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately; whether an order that the proceedings be tried at the same time will create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence; whether one proceeding is further advanced in terms of preparation for trial than the others; and whether there are parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time."
It is relevant to observe that the broadly similar nature of the proceedings and the mere fact that some issues are common to each proceeding are not of themselves necessarily compelling considerations. The degree to which the factual and legal issues overlap is of course relevant. It is instructive, for example, that Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd at [17] and [27] declined to join the proceedings in circumstances where not all issues were common issues and there would be difficulties in managing the admission of evidence between different proceedings.
Generally, the discretion to hear proceedings together is more likely to be exercised where the commonality of issues and evidence is significant, considerable or substantial. [13] In Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [26]-[27], Austin J endorsed the statement by Wolff J (as his Honour then was) in Cousins v Cousins (1948) 51 WALR 57 at [60] as applicable to applications for joint hearings, including that "consolidation is desirable and should be allowed where … the issues are substantially the same, and the evidence is to all intents and purposes identical". [14]
The "desirability" in having all matters in controversy arising out of related facts determined at the one time "stems, at least in part, from the need to avoid conflicting results if the proceedings are heard separately by different judges". [15] It follows that the underlying concern about conflicting results dissipates where, notwithstanding some degree of commonality, the differences in the issues between proceedings are substantial and may well warrant different results between proceedings.
Ultimately, I would apply to the management of dispute proceedings in the Commission the pragmatic approach referred to by Austin J in Ghose v CX Reinsurance Company Ltd at [27]: "… the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else" (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court."

Parties' submissions

The Secretaries contend that the objectives in ss 56 and 57 of the Civil Procedure Act for the just, quick and cheap resolution of proceedings would be achieved by hearing all the relevant dispute proceedings at the same time. They submit that all the dispute proceedings at issue share common questions, notably, the appropriate increase to wages to be ordered in respect of each award, the terms of a "no extra claims" clause, and the term of the awards; relying on an affidavit affirmed by Kira Kless on 13 September 2024 (Ex A) in which these common questions were said to have been identified in all of the proceedings, and which disclosed the various unions' positions on these questions where possible.
According to the Secretaries, these questions share common considerations which will require global evidence that is likely to be common to all proceedings. The Secretaries point to "a complete overlap in the legal and factual matters to be determined" on the topic of the state of the economy and the fiscal position and outlook of the Government, which are mandatory considerations under s 3 and s 146(2) of the IR Act; and emphasise that the same evidence in their cases is likely to be given by the same witnesses in all of the proceedings. As such, the joinder would allow for witnesses to provide evidence once instead of across repeated hearings. It would also ensure that there is consistency of decision making across all awards.
However, counsel for the Secretaries, Mr Watts, was careful to emphasise that the joinder was not intended to preclude any of the union parties from the opportunity to make whatever submissions and to lead whatever evidence they wish as the proceedings unfold. And the Secretaries appear to accept that "there may be different answers to the same question" in that it would remain open to the Commission make different orders where appropriate for different awards, such as different salary increases and different forms of "no extra claims" clause to accommodate any additional claims that are pressed by the union parties.
To the extent that there are issues in some of the dispute proceedings concerning conditions that travel beyond the common questions (including those with employee-related cost consequences for the employer which could have an impact on the determination of the quantum of salary increases), the Secretaries appear to propose a two-stage arbitration whereby the Commission would determine "separately and upfront" the question of salaries by reference to "economic and fiscal evidence", with the question of additional conditions such as allowances determined at a later time. The Secretaries submitted that the means by which such additional claims could be determined "would just have to be something that the Commission would need to decide when it came to addressing the NEC [no extra claims] clause in the preliminary tranche of hearings relating to that question, as to what [the] terms of the NEC clause should be in view of any additional claims that are pressed"; while also affirming that the terms of the "no extra claims" clause advance by them would shut out any prospect of arbitrating these claims for the life of the awards. In the alternative, Mr Watts acknowledged (without embracing) that the disputes involving such additional claims could simply be excluded from the joinder.
The PSA opposes the application save for the joinder of the First Transport Awards dispute. Its primary concern is that the joinder of the other disputes will lead to a "blow out" of the current hearing dates set in November and December this year for the PSA arbitration proceedings, both in the sense that those dates will not be maintained by reason of other parties being incapable of complying with the existing timetable for the filing of evidence and because the hearing time required to determine the additional disputes will substantially exceed five days. The PSA's concerns proceeded upon the assumption that bespoke evidence from employees covered by each award going to their particular circumstances will be inevitable.
Counsel for the PSA, Mr Boncardo, expressed confidence that the existing hearing dates would not be disturbed by the joinder of the First Transport Awards dispute alone; although he fairly and appropriately accepted that the existence of a dispute in that matter over a substantial range of conditions with potential cost consequences "would militate against that matter being consolidated"; and that any inability on the part of the other interested unions in the First Transport Awards dispute to meet the current timetable for the PSA arbitration proceedings "weighs against consolidation of that matter".
The majority of other union parties to the remaining disputes at issue were represented in the hearing on the motion by Unions NSW and do not oppose the joinder motion for the purposes of determining final relief, save for the First Transport Awards dispute and matter 2024/238958 (Crown Employees (Department of Planning Industry and Environment - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2023 Award). They relied on two affidavits: one affirmed by Jacob Ward on 20 September 2024 identifying unresolved claims in matter 2024/238958 (Ex 1), and another affirmed by Ruby Bouwsema on 20 September 2024 on the progress of bargaining in respect of the First and Second Transport Awards disputes (Ex 2).
Unions NSW also oppose the joinder of matter 2024/238512 (Crown Employees (Fire and Rescue NSW Tradespersons) Award 2022) for the purposes of final relief; but the Secretaries abandoned their attempt to join this matter in the course of the hearing on the joinder motion.
Without conceding the commonality of questions or issues asserted by the Secretaries, and while maintaining their right to contend for different outcomes in respect of different awards, counsel for Unions NSW and the other unions, Mr Fagir, submitted that "having considered the matter seriously" the unions "do not currently anticipate that there will otherwise be substantial award-specific issues arising, nor do they anticipate that substantial award-specific evidence will be lead". On this basis the other unions contend that they are able to comply with the Commission's existing directions in the PSA arbitration proceedings.
The two disputes identified in par 28 above are exceptions to this position. The other unions cannot comply with the existing directions for the filing of evidence and submissions in the PSA arbitration proceedings because they each involve substantial award-specific issues.
Mr Fagir identified two other disputes in which there would be "narrow additional issues" which (he contended) could nevertheless be accommodated in the course of the PSA arbitration proceedings. The first is matter 2024/244274 (Roads and Maritime Services (Traffic Signals Staff) Award 2024) involving an issue concerning classifications. Mr Fagir submitted that this additional issue would be relevant to the terms of any "no extra claims" or "leave reserved" clause, but the Commission can determine salaries without reaching a conclusion on the question of classifications. Mr Fagir referred to a second "narrow issue in relation to one other award" but did not have instructions to reveal any further detail.
Ultimately, the position of Unions NSW and the other unions is that "there will be a very small number of minor issues that would not be apt to disrupt the progress of the hearing". If that position was to change, Mr Fagir accepted that it would be his clients' "obligation to flag the issue as early as possible and propose some sensible way forward".
The Construction, Forestry, Mining and Energy Union (New South Wales Branch) (CFMEU) does not oppose its dispute in matter 2024/238950 (Crown Employees (Heritage Stoneworks) Wages Staff Award 2021) being joined provided that the component of its dispute concerning a review and updating of the award classification descriptions is separately determined.
The Media Entertainment and Arts Alliance NSW (MEAA) consents to the joinder motion in respect of its dispute in matter 2024/243294 (Parliamentary Reporting Staff (Salaries) Award).
No party opposes the Commission hearing all of the disputes at the same time on 6 November 2024 for the purpose of considering an interim wage increase to be granted pending final determination.

Consideration

At least in a broad sense, the dispute proceedings sought to be joined by the Secretaries are of a similar nature to the disputes in the PSA arbitration proceedings, and there is a significant degree of overlapping issues of fact and law common to each proceeding. As contended by the Secretaries, it is clear that, in each proceeding, the Commission will be asked to determine salary increases, the terms of "no extra claims" clauses (if any) and the term of the award in part by reference to expert evidence on the state of the New South Wales economy and the Government's fiscal position and outlook that is likely to be same across all matters. Even if not the "complete overlap" on these topics that is asserted by the Secretaries, [16] there is little doubt that there will be a very substantial overlap in the evidence dealing with the overall fiscal and economic outlook.
There are obvious savings in time and expense in the Commission dealing with this critical issue and evidence in respect of the various disputes at the same time. The PSA arbitration proceedings itself concerns applications for salary increases across a range of disparate public sector awards. The PSA's application concerning the Crown Employees (Public Sector - Salaries 2022) Award alone involves 59 awards and about 54 agreements and determinations across a wide spectrum of public sector employees. The saving in time and expense to be derived from supplementing these proceedings with a few more awards that are at issue in very similar disputes is consistent with the Commission's obligation to act as quickly as is practicable, and to achieve the just, quick and cheap resolution of proceedings.
I am, however, conscious of the potential for bespoke evidence from employees covered by each award going to their particular circumstances to dilute the commonality of the evidence in each proceeding and give rise to the risk of disturbing or extending the hearing in the PSA arbitration proceedings to the inconvenience and prejudice of the PSA and its members. In my view, any significant disruption to the PSA arbitration proceedings counts decisively against granting the joinder motion, and must be avoided.
In addition, the existence of additional claims in the other dispute proceedings ─ especially those involving employment conditions with employee-related costs consequences ─ is likely to give rise to granular issues that are unique to particular awards and require the Commission to evaluate claims for salary increases by taking into account the economic and fiscal significance of particular award conditions. The Secretaries' proposal for a two-stage arbitration for matters of this kind (see par 25 above) does not seem practicable nor desirable, nor particularly efficient, in circumstances where the appropriateness of salary increases cannot be properly assessed in isolation from a consideration of the fiscal impact of changes in award-specific conditions.
However, the Commission is assured by Unions NSW and its affiliates that the "very small number of minor issues" arising in the majority of the other disputes "would not be apt to disrupt the progress of the hearing"; and that they do not anticipate leading any substantial award-specific evidence. I accept that this is the carefully considered current assessment of the parties to the majority of the subject disputes.
It is clear that the two exceptions to this assessment by Unions NSW are not apt to be joined to the PSA arbitration proceedings, namely, the First Transport Awards dispute (matter 2024/237268) and matter 2024/238958. The Commission has been informed that the relevant unions in these matters are simply not in a position to comply with the existing timetable in the PSA arbitration proceedings. Notwithstanding the PSA's consent to joining the First Transport Awards dispute (and for the same reason advanced by the PSA in opposing the joinder of the other disputes), I am not prepared to disrupt the arbitration proceedings by joining these two disputes.
The PSA's position is that the First Transport Awards dispute (and only this additional dispute) can be heard within the existing hearing dates, notwithstanding the other interested unions claiming a higher salary increase and the existence of the Second Transport Awards dispute concerning a litany of outstanding conditions, many of which have costs consequences that may be relevant to the assessment of salary increases. The Second Transport Awards dispute is at an early stage of progress and remains in conciliation before me; and I have not yet issued a certificate in respect of the First Transport Awards dispute. For the reasons given in par 40 above, any determination of salary increases may require the substance of these two disputes to be considered together. The potential difficulty in determining the question of salaries in isolation from the substance of the Second Transport Awards dispute, as well as its disparity with the Second Transport Awards dispute in terms of preparation for arbitration, also militates strongly against joining this dispute.
The allocation of the existing hearing dates in the PSA arbitration proceedings were based on estimates of the hearing time required to also deal with the First Transport Awards dispute. This is the basis for the PSA's comfort with joining this dispute. [17] A corollary of not joining the First Transport Awards dispute is to make at least some of the existing hearing time available for dealing with the limited number of minor award-specific issues foreshadowed by Unions NSW in respect of the other disputes. This practical consideration weighs in favour of accommodating the joinder of the other disputes.
This attention to the nature of the claims in each set of dispute proceedings and the likely course of the arbitration if the disputes are jointly heard suggests that the joinder motion should be granted in that the subject disputes should be heard on the questions of salaries, term of awards and the existence or terms of "no extra claims" clauses at the same time as the PSA arbitration proceedings, save for the two exceptions referred to in par 42. There does not, however, seem to be any reason to exclude the exceptional disputes from being heard together with all the other relevant disputes at the same time if only for the purpose of considering an interim wage increase to be granted pending final determination.
Weighing up all the factors, being those I have specifically raised along with other matters mentioned in submissions but not expressly addressed in these reasons for judgment, I have reached the conclusion that at this stage orders should be made: (1) for a joint hearing of all of the dispute proceedings at issue for the purpose of considering an interim wage increase; and (2) for a joint hearing of the dispute proceedings ─ excluding the two matters referred to in par 42 ─ for the purpose of considering final relief. I propose to adopt this course as a matter of procedural pragmatism consistent with the requirements of fairness, while emphasising two important qualifications or matters.
Firstly, none of the parties contended that the joinder of the various disputes would necessarily bind the parties to the same outcome on any of the three questions. The orders I make are consistent with any party's claim to be treated differently in terms of any outcome in the arbitrated proceedings being dealt with on its merits. [18] It seems likely, for example, that the disputes involving some additional but distinct claims that remain outstanding identified in par 32 above, and perhaps also the dispute in matter 2024/238950, [19] will require particular attention as to the scope and operation of any "no extra claims" clause that may affect the ability of the parties to pursue and resolve those claims. It does not follow from the fact that those matters are joined that a Full Bench will in fact determine that the outcome of the common questions should apply in respect of those awards. That is, the range of possibilities would include that a different outcome in respect of a common question would be appropriate in respect of a particular award, such as a different no extra claims clause, or alternatively and more fundamentally, that the Full Bench did not have sufficient material before it to determine the common questions in respect of a particular award.
In that regard it is to be noted that "no extra claims" clauses traditionally either reflected undertakings or commitments given by parties at the time a consent award was sought that there would be no further claims made during the life of the proposed award [20] or reflected the Commission's view that all claims had been arbitrated and on that basis no further claims would be entertained during the nominal term of the award. Without limiting the circumstances in which "no extra claims" clauses may not be appropriate, I observe that a clause preventing an applicant from continuing to press the balance of its case may well be inappropriate where that party brings to the Commission claims, and the Commission, at the request of the parties or otherwise, only arbitrates some of them (such as determining salaries claims but not claims regarding reclassifications).
Secondly, the PSA rightly points out that the current anticipated position of Unions NSW and its affiliated unions as to the substance and scope of their evidentiary cases in the other dispute matters may be subject to change in a way that ultimately disturbs the existing program in the PSA arbitration proceedings. This is underscored by the proper and candid observation made by counsel for Unions NSW that its present assessment is attended by "an unavoidable degree of speculation in relation to the future of the proceeding". This concession led to the following relevant exchange: "HIS HONOUR: If matters were to be joined and your present anticipation of capacity to comply with the existing directions [be]comes upset by something that arises in one or other of the dispute matters, then the Commission can deal with that in due course, can it not, by giving you leave to apply, [to] approach the Commission for variations or indeed a reconsideration of the joinder, if substantial issues were to arise that you don't presently anticipate[?] FAGIR: Yes, and it might be at that point the decision is reserved, effectively, and the matter is set off on a different course, or it might be that it can be accommodated in some way, and we'd accept that it would be our obligation or my client's obligation to flag the issue as early as possible and propose some sensible way forward, but the decision wouldn't be - the decision about the trajectory of the matters wouldn't be once and forever, as we would see it."
It is entirely appropriate for Unions NSW and its relevant affiliates to assume responsibility for approaching the Commission at the earliest possible opportunity in the event that circumstances or issues arise that are likely to result in non-compliance with any of the Commission's existing directions in the PSA arbitration proceedings, or that might cause any disturbance to the existing hearing dates. The orders that I make in determining the joinder motion are provisional and dependent on the continuing validity of the current assessment by Unions NSW and its affiliates as to the substance and scope of their evidentiary cases in the other relevant dispute matters. I expect the parties generally, and especially Unions NSW, to approach the Commission with a suitable application as soon as they become aware of any significant change to this current assessment.

Orders

For the reasons above, I make the following orders: 1. Each of the dispute proceedings in matters 2024/238279, 2024/243271, 2024/243257, 2024/243299, 2024/243294, 2024/238950, 2024/244274, 2024/274778 is to be heard together with the arbitration of matters 2024/237120 and 2024/237303 in accordance with the directions made by the Commission on 11 September 2024 in matters 2024/237120 and 2024/237303 (the PSA arbitration directions). [21] 2. Each of the dispute proceedings in matters 2024/237268 and 2024/238958 is to be heard together with the arbitration of matters 2024/237120 and 2024/237303 only for the purpose of determining the question of interim relief presently listed for hearing before the Full Bench of the Commission on 6 November 2024 in accordance with the PSA arbitration directions. 3. To the extent that the relevant dispute proceedings are heard together pursuant to Orders 1 and 2, the evidence and submissions filed in one proceeding is taken to be evidence and submissions filed in all other proceedings. 4. The parties to the dispute proceedings referred to in Order 1 are to: 1. file and serve any applications to make or vary relevant awards by 4.00pm on 4 October 2024; and 2. otherwise comply with directions 4 to 10 of the PSA arbitration directions. 1. The parties to the dispute proceedings referred to in Order 2 are to: 1. file and serve any applications to make or vary relevant awards by 4.00pm on 4 October 2024; and 2. otherwise comply with directions 4 to 6 of the PSA arbitration directions to the extent that those directions relate to the question of interim relief. 1. Liberty to apply on 2 days' notice is granted.

SCHEDULE 1 DIRECTIONS: In relation to Matters 2024/237120 and 2024/237303: 1. The parties are to file and serve any applications to make or vary relevant awards by 4.00pm on 13 September 2024. 2. The parties are to file and serve any applications for one or more industrial disputes currently before the Commission to be joined to these proceedings by 4.00pm on 13 September 2024. 3. The dispute matters are listed before Justice Chin at 10:00am on 20 September 2024 for determination of any joinder applications filed in accordance with Order 2. 4. By 4:00pm on 11 October 2024, the parties are to file and serve on each other: 1. all witness statements to be relied on for each witness and any other relevant documentation, including any expert evidence, in respect of both the final awards or variations sought (final relief) and the question of whether and to what extent the Commission should make or vary the relevant awards on an interim basis (interim relief); and 2. an outline of submissions, not exceeding 5 pages, on the matter of interim relief. 1. By 4:00pm on 1 November 2024 the parties are to file and serve on each other: 1. all witness statements in reply any other relevant documentation in reply; and 2. an outline of submissions in reply not exceeding 5 pages, on the matter of interim relief. 1. The dispute matters are listed for Hearing before the Full Bench of the Commission on the matter of interim relief only at 10:00am on 6 November 2024. 2. By 4:00pm on 15 November 2024, the parties are to file and serve on each other: 1. all witness statements in reply and any other relevant documentation in reply; and 2. an outline of submissions not exceeding 10 pages, on the matter of final relief. 1. By 4:00pm on 21 November 2024, the parties are to: 1. give notice to the opposing party of any witnesses required for cross-examination; and 2. file and serve an electronic Court Book in the form required by Practice Note 32. 1. By 4:00pm on 22 November 2024, the parties are to file and serve a joint list of authorities and legislation, along with a joint authorities bundle, in accordance with Practice Note 2A. 2. The dispute matters are set down for Hearing before the Full Bench of the Commission on the matter of final relief at 10:00am on 26, 27 and 28 November 2024 and on 9 and 10 December 2024. NOTE: Certificates of attempted conciliation were issued by Justice Chin in both dispute matters on 6 September 2024.

Endnotes

The Roads and Maritime Services School Crossing Supervisors Award 2019 which was originally nominated in this dispute is now the subject of the principal dispute concerning the Crown Employees (Public Sector - Salaries 2022) Award in matter 2024/237120: see Tcpt, 20 September 2024, p 10(38).
Crown Employees (Public Sector - Salaries 2024) Award (2024/342428) and the following awards flow on from the Salaries Award for the purpose of salary increases: Crown Employees (SAS Trustee Corporation) Award 2024 (2024/342504), Landcom Award 2024 (2024/342489), Local Land Services Award 2024 (2024/342471), Independent Commission Against Corruption Award 2024 (2024/342450), Crown Employees (Independent Pricing and Regulatory Tribunal) Award 2024 (2024/342354); Crown Employees (Audit Office) Award 2024 (2024/342459), Service NSW (Salaries and Conditions) Employees Award 2024 (2024/342465), Insurance and Care NSW Award 2024 (2024/342512) and Roads and Maritime Services School Crossing Supervisors Award 2024 (2024/342977).
Crown Employees (School Administrative and Support Staff) Award 2024 (2024/343065).
Roads and Maritime Services Consolidated Salaried Award 2024 (2024/343052) and Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2024 (2024/343879).
Crown Employees Wages Staff (Rates of Pay) Award 2024 (2024/344377), Crown Employees (Security and General Services) Award 2024 (2024/344191), Crown Employees (Skilled Trades) Award 2024 (2024/344214), Crown Employees (Transport Drivers, &c) Award 2024 (2024/344237), Farm Assistants (Department of Education) Wages and Conditions Award 2024 (2024/344394), Crown Employees (Household Staff - Department of Education) Wages and Conditions Award 2024 (2024/344103), Crown Employees (NSW Department of Premier and Cabinet) - Museum of Applied Arts and Sciences Electrical Preparators Award 2024 (2024/344106), Crown Employees Conservation Field Officers (Department of Industry, Skills and Regional Development and NSW Office of Environment and Heritage) Award 2024 (2024/344244), Crown Employees (Office of Environment and Heritage - Royal Botanic Gardens and Domain Trust, Building and Mechanical Trades Employees) Award 2024 (2024/344169).
Crown Employees (Heritage Stoneworks) Wages Staff Award 2024-2027 (2024/342942).
Crown Employees (Department Of Climate Change, Energy, The Environment And Water - National Parks And Wildlife Service) Field Officers And Skilled Trades Salaries And Conditions Award 2024-2027 (2024/342899).
Crown Employees (Fire and Rescue NSW Tradespersons) Award 2024 (2024/342301).
WIN Sports and Entertainment Centres Australian Workers' Union (State) Award 2024 (2024/342749).
As to the remaining disputes that are the subject of the joinder motion, the IR Secretary had filed applications on 1 July 2024 for the making of the following awards: the Crown Employees (Department of Planning, Housing and Infrastructure) Sydney Olympic Park Authority Managed Sports Venues Award 2024-2026 (matter 2024/243271); the Taronga Conservation Society Australia Retail and Restaurant Employees Award 2024-2026 (matter 2024/243257); the Taronga Conservation Society Australia Wages Employees Award 2024-2026 (matter 2024/243299); the Parliamentary Reporting Staff (Salaries) Award (matter 2024/243294); and the Roads and Maritime Services (Traffic Signals Staff) Award 2024 (matter 2024/244274).
Pt 28 of the UCPR applies to proceedings in the Commission: UCPR r 1.5(1) and (2), Sch 1.
Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196 at [45]; see also s 4(1) and Sch 1 of the Civil Procedure Act.
Cf. Marzol v Joubert; Marzol v Killen [2018] NSWSC 586 at [7]-[8]; Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196 at [82]-[83], [94]; The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority [2022] NSWSC 1520 at [25].
See also Fitzgerald as Administrator of the Estate of the Late Lesley Provan v Cooper; Fitzgerald as Administrator of the Estate of the Late Lesley Provan v The Valley Centre for Environmental Education & Research Incorporated [2020] NSWSC 451 at [8].
Marzol v Joubert; Marzol v Killen [2018] NSWSC 586 at [9] (Harrison J as his Honour then was), quoted, with approval, in Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196 at [42], by Ward CJ in Eq (as the President then was).
The PSA foreshadows obtaining economic evidence that addresses the particular circumstances of the employees covered by its awards: see Tcpt, 20 September 2024, p 16(5).
See Tcpt, 20 September 2024, p 28(19).
Cf. Crown Employees (Roads and Traffic Authority - Salaried Staff Salaries and Conditions of Employment) Award 2008 [2008] NSWIRComm 139 at [15].
Dispute involving the CFMEU and the Crown Employees (Heritage Stoneworks) Wages Staff Award 2021; see Tcpt, 20 September 2024, p 24(40), in which Mr Syron for the CFMEU indicated that the parties are close to an agreement on updating the classification structure in that award, which was a matter unrelated to their salaries claim.
Re Corrections Health Service Nurses' (State) Award (1999) 90 IR 235, where Wright J, President, sets out at p 239 a no extra claims" provision the terms which at p 243 his Honour states to have been "in the traditional form", which was a term that recognised an undertaking, rather than the current form which is an injunction that prevents a claim being made.
The PSA arbitration directions are set out in a schedule to this judgment.

Amendments 26 September 2024 - Case name amended 27 September 2024 - Amended to include the matter numbers of award applications 2024/340046 (par 7) and 2024/342428 (footnote 2). 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: 27 September 2024

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