Jones v Health Secretary in respect of the Far West Local Health District

Industrial Relations Commission (NSW)|2020-05-07

Judgment

Christopher Jones is employed in the NSW Health Service as a Senior Radiographer in the Far West Local Health District ("Far West LHD"). As a result of an incident in the workplace on 23 July 2019 Mr Jones was the subject of an investigation.
On 10 September 2019 the Broken Hill Town Employees' Union ("Union") notified the Industrial Registrar of a dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("IR Act"). The notification was allocated matter number 2019/281933.
In the notification, the Union alleged, amongst other things, that Mr Jones had been suspended since 25 July 2019 and that the process undertaken by the Far West LHD to investigate the workplace incident was "unreasonable and disproportionate". The notification did not seek any particular relief.
That matter was listed for compulsory conference before me on 18 September 2019. This was followed by a report back the next day. On both occasions Ms R Ferry, the Secretary of the Union, appeared for the notifier and Ms F Lawrance, the Director, People and Culture for the Far West LHD, appeared for the Health Secretary. The parties were unable to agree on terms to resolve the dispute. Accordingly, I made directions in anticipation of the matter proceeding to arbitration.
On or about 23 September 2019 Mr Jones was provided with a letter from Melissa Welsh, the General Manager of the Broken Hill Health Service. In the letter Ms Welsh advised Mr Jones that two allegations arising out of the incident on 23 July 2019 had been substantiated and that she had decided to impose the following "penalty": 1. Mr Jones was to receive a "first and final warning", which was constituted by the letter itself; 2. Mr Jones was directed to attend specified online training courses by 4 October 2019; 3. Mr Jones was not to be placed on the "oncall roster" until that training had been undertaken; 4. Mr Jones was directed to attend specified face-to-face training by 11 October 2019; 5. Mr Jones was required to meet with Ms Welsh on 24 September 2019 at which time he would be "counselled in regards to the finding of the investigation"; and 6. Mr Jones was directed to meet with Ms Welsh "regularly for supervision and counselling" up to and including 4 October 2019 at which time "the requirement for further counselling meetings will be assessed".

The Motion

The Motion contained the following "grounds and reasons": 1. Part 7 of Chapter 2 of the Industrial Relations Act 1996 (NSW) (IR Act) applies subject to section s.92 of the IR Act. Whilst it is understood that the Applicant, by its Rules, may be entitled to represent Christopher Philip Jones, in his capacity as a Senior Radiographer 'employed or usually employed in the County of Yanconwinna' there appears to be no registered industrial instrument that excludes Christopher Philip Jones as an otherwise eligible member of a union which has entered into an 'agreement, contract, understanding or undertaking' within the meaning of s. 92(1)(b) of the IR Act as found by the Commission in West v Director-General, NSW Ministry of Health in respect of Western Sydney Local Health District [2014] NSWIRComm 1001. 2. The Applicant commenced proceedings 2019/00281933 on behalf of Christopher Philip Jones. The Applicant and Christopher Philip Jones in these proceedings, 2019/00313319 is therefore not permitted to appeal the same decision by reason of s. 99(2)(b) of the IR Act. 3. Even if the Applicant has standing and is within jurisdiction the decision under appeal does not fall within the nature of decisions recognized [sic] by s. 97(1) of the IRC Act. 4. In all the circumstances, the application is misconceived and should be dismissed pursuant to s. 162(2)(a) and (h) of the IR Act. 5. Alternatively, the Commission should disallow the appeal pursuant to s. 100C(2) of the IR Act." (Emphasis in original)
In her submissions the Health Secretary did not pursue the argument advanced in par 2 of the Motion reproduced above. I have proceeded on the basis that that argument is not pressed.

The legislation

Chapter 2 Pt 7 of the IR Act is headed "Public sector disciplinary appeals". Relevantly for the purposes of the Motion it provides as follows: 91 Interpretation (1) In this Part: appeal means a disciplinary appeal. appealable decision means a decision of a kind referred to in section 97(1). … disciplinary appeal means an appeal under section 98. … public sector employee means a person who is: (a) employed in the Public Service, or (b) employed under Part 1 of Chapter 9 of the Health Services Act 1997 in the NSW Health Service, or … public sector employer means the following: (a) for a public sector employee of the class referred to in paragraph (a) of the definition of public sector employee - the head of the relevant Public Service agency, (b) for a public sector employee of the class referred to in paragraph (b) of that definition - the Secretary of the Ministry of Health, … 92 Application of Part (1) This Part applies to and in respect of disciplinary appeals by public sector employees other than those public sector employees or employees of a class of public sector employees who under: (a) an award or enterprise agreement made or approved by the Commission on or after the commencement of this section are not entitled to appeal to the Commission under this Part, or (b) an industrial instrument or any other agreement, contract, understanding or undertaking (whether express or implied) were not entitled to appeal to the Government and Related Employees Appeal Tribunal under the Government and Related Employees Appeal Tribunal Act 1980 as in force immediately before its repeal. (2) Notice of an industrial instrument or any other agreement, contract, understanding or undertaking referred to in subsection (1) in relation to public sector employees or employees of a class of public sector employees may be published on the website of the Department of Premier and Cabinet. (3) Any such notice is prima facie evidence that this Part does not apply to the employees to whom the notice relates. … Division 3 Disciplinary appeals 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. … 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100G Presentation of cases (1) A public sector employer must present the employer's case to the appellant at least 7 days before the hearing of a disciplinary appeal. (2) At the hearing of an appeal under this Part, the public sector employer's case is to be presented first. (3) Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.

Is Mr Jones excluded from Ch 2 Pt 7?

The Health Secretary contended that Mr Jones is excluded from Ch 2 Pt 7 by virtue of s 92(1)(b). Her submissions may be summarised as follows: 1. The Government and Related Employees Appeals Tribunal Act 1980 (NSW) ("GREAT Act") established the Government and Related Employees Appeals Tribunal ("GREAT"), which, amongst other things, heard public sector disciplinary appeals. 2. On 1 July 2010 the GREAT Act was repealed by the Industrial Relations Amendment (Public Sector Appeals) Act 2010 (NSW). That legislation also inserted a new Ch 2 Pt 7 into the IR Act. 3. As at 1 July 2010 there was in place a memorandum of understanding between the NSW Department of Health and the Health Services Union ("HSU") known as the "Memorandum of Understanding between the NSW Department of Health and the Health Services Union for the period 1 July 2008 to 30 June 2011" ("HSU Memorandum"). One of the conditions of the HSU Memorandum was the removal of public health system staff covered by the HSU from coverage of the GREAT. 4. The HSU Memorandum is an "agreement, contract, understanding or undertaking" for the purposes of s 92(1)(b). 5. As a consequence of the HSU Memorandum, Mr Jones is in a class of public sector employees which was immediately prior to 1 July 2010 not entitled to appeal to the GREAT under the GREAT Act. 6. It follows that although Mr Jones is a "public sector employee", Ch 2 Pt 7 does not apply to him by virtue of s 92(1)(b).
I digress to observe that the HSU Memorandum was not included in the Agreed Bundle. Given that the matter was to be determined on the papers, I considered it necessary to have that document before me if I was to do fairness to both parties. I therefore requested that the parties confer as to whether the HSU Memorandum could be made available to the Commission.
On 28 April 2020 the HSU Memorandum was provided to the Commission as an attachment to an email from Bartier Perry. That email stated as follows: "The parties have conferred on Commissioner Sloan's request and agree to provision of the attached document, being the Memorandum of Understanding between the NSW Department of Health and the Health Services Union for the period 1 July 2008 to 30 June 2011, to be included in the exhibit bundle. Page 7 includes a provision to "Remove public health system staff covered by the Union from coverage of the Government and Related Employees Appeal Tribunal." The Respondent, whose representative also appeared and was the solicitor on the record for the then Director-General, Department of Health, in West v Director-General, NSW Ministry of Health in respect of Western Sydney Local Health District [2014] NSWIRComm 1001 submits that this is the document that was in evidence as referred to in the decision of Commissioner Newall at [12]-[17]. There is no reference to the document not applying to any specific areas of the State. The Notifier submits that the State Award/s specifically exclude the County of Yancowinna and the MOU only applies to the Awards listed at Clause 1.1 and expired on 30 June 2011." (Emphasis in original)
I will return to the HSU Memorandum.
Mr Jones took the Commission to the industrial arrangements applying between the Ministry and the Barrier Industrial Council (with which the Union is affiliated) in respect of the Far West LHD. These included a document titled "Memorandum of Understanding between the NSW Department of Health and the Barrier Industrial Council for the period 1 July 2008 to 30 June 2011" ("BIC Memorandum").
The BIC Memorandum was executed on 30 June 2010, including by the Union. The Introduction states that it will be implemented through an agreement made between the parties in accordance with s 116A of the Health Services Act 1997 (NSW). Clause 7 provides that it will expire on 30 June 2011. Clause 4 reads as follows: "4. Understandings and Undertakings The payment of the increases outlined in Clause 3. Wages Agreement, above is dependent upon and conditional upon the agreement of the BIC and its affiliated unions to the list of agreed cost offsets/savings as set out in the following table: …"
Item 9 of the table in cl 4 states: "Remove Access to GREAT: Remove access of public health system staff from coverage of the Government and Related Employees Appeal Tribunal." (Emphasis in original)
Mr Jones' submissions may be summarised as follows: 1. The Health Secretary does not challenge that Mr Jones is a "public sector employee". As a result, Ch 2 Pt 7 is enlivened "regardless of award or agreement respondency". 2. Having accepted that Mr Jones is a public sector employee the Heath Secretary cannot "rely upon the existence of an agreement, contract, understanding or undertaking to make out a jurisdictional impediment". 3. Nothing in the BIC Memorandum suggested that it would operate beyond 30 June 2011. There is similarly no evidence that the HSU Memorandum "had any force beyond 30 June 2011". 4. There was no reference to GREAT, or to any exclusion from Ch 2 Pt 7, in the agreement between the parties that superseded the BIC Memorandum. Even when on 15 June 2019 the Health Secretary applied to the Commission for a new award, it did not seek a term pursuant to s 92(1)(a) excluding claims under Ch 2 Pt 7. 5. On the basis of Byrne v Australian National Airlines Ltd (1995) 185 CLR 410, it is "not open to the Commission to imply the continuation of the GREAT impediment".
Section 92(1)(b) was examined in detail by Newall C in West v Director-General, NSW Ministry of Health in respect of Western Sydney Local Health District [2014] NSWIRComm 1001. That case involved a decision on a notice of motion seeking summary dismissal of an appeal that had been made under Ch 2 Pt 7. The applicant on the motion contended that s 92(1)(b) applied to exclude Mr West from the jurisdiction, on the basis of a memorandum of understanding between the Department of Health and the HSU. The Health Secretary submitted that that memorandum of understanding was the HSU Memorandum. This was not challenged by Mr Jones.
It is of benefit to reproduce the reasoning of Newall C in West at some length: "22. However, the MOU in my view can properly be regarded as an 'agreement, contract, understanding or undertaking' within the meaning of s 92. These are, as the respondent correctly submits, words of the broadest coverage, and the MOU provides at very least the level of formality required for the formation of an 'agreement' or an 'understanding'. 23. I here note that it was said by the respondent that Mr West, not, on his evidence, being a member of the HSU and not having been privy to or aware of the formation of the MOU, could not be bound by it. 24. That is not in my view correct. In short, s 116A of the Health Services Act 1997 defeats that proposition. It is not necessary to repeat that statutory provision in the body of this decision. … 43. Subsection 92(1)(b) is, as noted above, an unusual provision in that it purports to recognise agreements which had the effect of contracting out of a statutory provision, including by implied agreement. 44. The respondent to the motion submits that s 92(1)(b) cannot have that effect, as parties to an employment contract simply cannot contract out of a statute that governs the terms and conditions of that employment: Director-General of Education v Suttling [1987] HCA 3; (1986) 162 CLR 427 at 437-8. The MOU, it was said, was necessarily ineffectual so far as it purported to oust the jurisdiction of GREAT over Mr West's appeal rights. 45. What, then, is to be made of the effect of subs 92(1)(b); specifically, as I say above, what is meant by the words 'not entitled to appeal' within the meaning of s 92(1)(b)? 46. It is apparent that subs 92(1)(b) actively contemplates that the removal of, or loss of entitlement to, rights to appeal to GREAT might have been effected, not by statutory or regulatory amendment as would be, consistent with the respondent's argument, required, but by agreements, understandings or undertakings, including implied ones. That is, s 92(1)(b) in its terms recognises or purports to recognise an ability in parties to contract out, including by implication, of the statutory scheme that created and set out the jurisdiction of GREAT. 47. Subsection 92(1)(b) does not of itself create that ability to contract out, it merely recognises or sanctions its existence. 48. On the respondent's submission, that cannot be done. Indeed, on the premise necessarily underpinning the respondent's submissions, the loss of the ability to appeal to GREAT could not have been effected by an industrial agreement, let alone an 'agreement' or 'understanding'. 49. However, if the view is adopted that parties simply could not have formed an agreement or understanding that denied certain employees access to GREAT, that is, an agreement or understanding that certain employees 'were not entitled to appeal' to GREAT, then subs 92(1)(b) not only has no work to do, it is in fact a nonsense; that is, it purports, wholly invalidly, to proceed on the basis of a situation that could never be at law. … 56. In my view subs 92(1)(b) can be read to be effective. It can be read, without a strained or unnatural meaning, to have the effect that the Parliament evidently intended. 57. That can be done, in my view, by reading the words of subs 92(1)(b) as saying: ...a class of public sector employees who under: (b) an industrial instrument or any other agreement, contract, understanding or undertaking (whether express or implied) had agreed that they were not entitled to appeal to the Government and Related Employees Tribunal... the underlined words showing the manner in which the subsection is to be read. … 59. As the applicant submitted, the purpose of s 92(1)(b) is apparent from the text of the provision itself. The words of the provision convey a parliamentary intention to give statutory imprimatur to earlier agreements that access to GREAT would be limited. … 63. Demonstrably, the MOU recorded an agreement by the parties that the right of appeal to GREAT would be taken away for certain employees. That is abundantly clear from the extract set out at paragraphs 14 and 15 above. A legislative process was indeed considered to effect the removal of the right, but the agreement that the removal would occur is clear. While consideration of such an agreement, as opposed to a binding contract, is not required, (the more so as under subs 92(1)(b) an implied agreement is contemplated as being effective), I observe that salary and salary-related benefits were in fact paid in consideration of the agreement. 64. On the reading of subs 92(1)(b) that I regard as necessary, the fact that there was not a subsequent legislative removal of the right to appeal, as argued by the respondent, is not to the point. The agreement that it would occur suffices. 65. The MOU is an agreement or understanding under which employees 'were not entitled' to appeal to GREAT, within the meaning of s 92(1)(b), as that subsection is properly understood. 66. That being so, subs 92(1)(b) has the effect that Mr West is a public sector employee of a class to which Part 7 of Chapter 2 of the Act does not apply. 67. Accordingly, Mr West had no capacity to bring an appeal pursuant to s 98 of the Act. His appeal must be dismissed for want of jurisdiction." (Emphasis in original)
I agree with the construction of s 92(1)(b) adopted by Newall C for the reasons set out in his decision, including those reproduced above.
To paraphrase the position advanced by the Health Secretary, Mr Jones falls under the auspices of the HSU Memorandum by virtue of two factors: firstly, being covered by the Health Employees Medical Radiation Scientists (State) Award 2019 ("Award") (and presumably its earlier iterations), and, secondly, his eligibility to be a member of the HSU. The first premise is false.
Clause 7(iii) of the Award provides as follows: "This Award shall apply to persons employed in classifications contained herein employed in the NSW Health Service under s 115(1) of the Health Services Act 1997, or their successors, assignees or transmittees, excluding the County of Yancowinna."
It is not in dispute that Mr Jones is employed in the County of Yancowinna. As a result he is excluded from the coverage of the Award. Each earlier iteration of the Award that I was able to locate contained an exclusion to the same effect.
Clause 1 of the HSU Memorandum is in these terms: "1. Introduction 1.1 This Memorandum of Understanding between the NSW Department of Health and the Health Services Union sets out the understanding and agreement of the parties in relation to wages and conditions outcomes for employees covered by the following Awards for the period 1 July 2008 to 30 June 2011: • Health and Community Employees Psychologists (State) Award • Health Employees Medical Radiation Scientists (State) Award • Health Employees Pharmacists (State) Award • Health Employees (State) Award • Health Employees Technical (State) Award • Health Managers (State) Award • Health Professional and Medical Salaries (State) Award, excluding Career Medical Officers • NSW Health Service Health Professionals (State) Award • Public Hospital Residential Services Assistants (State) Award • Royal Rehabilitation Service - Weemala Unit - Residential Care Staff (State) Award" (Emphasis in italics added)
There is no suggestion that Mr Jones could be covered by any of the awards in cl 1 of the HSU Memorandum other than the Health Employees Medical Radiation Scientists (State) Award. Further, it was Mr Jones' uncontested submission - contained in the email from Bartier Perry referred to at [23] above - that all of the awards referred to in cl 1 exclude the County of Yancowinna.
If Mr Jones is not "covered by" one of the awards in cl 1, the HSU Memorandum cannot on its terms apply to him. The Health Secretary's submission in the email of 28 April 2020 referred to at [23] above that there "is no reference to the document not applying to any specific areas of the State" do not grasp the full effect of its terms. The combined operation of cl 1 and the terms of the awards to which it refers is to effect a geographical exclusion of the County of Yancowinna that is otherwise not express in the document.
I do not consider that the HSU Memorandum has any application to Mr Jones.
However, the matter does not end there. Mr Jones claims to have been covered by the BIC Memorandum. In so far as appeals to the GREAT were concerned, its effect was the same as the HSU Memorandum. On the same basis that Newall C found in West that the HSU Memorandum was an agreement or understanding under which employees "were not entitled" to appeal to the GREAT, within the meaning of s 92(1)(b), the BIC Memorandum had the same result.
Mr Jones contended that neither the BIC Memorandum nor the HSU Memorandum (assuming it applied) is of any relevance as there is nothing to suggest that they continued to have operation beyond 30 June 2011. Even were I to accept that the removal of access to the GREAT was for the closed term of the relevant agreement, which I would have difficulty doing, it is beside the point. All that s 92(1)(b) requires is that the exclusion operated immediately prior to the repeal of the GREAT Act on 1 July 2010. Under the terms of the BIC Memorandum such exclusion applied to Mr Jones as at that date.
It follows that Mr Jones is a public sector employee excluded from Ch 2 Pt 7 by s 92(1)(b). To use the language in West, Mr Jones "is a public sector employee of a class to which Part 7 of Chapter 2 of the Act does not apply". He had no capacity to bring an appeal pursuant to s 98.

Is there an appealable decision?

While that finding is sufficient to dispose of the Motion, I would add that the Motion would succeed on the further ground, namely that the Notice of Appeal does not disclose an appealable decision. I will set out my reasons for this relatively briefly, recognising that they are necessarily obiter.
The thrust of Mr Jones' submissions was that as the actions taken against him, both before and as a consequence of the letter of 23 September 2019, were disciplinary in nature, an appeal against those actions must necessarily be a "public sector disciplinary appeal" within the Commission's jurisdiction under Ch 2 Pt 7.
In Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 Kite CC stated as follows: "70. The two subject matters in s 97(1) are the public sector employee and the decisions listed in the section. Decisions which may be incidental or in some way related to a decision listed in the section are not themselves appealable decisions. Only the decisions listed in s 97(1)(a) may be appealed. So much is clear from the opening words to s 97(1) which limit the operation of the section to the specific decisions which follow. In short, to have a right of appeal a public sector employee must identify a decision, listed in s 97(1), made by his or her employer which relates to [him or] her as an employee."
Having regard to the definition of "appealable decision" in s 91(1) and the terms of s 98, the former Chief Commissioner's statement as to the operation of the Act is unquestionably correct.
The Health Secretary accepted that it had taken disciplinary action against Mr Jones. She submitted, however, that the letter of 23 September 2019 was confined to issuing Mr Jones with a first and final written warning and directing him to undertake a number of online training sessions. I do not read the letter as confining the disciplinary action to those two outcomes. There is nothing in the terms of the letter to suggest that the "penalty" was to be so limited, and did not comprehend all of the outcomes set out at [5] above.
That said, Mr Jones still faces the challenge of demonstrating that any of those outcomes fall within s 97(1). With one possible exception, they clearly do not.
That possible exception is the decision by Ms Welsh to direct that Mr Jones not be placed on the "oncall roster" until he had completed the online training. In his submissions Mr Jones described this as having the effect of imposing a fine or financial penalty on him.
In Francois Kite CC observed as follows: "59. Bearing in mind Ch 2, Pt 7 applies to a variety of employers who have different disciplinary powers it is understandable that the scope of s 97(1) may be broader or narrower than the scope of disciplinary actions available to a particular employer."
The reference in s 97(1)(c) to a decision to "impose a fine or forfeit pay" has to be seen in this context. It relates to a decision by a particular employer to impose such an outcome under the disciplinary powers available to it. Some government sector legislation confers on the relevant employer the power to impose a fine as a disciplinary action. [1] The decision to deny Mr Jones access to the oncall roster is not the imposition of a fine or the forfeiture of pay within the meaning of s 97(1).
While the argument was not raised by Mr Jones, I have also considered whether the decision regarding the oncall roster might fall within s 97(1)(b) as being one to "reduce the…pay of the employee". I have come to the view that it does not.
In Rogan v Director-General of Technical and Further Education (1987) 10 NSWLR 348 the Court had to consider whether a decision to withdraw an allowance from an employee was a decision to reduce his pay within the meaning of s 23(1)(b) of the GREAT Act, which is in closely similar terms to s 97(1)(b) of the IR Act. McHugh JA, with whom Kirby P and Samuels JA agreed, stated (at 350) that the "pay of the employee" covers "every payment made to the employee in his character as an employee in respect of the performance of the duties of his office or position". He went on to state as follows (also at 350): "A decision to reduce pay is a compound conception. In its context in s 23, it means a decision to take away from an employee a payment which he had a legal right or entitlement to receive.… But, in my opinion, a case is not within that paragraph when no more has occurred than that the employee is no longer eligible to obtain a payment which he earlier enjoyed. If, as Samuels JA pointed out during the argument, an employee was paid an allowance for doing work of a difficult or hazardous nature but was no longer pay the allowance when he ceased doing that class of work, the case is not within s 23(1)(b). His pay has not been reduced within the meaning of the paragraph any more than the case of an employee who is no longer given overtime."
There is no evidence before the Commission that Mr Jones had a legal right or entitlement to be on the oncall roster. Indeed, as I have stated, he made no submissions at all to the effect that s 97(1)(b) applied. I nevertheless find that it has no such application.
Mr Jones contended that the Health Secretary's conduct towards him, including the letter of 23 September 2019, "convey[ed] matters of discipline". These included: 1. suspending him from 25 July 2019 until 25 September 2019; 2. excluding him from the "on call roster" during the suspension period and after his return to at least 4 October 2019 "with the effect of imposing a fine or financial penalty" on him; 3. placing him on the NSW Health Service Check Register "with the object of detriment to [his] present and future employment"; 4. giving him a final warning on which the Health Secretary intends to rely in the future; and 5. requiring him to undertake "demeaning 'training' and sanctions designed to diminish [his] professional and community standing, in effect imposing a demotion in the eyes of his peers".
Mr Jones did not, however, directly address the question as to how this disciplinary action fell within s 97(1). I have already dealt with the oncall roster. Neither the placement of Mr Jones on the Service Check Register or providing him with a warning falls within s 97(1). This much is clear from the language of the provision.
Mr Jones' suspension also does not fall within s 97(1). Section 97(1)(e) makes it clear that the decision to suspend the employee must be "as a punishment" following an adverse finding against them. It does not encompass periods of suspension whilst allegations of misconduct are investigated and prior to disciplinary action being taken.
Mr Jones' contention that his requirement to undergo training was effectively a demotion fails for the same reason as discussed in respect of fines at [50]. In any event, I do not consider that a requirement to undergo training could properly be regarded as a demotion.
For these reasons, I find that Mr Jones was not the subject of a decision of a kind referred to in s 97(1). It follows that there is no appealable decision on which an application under s 98 could be based.

Is the Health Secretary precluded from challenging jurisdiction?

Mr Jones submitted that the Health Secretary is precluded from challenging the Commission's jurisdiction on two grounds.

Breach of Practice Note 23A

Firstly, Mr Jones submitted that the Health Secretary had "wilfully breached" the Commission's Practice Note 23A. In so far as it is relevant to Mr Jones' submissions, that Practice Note provides as follows: "1. The Practice Note applies to proceedings before the Commission under Part 7, Chapter 2 of the Industrial Relations Act 1996 ("the Act"). … 7. Preliminary Issues 7.1. If a preliminary issue, for example, a jurisdictional challenge, is raised at or before the conciliation conference, the member allocated to undertake the conciliation of the matter will determine whether the matter will be heard as a threshold issue or be dealt with after conciliation. If the member determines that the issue should be heard before conciliation then the member will make appropriate directions for the hearing of the issue and determine the question or issue in advance of any conciliation, if required. In cases where the member conducts a conciliation before the hearing of the preliminary issue, and the conciliation fails, directions will be made by that member for the hearing of the preliminary issue. … 9. Usual Directions For the purpose of this Practice Note "usual directions" means directions in the following terms or to the following effect: … 9.3. The respondent must file and serve any material relevant to the employer's case upon which they will seek to rely within 21 days. …The respondent's case must include all signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness upon which they rely. … 9.7. Without leave of the Commission, written statements and other documentation filed and served later than the time specified by the Commission in its directions may not be relied upon by the party. … 11. Compliance with Directions Any directions made under paragraphs 8, 9 and 10 of this Practice Note must be complied with and will apply unless varied by the Commission. Any application to vary directions after the conciliation conference must be made as soon as possible, in writing and contain full supporting grounds (unless made during the course of the hearing of the matter). …
Mr Jones submitted as follows: "A. Practice Direction No.23A made Pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005 at 7 makes provision for a preliminary issue, for example, a jurisdictional challenge, raised on or before the conciliation conference to be heard as a threshold matter or be dealt with after conciliation. B. Conciliation was conducted, was unsuccessful and no jurisdictional challenge had been raised or pursued in accordance with PD No. 23A. Orders were then appropriately made by the Commission in accordance with Paragraph 9 of the Practice Direction, in particular 9.3, with which the Respondent did not comply. Nor did the Respondent, who is represented by Solicitors, comply with Paragraph 11 of the Practice Direction. No application in compliance with PD 23A paragraph 11 has been made, rather the Solicitors for the Respondent filed its Application to challenge jurisdiction only upon the day it was required to comply with the Directions under Paragraph 9.3 of PD No. 23A. C. No application to vary the directions has ever been made and is now out of time. The raising of a preliminary issue of jurisdiction is similarly out of time and the Respondent has chosen to breach Paragraphs 7, 9.3 and 11 of PD 23A." (Emphasis in original)
I do not consider that the Health Secretary failed to comply with Practice Note 23A. As is clear from the chronology outlined above, the possibility of a jurisdictional challenge was raised on behalf of the Health Secretary on 15 November 2019. Directions were made on that occasion in that knowledge. Mr Jones is correct that the Health Secretary did not seek a variation to the directions prior to filing the Motion, but such a variation was largely inevitable once the Motion had been filed. This was formalised on 13 January 2020 through the Commission vacating the directions that had been made on 15 November 2019.
In any event, Practice Note 23A does not have the effect for which Mr Jones contended. The Practice Note does not on its terms require that any jurisdictional issues be raised at conciliation. Paragraph 7.1 of the Practice Note does no more than set out the process to be followed if a preliminary issue such as a jurisdictional challenge is raised at or before the conciliation conference. The Practice Note does not, and more importantly could not, seek to preclude a jurisdictional challenge being made at a later time.
The Commission derives its jurisdiction from legislation. In a particular matter it will have jurisdiction, or it will not. Even were the Practice Note to seek to place limitations on the time and circumstances in which the Commission's jurisdiction may be challenged, as Mr Jones submitted, the effect would be that if a party failed to raise a challenge within those limitations the Commission might be capable of exercising a jurisdiction that is not otherwise conferred on it. Such an outcome is patently impermissible.

Estoppel

The second ground on which Mr Jones argued that the jurisdictional challenge cannot be brought arises from the first. He submitted that as the Health Secretary did not pursue a jurisdictional challenge at the conciliation on 13 November 2019 or at the directions hearing on 15 November 2019, she was thereafter estopped from doing so. Mr Jones argued that the circumstances gave rise to an "issue estoppel".
I start by observing that on 15 November 2020 the Health Secretary did in fact put Mr Jones and the Commission on notice that jurisdiction was in issue.
Next, Mr Jones' characterisation of the estoppel as being "issue estoppel" is misguided. It is sufficient to refer to, without reproducing, the oft-cited decision of Dixon J in Blair v Curran (1939) 62 CLR 464 in which the concept of issue estoppel was described (at 531-532). It is not apt to the circumstances this case.
In any event, estoppel cannot arise on a jurisdictional question. As explained at [64] above, the Commission has jurisdiction, or it does not. The effect of Mr Jones' estoppel argument is that a failure by a party to challenge the Commission's powers in a timely fashion precludes the Commission's jurisdiction from being challenged. Again, this has the potential to create a situation where the Commission would become able to exercise power with which it is not otherwise endowed.

Is the Motion premature?

Mr Jones submitted that as s 100G of the IR Act requires the Health Secretary to present its case first, the question as to whether there was an appealable decision is "a matter for the substantive hearing and determination by the Commission."
Section 100G is concerned with the presentation of cases on public sector disciplinary appeals. The Health Secretary contends that the Commission has no jurisdiction to hear the appeal. If the Commission has no jurisdiction to hear the matter, s 100G has no relevance.

Conclusions

I find that Mr Jones is a public sector employee excluded from Ch 2 Pt 7 by s 92(1)(b). He had no capacity to bring an appeal pursuant to s 98.
I find further that even were the first finding to be mistaken, there was no appealable decision made by the Health Secretary in respect of Mr Jones within the meaning of Ch 2 Pt 7. It follows that there is no basis on which he could bring an appeal under s 98.
I find for the Health Secretary in respect of the Motion. The appropriate order is that the appeal be dismissed. Damian Sloan Commissioner

Endnote

By way of example, see Government Sector Employment Act 2013 (NSW) s 69(4)(c); Teaching Service Act 1980 (NSW) s 93B(1)(d); Transport Administration (Staff) Regulation 2013 (NSW) cl 20(1)(b) 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: 07 May 2020

Government and Related Employees Appeals Tribunal Act 1980(NSW)

Industrial Relations Amendment (Public Sector Appeals) Act 2010(NSW)

Transport Administration (Staff) Regulation 2013(NSW)cl 20(1)(b)

At a glance

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Decision date

Source

Judgment (11 paragraphs)

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Legislation Cited (7)

Cases Cited (7)