Industrial Relations Secretary v Unions NSW [2025] NSWIRComm 9

Industrial Relations Secretary v Unions NSW [2025] NSWIRComm 9 | Case summary | Zoe

[6]

The relevant procedural history is set out in some detail in Industrial Relations Secretary & Ors v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales & Ors [2024] NSWIRComm 5 (the Joinder Decision) at [3]-[12] and in the Interim Decision at [6]-[13].
The salient features of that history are that, on 26 September 2024 (together with two other matters that were joined for the purposes of interim relief only), I ordered the dispute proceedings "to be heard together with the arbitration of" two applications by the Public Service Association and Professional Officers' Association Amalgamated Union of NSW including as against the Industrial Relations Secretary concerning the Crown Employees (Public Sector - Salaries 2022) Award (the PSA disputes). The order was for the dispute proceedings to be so heard in accordance with extant directions that the Commission had made for progressing the PSA disputes to separate hearings on the questions of interim and final relief (the PSA arbitration directions).
The dispute proceedings were joined together with the PSA disputes because there was a significant degree of overlapping issues of fact and law common to each proceeding, focussing on claims for salary increases, the terms of "no extra claims" clauses (if any) and the term of the awards 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 was likely to be same across all matters. At the time, the PSA disputes involved at least 59 awards and about 54 agreements and determinations across a wide spectrum of public sector employees; and I considered that the saving in time and expense to be derived from supplementing those proceedings with the few more awards that were at issue in the dispute proceedings was consistent with the Commission's obligation to act as quickly as is practicable, and to achieve the just, quick and cheap resolution of proceedings. In limiting the joinder of two of the dispute matters to the question of interim relief, I took the view that the existence of additional claims was likely to give rise to granular issues that were unique to particular awards and, for that reason, ought not to be determined together with the PSA disputes for the purposes of final relief. Matters involving parties that were otherwise not in a position to comply with the PSA arbitration directions were not joined.
Before the hearing on interim relief, on 16 October 2024 the PSA and the NSW Government reached an agreement resolving the PSA disputes. In consequence of this settlement, on 17 October the Full Bench vacated the PSA arbitration directions and made fresh directions programming the outstanding matters, including the dispute proceedings, to a hearing on the question of interim relief only. Following the settlement of further disputes involving awards concerning the Transport Secretary, the dispute proceedings continued to be heard together for the purposes of interim relief, which was granted in the form of an increase of 3.5% for each the awards involved in the dispute proceedings: the Interim Decision at [5], [76].

[7]

Consistent with the parties' agreement that most of the dispute proceedings should continue to be dealt with together, I accept that the consolidation of these matters remains justified in principle, albeit with less force than applied at the time of the Joinder Decision. From this outline of the relevant procedural history, it can immediately be appreciated that much of the impetus for the orders I made in the Joinder Decision has since fallen away. The scale of efficiencies to be gained from consolidating the final hearing of the dispute proceedings with the much larger vehicle of the PSA disputes are substantially diminished following the resolution of the latter.
In addition, it is critical to bear in mind that the original consolidation of the proceedings was predicated on the absence of granular issues unique to particular awards that ought to be determined in separate proceedings.
In this context, I have determined that the issues identified by Unions NSW with respect to the awards referred to in items 6, 11 and 13 of Schedule A are sufficiently granular and unique to those awards to justify their separate determination on the question of final relief, and potentially so in the context of the review being conducted by Commissioner McDonald. I have reached this conclusion for the following four reasons.
Firstly, there is no dispute that these awards were identified as containing some classifications that fell below the National Minimum Wage at the hearing for interim relief; and that the Secretaries' undertaking to not pay any of the employees subject to the awards in these proceedings below the National Minimum Wage pending resolution of final relief has disturbed internal relativities between classifications in these awards.
Secondly, in State Wage Case 2024 (No 2) [2024] NSWIRComm 6 at [25]- [33] the Full Bench referred the matter to Commissioner McDonald in part because of concerns that "at least over the last five years, the increases awarded to the minimum rates in the Category 1 Awards have been insufficient to keep pace with inflation, such that they have decreased in real terms, and to a degree greater than the reduction in the real value of rates under federal modern awards". The referral was also made in light of the observation that "allowing the wage rates for any classifications in the Category 1 awards to fall behind the National Minimum Wage for any period of time would be inconsistent with the Commission's existing Wage Fixing Principles, and repugnant to the Commission's obligation to set 'fair and reasonable conditions of employment'". Having regard to these matters, the referral to Commissioner McDonald was driven in part by the Commission's consequent lack of confidence that its statutory mandate is fulfilled simply by applying the National Minimum Wage increases to the Category 1 awards from 1 July 2024.
Thirdly, notwithstanding that the awards referred to in items 6, 11 and 13 of Schedule A are not, strictly speaking, minimum rates awards, they share some of the features of the Category 1 awards underlying the referral to Commissioner McDonald. They cover low paid workers in classifications that have fallen below the National Minimum Wage in a period in which the value of real wages has decreased. Similarly, the Commission can have no confidence that its statutory mandate is fulfilled simply by at least maintaining parity with the National Minimum Wage for those classifications and preserving former relativities. Thus, even accepting the Secretaries' acknowledgement that the former relativities between the classifications should be maintained in any final relief awarded by the Commission, it seems to me that a more comprehensive review of the rates in these awards is warranted.
Fourthly, Commissioner McDonald's review is presently not as far progressed as originally programmed because the parties have been required to file additional material and also because the parties have sought and obtained extensions to the timetable. I am aware that Unions NSW is currently required to file its material on 24 April 2025 with a further directions hearing listed for 29 April 2025. At this stage, the additional awards can be considered by the Commissioner in the context of her existing review.
The parties differed over whether the orders I made in the Joinder Decision remain operative. Given the subsequent events, it seems to me that the orders are no longer operative. Unlike the Secretaries' motion seeking an order that each of the proceedings nominated by them simply be "heard together", I ordered that the dispute proceedings be "heard together with" the PSA disputes in accordance with the PSA arbitration directions. The order was thus explicitly predicated upon the continuing existence of the PSA disputes and the PSA arbitration directions. The resolution of the PSA disputes and the vacation of the PSA arbitration directions probably had the effect of discharging the order.
In any case, the order was avowedly provisional in nature and apt to be varied in the event of changes to the assessment by Unions NSW of the substance and scope of its various cases. The orders were predicated on the assessment by Unions NSW that, at that stage and in respect of the dispute proceedings, it did not anticipate any substantial award-specific issues arising. In my opinion, the subsequent detection of the classifications with rates below the National Minimum Wage and the resulting need for a more comprehensive review of the rates in these awards amount to the emergence of substantial award-specific issues that warrant a review of my order. Accordingly, it is not necessary for me to determine the issue of whether my order remains operative. To the extent necessary, I intend to substitute revised orders for the orders I made in the Joinder Decision.
It will be apparent from the orders set out below that the awards referred to Commissioner McDonald will not necessarily form part of her existing review. Having regard to some of the submissions put by the Secretaries as to the different "paid rates" nature of these awards, the Commissioner may decide to deal with the awards outside of the extant review process. My orders are intended to afford the Commissioner the flexibility to take such a course.
I otherwise agree with the Secretaries' contention that there is no good reason to delay programming the balance of the dispute proceedings for arbitration until 4 August 2025. These dispute proceedings can be programmed forthwith, with adequate provision for further conciliation to be conducted prior to any arbitration hearing.

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties