Notification under Section 130 by PSA&POA Union of NSW of a dispute with Dept of Environment & Climate Change re implementation of proposed new structure - CMA [2007] NSWIRComm 1096 - NSWIRComm 2007 case summary

Industrial Relations Commission (NSW)|2007-07-01

CITATION: Notification under Section 130 by PSA&POA Union of NSW of a dispute with Dept of Environment & Climate Change re implementation of proposed new structure - CMA [2007] NSWIRComm 1096

Interim injunctive orders sought to prevent recruitment action for vacant newly created position of Catchment Co-ordinator, Education and Extension, following July restructure. Argued that vacant position had taken over major responsibilities of Association member's position held since September, 2004 and known in new structure since July, 2007, as Catchment Co-ordinator, Soils and Land Use. Orders eventually to be sought under S.175 of IR Act through S136(1)(d) provided for Association member, Mr W Brown, to be recognised as a displaced officer for the purposes of the Premiers Memo No. 96/5 Managing Displaced Employees and then be entitled to be considered before any other applicants for the newly created position of Catchment Co-ordinator, Education and Extension. Argued by Association that Mr Brown's position had been effectively "deleted" by shift of responsibilities and persons supervised in terms of Premiers Memo. Argued by both Counsel in respect of Castlemaine Tooheys tests, as interpreted by subsequent Commission decisions, application of interim orders in context of industrial disputation, emphasising need for serious question to be tried and balance of convenience. Argued by both Counsel re effect of S22 of Public service Employment Management Act, with Association arguing that "placement" of member Mr Brown in new position was not an "appointment or failure to appoint" disallowed by S22 as such would be in accordance with Premiers Memo for Displaced Employees. Respondent argued attempt to elevate policy document over statutory limitations. Since the Commission was not "authorised" in terms of S.136(1)(d) to make orders (2) and (3) sought in arbitration - predicated upon Mr Brown being a "displaced employee" whose position was "deleted" which was an impermissible attempt to attack when the appointment process for new position. Dispute in terms of S136(1)(d) was regarding "the appointment or failure to appoint" in terms of S22 of PSEM Act. CATCHWORDS: Argued by respondent that Mr Brown's substantive position was a generic one of Catchment Co-ordinator with key performance criteria in common with other Catchment Co-ordinator positions - including the newly structured position sought by Mr Brown. He was not "displaced" by virtue of changes in duties and supervisory responsibilities and neither has his substantive position been "deleted" as per the definitions under the Premiers Memo 96/5.

Held: Arguable case whether significant shift on duties of Education and Property Management Systems might have resulted in effective deletion of former position and is a serious question to be tried in terms of the Castlemaine Tooheys test as qualified by Sydney Water case.

Held: That if the applicant's position, as developed since October, 2004 was deleted for the purpose of Premiers policy on Managing Displaced Employees, draft substantive order No. 3 seeking that Mr Brown be "considered before other applicants for the newly created position" might not contravene S.22 of the PSEM Act as it would only provide for him to be "considered" not necessarily appointed. Therefore Commission could have jurisdictional basis for S.136(1)(d) interim orders and for S.175 substantive order. Balance of convenience in favour of delay.

Interim Order granted in terms sought by Association delaying further recruitment action pending arbitration.

LEGISLATION CITED: Industrial Relations Act 1996

Sydney Water Corporation Vs ASU (2005) 146 IR 388 Hill Vs The Department of Education (1998) 85 IR 201 @ 209 Castlemaine Tooheys Vs South Australia (1986) CLR 148 @ 153 Crown Employees Land Officer (Department of Lands) Award (1992) 40 IR 120 at 134 CASES CITED: Government Cleaning Services (Privatisation) Award (1993) 54 IR 112 at 123 Public Employment Industrial Relations Authority Vs HREA (NSW) (1994) 54 IR 162 at 182-183 State of NSW Vs Banas (2004) 137 IR 63 Police Association Vs NSW Police (No. 5) (2005) NSW IR Comm 243 Public Service Board (NSW) Vs Public Service Association (NSW) re Steel Full Bench (1987) 17 IR @ 286

The Association was represented by Mr M Gibian of Counsel, briefed by Ms A McRobert of W McNally Jones Staff, Solicitors LEGAL REPRESENTATIVES: The Department was represented by Mr P Ginters of Counsel, briefed by a senior officer of the Department, Ms E Krynda, Manager Employee Relations

DECISION: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Department of Environment & Climate Change re implementation of proposed new structure - CMA

1 In this matter the union has sought interim relief by way of notification of an industrial dispute under Section 130 of the Industrial Relations Act, which would have the effect of providing injunctive orders. 2 The interim order sought by the Association is to preserve the status quo as follows: 1. That the Border Rivers/Gwydir Catchment Management Authority not proceed with recruitment action in relation to the position of Catchment Co-ordinator, Education and Extension, pending arbitration of these proceedings. 3 The union seeks in the longer term a determination under Section 175 of the Industrial Relations Act in accordance with the following terms: Exhibit 5 refers; 1. That Mr Warwick Browne's position of Catchment Co-ordinator ceased to exist as a result of the restructure implemented by the Border Rivers/Gwydir Catchment Management Authority on or around 27 July 2007; 2. That, as a result of the restructure, Mr Warwick Browne is a displaced employee for the purposes of Premier's Memorandum No 96-5, Managing Displaced Employees; 3. That Mr Warwick Browne is entitled to be considered before any other applicants for the newly created position of Catchment Co-ordinator, Education and Extension located at Armidale; 4. Such further and other orders as this Honourable Commission deems appropriate.

4 The hearing of the interim application took place on 14th December, 2007. The Association was represented by Mr M Gibian of Counsel, briefed by Ms A McRoberts of W McNally Jones Staff, Solicitors. 5 The respondent, the Department of Environment & Climate Change was represented by Mr P Ginters of Counsel, briefed by a senior officer of the Department, Ms E Krynda, Manager Employee Relations. 6 During proceedings the following exhibits were tendered and marked: Exhibit 1 - Written Submissions by Mr Gibian Exhibit 2 - Premiers' Memorandum No. 96/5 "Managing Displaced Employees". Exhibit 3 - Affidavit of Urgency filed by Ms A McRobert of McNally Jones Staff Solicitors. Exhibit 4 - Affidavit filed by Mr A L Brown, the union's member for whom the proceedings have been brought. Exhibit 5 - Application for Determination under Section 175 (as outlined above). Exhibit 6 - Affidavit of Ms E Krynda with attachments A-E to do with Staff Structures prior and following re-organisation, profile of Catchment Co-ordinator Position, Job Details for new vacant position of Catchment Co-ordinator; A work plan prepared by Mr Brown for the previous financial year. Exhibit 7 - Written Submissions by Mr P Ginters of Counsel for the respondent.

SUBMISSIONS BY UNION'S COUNSEL, MR GIBIAN · Background to Mr Brown's alleged displacement as a Catchment Co-ordinator began by reference to his affidavit Exhibit 4, that he lodged an expression of interest in a position of Catchment Co-ordinator shown, at Attachment C, as relevant to three positions at the time (Northern Rivers Border Rivers/Gwydir and Namoi) which he described at paragraph 5 of Exhibit 4 as generic position descriptions. · Annexure B to Mr Brown's affidavit was a staff structure showing him as being responsible for managing programs such as property planning, (FMS Program and Education and Extension Programs). · Annexure C was the Catchment Co-ordinator, Grade 9/10 position attached to the three regions, being the expression of interest forwarded by him. He said in his affidavit that he was required to develop a work plan for co-ordinators and managers and importantly, that he was allocated Education and Awareness and Property Planning as well as Monitoring Salinity. · Annexure D shows him as being Team Leader from the 3rd July, 2005 and a significant part of his work was property planning through the FMS (Farm Management Systems) Project. · Annexure E was the draft project specification showing a title of Property Management Planning for accreditation and sustainability (FMS). · Annexure F is an extract from the Border Rivers/Gwydir Catchment Management Annual Report of 2006 re regarding the FMS Program. · Annexure G was said by him to not reflect the finalised work plan reflecting work functions and role, with other roles removed. This was the position which has taken over functions described at paragraph 13 of Exhibit 5 such as the FMS Project, the Education & ESS Management, OGW Data Management, DST Project Input and Monitoring/Reference Farms/NRC . · Annexure H was a copy of a strategic plan prepared by the applicant listing his contribution to the FMS Project as being .45 of a full time role. · In July during 2007 he was informed by the Farm Management Systems and Associated Education Extension Area responsibilities were being removed from his position. · Annexure I were copies of a new structure before and after restructure. 7 Four positions responsible to Mr Brown were transferred from his supervision and reporting to a new position of "Catchment Co-ordinator, Education and Extension".

8 Mr Brown finished his affidavit with the claim that the position that he has now been asked to perform is not the position that he was appointed to following his transfer in 2004 from the Department of Planning and Natural Resources. 9 Mr Gibian relied upon the Association's member, Mr Warwick Brown, having undergone the remedy of significant duties, now effectively being a displaced employee in terms of the Premiers' Memorandum headed Managing Displaced Employees and that therefore, in the words of the policy directive, he is entitled to be considered before other applicants to the newly created position of Catchment Co-ordinator, Education and Extension. 10 Mr Gibian advised the Commission that applications for the new position closed the previous Friday the 7th December, 2007 and that Mr Brown was a candidate. 11 He referred to several authorities supporting the proposition that the Commission has power to make interim orders preserving the status quo or the subject matter of a dispute pending arbitration. 12 In this connection, he laid particular emphasis upon the Full Bench decision in Sydney Water Corporation Vs ASU (2005) 146 IR 388. Also emphasised by him was the decision of Schmidt J in Hill Vs The Department of Education (1998) 85 IR 201 @ 209. That decision, he reminded the Commission followed the approach of Mason ACJ in Castlemaine Tooheys Vs South Australia (1986) 161 CLR 148 @ 153, which included the important criteria for the granting of interim orders such as those now sought by Mr Gibian on behalf of his client, which reads as follows:

"In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be adequate remedy; and (3) that the balance of convenience favours the granting of an injunction." 13 Mr Gibian pointed out that the principles in Castlemaine Tooheys provide a general guidance to the exercise of the Commission's power to make interim orders pending arbitration, but that it should not be inflexibly applied in dealing with industrial disputes. 14 In support of that proposition, he went on to provide an extended quotation from the decision of the Full Bench in the Sydney Water case, which alluded to the public interest to be taken account of in such interim applications in the way of the benefits in managing an industrial dispute with minimum dispute and disputation. That decision also stipulated that the Castlemaine Tooheys test must be understood in the context of litigation between two individual parties to a private dispute, albeit with public law elements, seeking a judicial resolution. In such a context, strict evaluation of the first test in terms of the evidentiary burdens of court proceedings assist the overall integrity of the proceedings by placing a check upon dubious or frivolous claims, claims which are unlikely to succeed and claims which should be concluded at an early stage. But technical evidentiary questions such as whether or not "there is a prima facie case" do not sit as neatly in the context of the arbitration of an industrial dispute by the Commission….. In our view, there is no doubt that the essence of the first test (which in this context should be posed in terms of whether there is a serious dispute or issue to be resolved between the parties) is satisfied in this case. 15 Mr Gibian suggested then that the Act emphasises the broad powers to be exercised in a manner directed at the merits of the industrial dispute itself and the steps necessary to resolve it. This will, he said, involve not only the private interests of the parties, but the public interests in the resolution of industrial disputes in a fair and just manner and with minimum disputation. 16 Mr Gibian submitted that there was a serious dispute or issue as to whether Mr Brown is a "displaced employee for the purposes of Managing Displaced Employees Policy", which states: A displaced employee is a person whose position/job no longer exists due to a restructure or other administrative decision, including where the position/job is moved to a substantially different work location. 17 He believed that this accords with the concept of an employee becoming redundant as a result of a reallocation of duties. 18 He believed that there was sufficient information before the Commission to demonstrate a serious question to be tried as to whether or not the functions, duties and responsibilities constituting Mr Brown's position continues to exist within the CMA. 19 To this end he pointed out that Mr Brown was employed with the respondent since its creation in September, 2004 in the position of Catchment Co-ordinator, with a significant proportion of his duties involving education and extension programs and property planning through farm management systems program. Upon his transfer to the Department of Environment and Climate Change DECC (or it predecessor) in 2004 these were his significant responsibilities. 20 A new position under the restructure entitled Catchment Co-ordinator, Education and Extension was implemented from 27th July, 2007 and has subsumed Mr Brown's responsibility for education programs within the CMA and the Farm Management Systems Program. He was asked to return the original of his files. 21 In addition, three employees previously responsible to him are to report to the new position. 22 If Mr Brown's position no longer exists as a collection of functions, duties and responsibilities, for which he applied in the expression of interest and was appointed in 2004, he is entitled to be treated as a displaced employee, said Mr Gibian. 23 Turning to the judicial issue before the Commission in relation to the operation of Section 22 of the Public Sector Employment Management Act Mr Gibian set out those provisions: 22. Legal proceedings not to be brought in respect of appointments etc .

(1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure to appoint, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980 24 Any objection on jurisdictional grounds based on Section 22 of the PSEM Act misconceives the nature of the dispute and relief sought which begins with recognition that Mr Brown's position in effect no longer exists as a consequence of the restructure and is entitled to be treated as "a displaced employee". It cannot be said that the Commission lacks jurisdiction to make orders or awards touching upon the treatment of employees so "displaced". He supported that argument by reference to relevant caselaw including that of the State of New South Wales Vs Banas (2004) 137 IR 63 where the Commission made orders under Section 106 of the Act as to the application of the Management Displaced Employees Policy and found unfairness in its application towards a particular employee. 25 Mr Gibian also referred to two other case authorities to distinguish instances where Section 22 of the PSEM Act was no impediment to the Commission dealing with matters such as where a Police Officer who resigned was allowed to have his case arbitrated by the Commission in Police Association Vs NSW Police (No. 5) before Boland J in Matter No. [2005] NSW IR Comm 243. The other case of Public Service Board (NSW) Vs Public Service Association (NSW); Re Steele, Full Bench [1987] 17 IR @ 286, concerned the transfer of an officer to another location, where there Honours distinguished the transfer from "the appointment or failure to appoint" concept. 26 Mr Gibian claimed that, if Mr Brown's position no longer exists as a collection functions, duties and responsibilities, he is entitled to be treated as a displaced employee for the purposes of the managing displaced employees policy. 27 There is sufficient likelihood that the notifier will be successful in that case to justify the granting of the interim relief. 28 The respondent's jurisdictional objection under Section 22 of the Public Sector Employment Management (PSEM) Act misconceives the nature of the dispute and the relief sought. It cannot be suggested that the Commission lacks jurisdiction to make orders or awards touching upon the treatment of employees who are displaced employees or excess officers in the Public Service. In this regard, Mr Gibian referred to the following cases: Re Crown Employees Land Officer (Department of Lands) Award (1992) 40 IR 120 at 134; Re Government Cleaning Services (Privatisation) Award (1993) 54 IR 112 at 123 and Public Employment Industrial Relations Authority v HREA (NSW) (1994) 54 IR 162 at 182-183. 29 Mr Brown will have been deprived of the operation of the Managing Displaced Employees Policy since July 2007, when the re-organisation took place and therefore has not had the advantage of being notified of the existence of available positions, and being considered for these under the Premier's Memorandum. It is appropriate that the interim orders be made to protect his entitlements under that policy. 30 Management of displaced employees through re-deployment under the policy involves "placing" an employee in a position, is not an appointment to a position through the usual processes of merit selection. 31 Mr Gibian submitted that an order designed to preserve the operation of that re-deployment process is not an order relating to the appointment or failure to appoint in the sense of Section 22 of the PSEM Act. 32 In respect of that other test within the Castlemaine Tooheys criteria, of the Balance Of Convenience, Mr Gibian first claimed that if relief is not granted to Mr Brown he may be denied one of the benefits under the Managing Displaced Employees and the status quo existing at the time of the restructure will be destroyed and Mr Brown may suffer irreparable prejudice. 33 If the recruitment action for the new position of Catchment Co-ordinator, Education and Extension is proceeded with, this may cause uncertainty and disruption for other employees. 34 No evidence of any significant disruption to the operations of the CMA has been advanced if the recruitment does not occur.

Submissions of the respondent 35 Mr Ginters began his submissions by reference to the Australian Services Union Vs Sydney Water Full Bench decision relied upon by Mr Gibian, acknowledging that it provided a useful guidance for the exercise of power to grant interim orders under the Castlemaine Tooheys tests that it would be wrong to apply the decision strictly and inflexibly, having regard to the dynamic nature of industrial dispute proceedings. 36 Mr Ginters suggested that the Commission should bear in mind not only the interim relief sought, but the final relief sought in these proceedings. 37 Mr Gibian had concentrated upon the second order which would eventually be sought under Section 175 of the Industrial Relations Act (Exhibit 5 refers), claiming Mr Brown as a displaced employee for the purposes of the Premier's Memorandum No. 96/5. He has not drawn particular attention to the third substantive order which would be sought, for Mr Brown to be entitled to be considered before any other applicants for the newly created position of Catchment Co-ordinator, Education and Extension. Order 3 derives from Order 2 (Mr Brown being a "Displaced Employee) being sought, but it is Order 3 which fails at the outset because it impermissibly seeks to cut across what Section 22 of the PSEM Act prohibits in express and unequivocal terms. (i.e. as to the appointment or failure to appoint). 38 The Commission's jurisdiction under Section 175 to make determinations is premised on there being a need to make a determination. The language of Section 175 shows that as a matter of statutory construction and logic that the Commission cannot make a determination in a vacuum and needs to have a live judiciable matter to determine. Hence the words "in connection with a matter before it". 39 Similarly, in respect to interim relief under Section 136(1)(b), the Commission's power only arises if it is "authorised" to make an order. Again, it follows that there needs to be a jurisdictional foundation to make an interim order. 40 Bearing the above in mind, it can be readily seen that the proper characterisation of the orders sought is no more than an impermissible attempt to attack the appointment process for the vacant position of Catchment Co-ordinator, Education and Extension. 41 Again as to Orders 2 and 3 eventually sought under Section 175, Order 3 follows axiomatically from Order 2 (that Mr Brown is a displaced employee in terms of the Premier's Circular) and (Order 3) - to be considered before any other applicants. The dispute underlying those orders are nothing other than a dispute regarding "the appointment or failure to appoint", in terms of Section 22 of the PSEM. 42 The situation crystallises from the situation that Mr Brown held the position of a Catchment Co-ordinator, Soils and Land Use, prior to the re-organisation and that following the restructure there is no doubt he continues to occupy a substantive position of Catchment Co-ordinator in the Gwydir Rivers Catchment Management Authority (GRCMA). This can be seen from the staff structure attached to Ms Krynda's affidavit Exhibit 6 Annexures A and B. 43 The fact that some of the functions previously performed by him are in the restructure as the vacant position of Catchment Co-ordinator, Education and Extension, which he wishes to keep, boils down to the fact that Mr Brown desires to be directly appointed to the vacant position which has those farm management system employees in its reporting structure, previously under his auspices. 44 The Association cannot escape from the fact that Mr Brown continues to hold a substantive position within the Department of Environment & Climate Change (DECC). 45 His functions and duties are within the positions description for a Catchment Co-ordinator and when it comes to assess the issue of "serious questions to be tried" and "the balance of convenience" tests, the Association cannot get where it needs to get in respect of the Displaced Employees Policy. One cannot see the conclusion involving a serious question. The order seeking "an entitlement to be considered before other applicants" (Order 3) goes directly to being a matter, question or dispute relating to "an appointment or a failure to appoint" and there is no jurisdiction because of Section 22 of the PSEM Act, and neither is there jurisdiction to make an interim order because the Commission needs to be authorised or the order needs to be in connection with a matter before the Commission and under Section 136(1)(d) of the Industrial Relations Act, the capacity to grant an interim order only arises if the Commission is authorised to make an order. If there is no jurisdiction the Commission cannot be authorised. 46 Mr Ginters referred to the Fisheries case (Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment Award) (2003) 129 IR 369) and at paragraph 9 of that decision it is made clear from that Full Bench authority that Section 22 (or its predecessor) should be construed broadly, by reference to an earlier Full Bench decision of the Ombudsman's case. 47 Mr Gibian cannot separate the Section 22 matter on the basis that he is only seeking interim relief, because if the Commission has no jurisdiction to finally determine proceedings, because of what Mr Ginters described as the proper characterisation of the matter earlier, then the Commission has no jurisdiction to grant the interim relief. It is not a matter of a serious question to be tried, it is a question of jurisdiction to be authorised to make an order. 48 Mr Ginters referred the Commission to the Annexures to Ms Krynda's affidavit Exhibit 6, the first of which, Annexure A was a staff structure prior to the re-organisation in July this year, which shows Mr Brown's name at classification Grade 9/10. This showed a number of people reporting to Mr Brown. At Annexure B was the staff structure from the 27th July, 2007, also shows Mr Brown, but with the title of Catchment Co-ordinator, Soils and Land Use Grade 9/10, with other persons reporting to him. 49 He continues to remain at the Grade 9/10 level, continues to be employed by the DECC and continues to work with the GRCMA. Annexure B shows some of the people previously reporting to Mr Brown moved across to report under the vacant Catchment Co-ordinator, Education and Extension position. By the same token, Mr Brown now has other people replacing those persons under him - i.e. whilst still holding a substantive Catchment Co-ordinator position. 50 Annexure C to Ms Krynda's affidavit, Exhibit 6, shows a generic position profile for the position of Catchment Co-ordinator. What Mr Brown performed pre restructure and what he performs post restructure fall within that generic profile. He continues with a substantive position, which has generic key activities and results to be achieved and a selection criteria. The internal dynamics sitting below those activities may wax and wane and change, but the key activities identified in that Annexure do not change for Catchment Co-ordinators. Mr Ginters invited the Commission in his submissions to cross reference the selection criteria at Annexure C to Exhibit 6 for the generic position description, with the very selection criteria applying when Mr Brown applied for the position of Catchment Co-ordinator in 2004. He took the Commission to some nine items of the selection criteria to demonstrate that they were the same throughout. There are now four such positions in the GRCMA and there is a total of twelve throughout all the catchment management authorities throughout New South Wales - reflecting a generic position profile. Whilst there may be some key activities and selection criteria tweaked at the edges, that does not detract from the eleven key activities applying to all catchment authorities, whether it concerns a Catchment Co-ordinator, Soils and Land Use or Catchment Co-ordinator, Catchment and Extension, or any of the four GRCMA Co-ordinator positions. For that very reason Mr Gibian cannot demonstrate that Mr Brown's Co-ordinator position no longer exists, because it continues to exist. 51 Mr Ginters provided the analogy of the Commission itself where despite the generic functions of a Commissioner, the statutory position might have it's key activities in the way industries changed from time to time through the decision of the President and might change panels, resulting in a change of duties. 52 Starting with the proposition that the key activities or inherent requirements of the job of Catchment Co-ordinator are the same across Catchment Co-ordinator positions, other changes to duties or the mix of people reporting to the position might change, as a normal thing. 53 Mr Brown has been encouraged to apply for the vacant Catchment Co-ordinator, Education and Extension vacant position and has apparently applied by the closing date of 7th December, 2007. Mr Ginters asked the Commission to look at the situation that if the applicant was unsuccessful, he would continue in his substantive position of Catchment Co-ordinator, Soils and Land Use. The Commission would not be confronted with an excess or displaced employee. 54 The fact that Mr Brown is not a displaced employee in terms of the Premier's Memorandum, goes to the issue of the serious question to be tried and balance of convenience test. A displaced employee is actually defined in the Premier's Memorandum as "a person whose position or job no longer exists", - clearly not the situation here. 55 Under the policy for managing displaced employees, Exhibit 2, on the 5th page at the 4th paragraph is another significant criteria "redeployment is the principle means for managing displaced employees whose position/jobs have been deleted". Mr Brown's position always will continue to exist in the structure in accordance with Annexure B to Exhibit 6 - Ms Krynda's affidavit. He will continue to hold his substantive position. 56 The very language used in Order 3 under Section 175 at a final hearing has a condition precedent that the displaced employee must be excess. There is no ambiguity and this represents a fundamental flaw in Mr Gibian's argument, as Mr Brown is not an excess officer. As such, there is not a serious question to be tried and nor does the balance of convenience warrant the granting of the interim order sought as contained within Exhibit 5. 57 Even if the Commission was to find there was a serious question to be tried, the Balance of Convenience overwhelmingly favours the declining of interim relief in these proceedings. There is no contest that he can apply (and has applied). If he is unsuccessful he will continue in his substantive position. He repeated that the application is properly characterised as Mr Brown seeking the direct appointment to the vacant position, which is impermissible under Section 22. The statutory language of Section 22 is clear that you cannot elevate policy requirements of the Premier's Memorandum over the Act. 58 This dispute does not traverse an ambit broader than Mr Brown and the circumstances of the Gwydir Rivers CMA. It is an incorrect analysis to suggest that the case is about "redeployment" as per the Premier's circular and not "appointment". This is a case about the use of semantic language to subvert or avoid Section 22. 59 The Commission is not a rubber stamp for applications for interim relief like this one. A substantive case needs to be made out. 60 Mr Ginters dealt with the caselaw referred to by Mr Gibian and distinguished those circumstances applying such as the case of the police officer who resigned and was not reappointed on the basis that Section 136 and 137(1) of the IR Act allows for dispute orders in respect of reinstatement or re-employment - in contrast to the present circumstances. In respect of the Public Service Board case, Mr Ginters dealt with the decision of the Builders Licensing Board to direct the transfer of an officer, a function specifically dealt with under a separate section of the then Public Service Act, recognising a different subject matter than the operation of the equivalent of Section 22 of the PSEM Act.

CONSIDERATION 61 The Commission has been assisted by the respondent's reference to the Crown Employees Fisheries Award case, wherein the Full Bench of this Commission reaffirmed the Ombudsmen's case findings in respect of Section 22 of the Public Sector Management and Employment Act. 62 Efforts to Mr Gibian to distinguish such firm rulings against the Commission's capacity to make orders affecting the "appointment to or failure to appoint to a position" on the basis, inter alia, that Mr Brown is a displaced employee for the purposes of the Premiers Memorandum 96/5 and that his position has become effectively deleted and that therefore he should be "placed", as opposed to "appointed" could not be decided firmly by me at this preliminary stage for the reasons apparent below. 63 The Commission has had regard to Mr Brown's affidavit (Exhibit 4) and its Annexures submitted in support of his argument that his substantive position of Catchment Co-ordinator has undergone significant change in the deletion of an important part of his duties prior to the restructure, particularly as they pertained to education essentials and farm management systems projects. His position was one of three what were described as "generic positions" of Catchment Co-ordinators (See Annexure C to his affidavit). Those changes as a result of the restructure from July, 2007 had to be viewed in the light of the need for a continual review of the duties which can result in deletion. If that step can be avoided, it is usually mutually beneficial for both parties for the incumbents to simply adopt the changed duties and not take a narrow view of deleting and creating a new position. 64 Whilst Mr Brown might be disappointed not to retain those significant duties now subsumed with the new (and vacant) position of Catchment Co-ordinator, Education and Extension, it cannot be reasonably said with any certainty that this type of reorganisation has resulted effectively in the deletion of his position. 65 The purpose of the Premiers Memorandum 96/5 is obviously to place people in a position, as close as possible to their skills and grade previously applying before their position was made redundant or deleted. If his position was to be considered technically deleted by virtue of the changes in his duties, then by the same logic, he might be considered to have already been effectively placed in another very equivalent position. 66 There was a lack of evidence of any real detriment suffered by Mr Brown by the change in his duties. His more specific responsibilities appear to have been replaced by others of equal or near equal status and has supervisory responsibilities appear from Annexures A and B of near or equivalent status. 67 The Commission has closely considered Mr Ginters strong argument that, as a matter of statutory construction, that the relief sought under Section 175 of the Industrial Relations Act NSW 1996 must be for the purposes of exercising its functions "in connection with a matter before it", over which the Commission has jurisdiction. 68 It has also been borne in mind his complimentary argument in respect to the interim order sought under Section 136(1)(d) that there must be a jurisdictional foundation, on the basis that the Commission must be "authorised" to make an order under that section. 69 His ultimate argument then ran that the Commission is not empowered to grant the final relief sought through Section 175 of the IR Act, namely draft orders 2 and 3 of Exhibit 5. To do so would be disallowed in terms of the clear language of Section 22 of the Public Sector Employment Management Act, excluding "the appointment or failure to appoint a person to a vacant position" from being an industrial matter for the purposes of the Industrial Relations Act 1996.

70 The Commission may eventually find in arbitration that it has not been able to agree that with the changes in duties, shifting education, and property management systems programs into the newly created Catchment Co-ordinator position, has amounted to anything more than changes that might be expected between generic positions in a variety of government and non-government employment. 71 The Commission will therefore remain to be convinced that there has been the deletion of his position as such, especially when the position he expressed and interest in, and was appointed to in October, 2004, was shown in Attachment C to his affidavit as "generic". 72 The fact that he continues to hold a generic position of Catchment Co-ordinator, might be found to mean that he has not been "displaced" for the purposes of Premiers Memorandum 96/5 and his position has not been "deleted" and as such is not required to be considered ahead of other candidates for the newly created position of Catchment Co-ordinator, Education and Extension as argued by Mr Gibian. 73 In those circumstances, to grant the orders sought, as set out in Exhibit 5, could be found in arbitration to be not within the intention of the Premiers Memorandum and then would constitute the "appointment or failure to appoint to a vacant position" in terms prevented by Section 22 of the PSEM Act, in which case, the Commission would not have jurisdiction for the final orders sought. 74 However, at this preliminary stage, the Commission has simply not been able to decide with sufficient certainty on the limited evidence of the two affidavits filed by Mr Brown (Exhibit 4) and Ms Krynda (Exhibit 6) as to whether there has been an effective deletion of the position as it stood at July, 2007. 75 It is often a moot point as to what stage the dynamic process of altering duties to accommodate changes in emphases would mean that a clerical role becomes comparatively unrecognisable as a result of a restructure. The use of the term "generic" to describe broadly similar roles within an organisation might successfully be argued in this case as disguising a major shift in responsibilities sufficient to amount to the deletion of the position. The Commission having reviewed the annexures attached to both affidavits, concludes that there does at this stage appear to be an arguable case that Mr Brown's loss of responsibilities might at least technically have amounted to the abolition of his position from July, 2007 and that also technically, he has been a displaced officer since that time, albeit, cushioned by fulfilling the restructured role of Catchment Co-ordinator, Soils and Land Use. In terms of the Castlemaine Tooheys test a serious question remains to be tried therefore, as to whether on a closer examination of evidence would show that he has been effectively displaced from his former role. 76 Dealing with the important jurisdictional argument by Mr Ginters, if upon arbitration, Mr Brown is finally found to be a displaced officer on the basis that his position of Catchment Co-ordinator was abolished as of July this year, the substantive orders sought under S.175 of the Act might not necessarily lack a jurisdictional basis. 77 This might be because Order 3 in Exhibit 5 merely requires him "to be considered ahead of others" (my emphasis) and it is possible that, still in accordance with the Premiers Memorandum, he is not guaranteed an automatic appointment to the position, despite being a displaced officer. 78 On that basis, the substantive orders could merely place him in the situation to be considered for priority, but not a guaranteed appointment. The appointment might or might not be later executed under the implementation of the Premiers Circular. 79 In that situation, it is arguable that such an order would not contravene S.22 of the PSEM Act as argued by Mr Ginters. 80 There would be no small irony if Mr Brown would have been successful in his current candidature, but for some reason fails in being considered ahead of other candidates as a displaced officer under the Premiers Memorandum, essentially designed to overcome hardship caused through redundancy and then is forced to return to the position he now occupies. Mr Brown should consider that possibility. 81 As to the balance of convenience, Mr Brown will continue in the position of Catchment Co-ordinator, Soils and Land Use, according to Mr Ginters instructions, if he is unsuccessful in his application for the position. 82 On the other hand, the recruitment process which was underway until the hearing of this application for injunctive relief, will be delayed considerably until the arbitration of the matter. 83 However, on balance, there is no alternative but to put that process on hold whilst the Commission considers the substantive orders, and depending upon a closer examination of the serious question as to whether his position as at July this year was deleted. 84 Hearing of the matter should be able to proceed early in the new year for a hearing date to be fixed and, for the purpose of issuing such directions, the matter is listed for 10th January, 2008 at 12 noon. 85 The interim order is granted in accordance with Exhibit 5. That the Border Rivers/Gwydir Catchment Management Authority not proceed with recruitment action in relation to the position of Catchment Co-ordinator, Education and Extension, pending arbitration of these proceedings.

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Notification under Section 130 by PSA&POA Union of NSW of a dispute with Dept of Environment & Climate Change re implementation of proposed new structure - CMA [2007] NSWIRComm 1096

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Judgment (20 paragraphs)

Cases Cited (8)

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