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

Industrial Relations Commission (NSW)|2017-09-14|Before: Chief Commissioner P

Solicitors: McNally Jones Staff Lawyers ( Notifier) C Feasel, Professional Standards Branch, Corrective Services NSW File Number(s): 2017/183385

Judgment

On 19 June 2017 the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("the PSA") notified a dispute pursuant to section 130 of the Industrial Relations Act 1996 (NSW) (the Act). The dispute concerned a decision to demote temporarily a member of the union, Mr Robert Lloyd, from the position of First Class Correctional Officer to Correctional Officer. The demotion was to be for a period of six months.

The Relief Sought

By its amended notice of motion the respondent sought: 1. An order that the Notification to the Industrial Registrar of Industrial Dispute pursuant to section 130 ("the Notification") filed by the Applicant on 19 June 2017 be struck out for want of jurisdiction. 2. Further or in the alternative, that the proceedings herein be permanently stayed; and 3. Such further or other orders as appears to the Commission to be appropriate in the circumstances.
The principles to be applied in an interlocutory application made to strike out an application for want of jurisdiction are well established. In Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443; 39 IR 169, Kirby P said at 446G: Such a course is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. But, as with any threshold relief of this kind, it must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for (1991) 28 NSWLR 443 at 447 any order which the Commission might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. This burden, which is a heavy one, was accepted by the claimants. In my opinion they have failed upon each of the three matters argued in this Court. (Emphasis added)
I will approach the matter on that basis.

The Relevant Legislation

The decision to demote Mr Lloyd was taken pursuant to s 69(4) of the Government Sector Employment Act 2013 (NSW) ("the GSE Act"). The section relevantly provides: 69 Misconduct - Public Service and other prescribed government sector employees … (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. …
Section 54 of the GSE Act relevantly provides: 54 Conditions of engagement (1) The engagement of a Public Service employee may be made subject to conditions notified to the employee on his or her engagement. (2) The conditions may include (without limitation) conditions dealing with any of the following matters: (a) probation, (b) citizenship or residency requirements, (c) formal qualifications, (d) security and other clearances, (e) health clearances. (3) The imposition of conditions of engagement is subject to the government sector employment rules. (Emphasis added)
Section 58 of the GSE Act relevantly provides: 58 Industrial or legal proceedings excluded … (6) The engagement of, or the failure to engage, a person as a non-executive employee, or any matter, question or dispute relating to any such engagement (or failure to engage), is not an industrial matter for the purposes of the Industrial Relations Act 1996. (7) No proceedings 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 a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. (8) Nothing in this section prevents any of the following proceedings from being brought by an employee of a Public Service agency in relation to the employment of another employee of any Public Service agency: (a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part, (b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act. (Emphasis added)
Pt 7 of Ch 2 of the Act is, relevantly, in the following terms: Part 7 Public sector disciplinary appeals Division 1 Preliminary 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. office includes position. … Division 2 93-96 (Repealed) 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, ... (2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4). … (b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect. 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. … 99 Alternative rights of appeal (1) Nothing in section 98 derogates from or otherwise affects any right of appeal a public sector employee may have, or other proceedings which may be instituted by the employee or on his or her behalf, under this or any other Act or law or any industrial award or agreement (whether enacted, existing or made before, on or after 1 July 2010) in respect of an appealable decision. (2) A public sector employee may not appeal to the Commission under section 98 in respect of an appealable decision if: (a) the employee has elected, in writing, to forgo a right of appeal under section 98 in respect of the decision, or (b) the employee makes an appeal or institutes other proceedings, or proceedings are instituted on the employee's behalf, in respect of an appealable decision under an Act or law or an industrial award or agreement referred to in subsection (1). (3) If an employee appeals to the Commission under section 98 in respect of an appealable decision, the employee may not then, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his or her behalf under an Act or law or an industrial award or agreement referred to in subsection (1). 100 Appealable decisions may be carried into effect despite right of appeal (1) An appealable decision may be carried into effect whether or not an appeal may be (or has been) made against the decision under this Division. (2) However, if the decision appealed against is a decision of a kind referred to in section 97 (1) (d), (f) or (g), a permanent appointment is not to be made to the position held by the employee when the decision was made until: (a) the time for making an appeal against the decision has expired without an appeal having been made, or (b) if an appeal is made within that time - the appeal is determined or has lapsed. Division 4 Procedures relating to the making of appeals 100A Notice of appeal A public sector employee may make an appeal by lodging with the Industrial Registrar a notice of appeal in the approved form. 100B Time for lodging appeal (1) (Repealed) (2) Notice of a disciplinary appeal must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made. (3) (Repealed) (Emphasis added)
The definition of "industrial matters' is found in s 6 the Act. It provides: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace, (k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades. (Emphasis added)

Issues

The grounds and reasons set out in the Amended Notice of Motion alleged a want of jurisdiction on several bases. They were: 1. The notification of dispute does not concern an industrial matter; 2. The "failure to engage" Mr Lloyd as a First Class Correctional Officer or his "engagement" as a Correctional Officer was not an "industrial matter" pursuant to s 58(6) of the GSE Act; 3. The matters raised in the dispute notification did not fall within the meaning of "industrial dispute" within the meaning of cl 2.3 of Schedule A of the Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) Award ("the Award"); 4. The appropriate jurisdiction of the Commission to deal with matters raised in the notification was Ch 2 Pt 7 of the Act; 5. There is a mandatory time limit on the making of appeals pursuant to Pt 7 of Ch 2 and that time limit had expired prior to the notification of the industrial dispute; and 6. The legislative intention of Ch 2 Pt 7 of the Act is that it will constitute the "single overarching framework" in relation to disciplinary appeals.

Consideration

The third issue identified above was not the subject of debate. On the face of the Award the matters raised by this notification were not of a kind covered by the nominated clause. However, as there was no real debate on the issue I don't find it necessary or appropriate to express a concluded view on the issue.
Save for the potential effect of s 58(6) of the GSE Act, I have no difficulty accepting the PSA's proposition that the dispute notification relates to an industrial matter within the meaning of the Act. The respondent did not really challenge that general starting point. The responded submitted: The power of the Commission to deal with industrial disputes… about industrial matters… is somewhat broad and would prima facie permit the Commission to deal with a collective dispute about a disciplinary demotion. The definition of industrial matters is set out above and I have emphasised the opening words. Those words are indeed broad and provide ample justification for the respondent's concession.
The respondent, however, sought to displace the prima facie position in two ways. The first of those was based upon the proposition that the specific provisions of Ch 2 Pt 7 displaced the general provisions of the Act. Council referred to the decision of the Full Court of the Industrial Court of New South Wales in Woolstar Pty Ltd v Federated Storeman and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39; decisions of the Court of Appeal in BP Australia Ltd v Brown (2003) 58 NSWLR 322, [2003] NSWCA 216 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253; and decisions of the High Court in R v Wallis (1949) 78 CLR 529; [1949] HCA 30; and Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; [1991] HCA 11; 37 IR 301.
The second way was to rely upon the express terms of s 58(6) of the GSE Act. In that regard reliance was placed upon the decision of the Commission in Australian Workers Union, New South Wales v Office of Environment and Heritage [2015] NSWIRComm 15 ("the AWU Case").
The response of the PSA was direct, not to say blunt. As to the first proposition it contended there was a complete answer found in the terms of s 99(1) of the Act, noting that the legislative regime did not resemble that considered in Woolstar. As to the second, the PSA submitted this dispute was not, on the proper construction of the term as used in s 58(6) of the GSE Act, concerned at all with the "engagement" of a person or any matter related to an "engagement". Counsel sought to distinguish the AWU Case.
It is convenient to deal with these propositions in reverse order.

Engagement or Failure to Engage

In the AWU Case at [17] to [19] I referred to the predecessor legislation and (at [23] and [34]-[39]) to authorities which had considered those predecessor sections. At [28] of that decision I cited the decision of the Full Bench in Re New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 in which equivalent legislation applying to the employees of the Technical and Further Education Commission was considered. I concluded that a dispute about the conversion of long term temporary employees to "ongoing" employees was a dispute about engagement of those employees and therefore not an industrial matter.
The AWU had argued that the employees were already employed and therefore it could not be about engagement. The key element considered in that case was the change in the nature of employment from temporary to ongoing. That short summary of the issue in that case is enough to distinguish that matter from this.
In this case Mr Lloyd is, and was prior to the demotion, already engaged in ongoing employment and there is no intention by the PSA to seek anything to do with that engagement or the nature of his employment. Although the words in s 58(6) are broad and the subsection contains words of extension, the essence of the legislative provision is about employing or a refusing to employ. Counsel for the PSA pointed to the usage of the term engagement in s 54 of the GSE Act to support that proposition. The conditions there set out are, he submitted, prerequisites to employment, appointment or engagement.
Neither employment nor refusal to employ are matters the subject of this dispute. In this matter the notifier is taking issue with what it says is an unfair disciplinary process. That is a qualitatively different matter and not one the subject of s 58(6) of the GSE Act.
While the words "or any matter, question or dispute" are words of extension they are qualified by the words "relating to any such engagement (or failure to engage)". In order to determine the effect of those words of extension it is necessary first to identify the engagement or refusal to engage on which they operate. There is no such foundational engagement or refusal to engage identifiable in this matter.
I accept Mr Reitano's submission that to give s 58(6) of the GSE Act the breadth of operation for which the respondent contends would mean that the Commission's awards prescribing classifications, rates of pay and conditions for public sector employees would be invalid as all of those matters may be said to relate to the "engagement" of staff. Such a construction would be inconsistent with, among other sections, s 85(1) of the GSE Act.
I therefore reject the respondent's submission that the dispute is not about an industrial matter because of s 58(6) of the GSE Act.

Statutory Construction - Specific Displaces General

This argument in essence accepts that the dispute raises an industrial matter but contends that the source of the Commission's authority to deal with disciplinary appeal matters is confined to Pt 7 of Ch 2 of the Act notwithstanding that a wider power over the same matter might have been implied in Chapter 3 of the Act.
The submission relies upon the decision in Woolstar. In that matter the Full Court held that the power to deal with unfair dismissals under the Industrial Relations Act 1991 (NSW) was confined, with one exception, to Ch 3 Pt 8 of that Act. The Court held that this legislative intention was clear from the language and structure of the statute. By analogy the respondent argues that Pt 7 of Ch 2, on its proper construction, reveals an intention to displace the broader general powers of the Commission. This approach to construction has its origins in decisions of the High Court mentioned above at [19].
In R v Wallis the Court considered the power of the then Commonwealth Court of Conciliation and Arbitration to make an award requiring employers to employ only persons who were members of a nominated union or to not employ persons who were not members of that union. The legislation contained a specific provision permitting the Court to make an award of preference. The claimant union relied upon the general award making powers to support its application. The general power depended upon the existence of a dispute as to an industrial matter. In the course of his decision Dixon J said at 550: The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him. But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co. (Burslem), Ltd. v. Ward, Willes J. refers to "the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined." (Emphasis added)
Other members of the Court expressed similar conclusions.
A similar approach was taken by the Court in Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672: [1979] HCA 26. The case concerned the power of the defendant to lend money to persons who were not the producers of Australian films. In that matter Mason J, with whose reasons the other members of the Court agreed, said at 678: However, it is necessary to take account of the presence of par. (a) of s. 21 (1). It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia Gavan Duffy C.J. and Dixon J. said: "Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when s. 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power." See also R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers. (Emphasis added)
Other examples of that approach to statutory construction are found in cases such as Downey v Trans Waste per Dawson J at 181 and Saraswati v The Queen (1991) 172 CLR 1 at 24; [1991] HCA 21.
These cases, it must be remembered, are illustrations of an approach to statutory construction. The question that must be considered is whether the statute in question evinces an intention that the specific should exclude the general. Mr Reitano points to s 99(1) of the Act and submits that subsection comprehensively rebuts that approach to construction in relation to this legislative scheme. Indeed it was the point made by Mr Wright in his opening submission on the first listing of the matter. Mr Wright illustrated the point by reference to the practice of deciding whether to apply to the Commission or to GREAT.
There can be little doubt that an employee who was dismissed pursuant to s 69(4)(a) of the GSE Act could elect to appeal pursuant to s 98 or make an application in relation to unfair dismissal pursuant to s 84 of the Act. The express terms of s 99(1) make that clear. The scheme of the legislation is to permit employees to elect which process they may pursue but there is also a clear intention that duality of proceedings is to be avoided. This latter aspect is evident in s 99(2) and (3) and in s 90 of the Act. I would therefore accept the submission advanced by Mr Reitano with one exception.
In my view there is a limitation imposed in Pt 7 of Ch 2 of the Act which may be rendered nugatory if the submission on behalf of the PSA were wholly accepted. There is a time limit for disciplinary appeals specified in s 100B(2) of the Act which has been held to be mandatory: see Singh v Legal Aid New South Wales [2014] NSWIRComm 1016 at [30] - [36] and the cases there cited. One of those cases was Patterson and James v Public Service Board (1984) 1 NSWLR 238 in which the Court of Appeal determined that the time limit for appeal to it from a decision of GREAT was mandatory and not subject to extension. In the course of his reasons Moffitt P, with whom Glass and Priestley JJ agreed, said at 240B: There is no provision in the GREAT Act or policy to be drawn from its terms which would justify the mandatory terms of s 55(1) not being so construed. So far as any policy does appear, it is to prescribe by the statute fixed terms for appeal without provision for extension and then to provide some administrative restraints in implementing decisions, but only during that defined time for appeal and thereafter during the pendency of an appeal. This is the apparent policy at least in the case of appeals to the tribunal as appears from the operation together of ss 26 and 29. In an administrative situation concerning appointments, this is consistent with an appellate arrangement which will enable certainty in the implementation of administrative decisions. There is certainty once time for appeal to the tribunal has elapsed. A replacement appointment of a dismissed officer could then be made with certainty of no appeal. Until this time s 26 operates to require the administrative hand to be stayed. This certainty would be destroyed, if it were open to extend time after it had elapsed. (Emphasis added)
The restraints on administrative action provided by s 26 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("the GREAT Act") applied to all of the decisions referred to in s 23 of that Act. While s 100(2) of the Act confines the restraints to the decisions relating to termination of employment. I do not consider that detracts from the policy objective referred to by his Honour Moffitt P.
Taking the approach to construction identified in R v Wallis, Leon Fink Holdings Proprietary Limited v Australian Film Commission, Downey v Trans Waste and Saraswati v The Queen the particular limitation evident in s 100B(2) would be rendered nugatory by permitting challenges to the listed disciplinary decisions otherwise than in accordance with the specific provisions governing those appeals.
The particular passages emphasised in the extracts from the decisions of Dixon and Mason JJ at [32] and [34] above emphasise the application of these principles of construction where there is a limitation or qualification on the specific power but not on the general power. That is the case in relation to Ch 2 Pt 7 and Ch 3 of the Act. There is a mandatory time limitation expressed in the former which is not applicable in the latter.
For that reason I would accept that employees have a choice to pursue alternative remedies up until the time for lodging an appeal in accordance with s100B(2). The legislative policy underpinning that limitation should not be allowed to be set aside by commencing proceedings under alternative general provisions after the expiration of that time.
This construction of the legislation is reinforced by s 98 of the Act and in particular the words, "subject to and in accordance with this part". Those words serve to emphasise the terms, including the restrictions, under which challenges to disciplinary decisions may be brought before the Commission.
There are two authorities which may be thought to contradict this last conclusion. They are: Public Service Association of New South Wales v New South Wales Crime Commission (1993) 48 IR 363 and Public Employment Office, Department of Corrective Services v Boda (2006) 150 IR 169; [2006] NSWIRComm 1. In my view they can be distinguished upon the basis that the GREAT Act has been repealed and these provisions are found in the one statute. There can be no doubt that the principles of construction require that apparently inconsistent provisions should be given a harmonious operation wherever possible. As was observed recently by Bathurst CJ in Kaldas v Barbour [2017] NSWCA 275: In the present case it is also important to have regard to the fact that the statute must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at [42].
In the first of these cases a Full Bench of the Commission was required to consider the proper construction s 254 of the Industrial Relations Act 1991 (NSW) ("the 1991Act"). That section provided: "Effect of availability of other remedies 254. The Commission is required to reject an application relating to the dismissal, or threatened dismissal, of a person who is an employee if: (a) another Act or statutory instrument provides for redress to the person, or for the holding of an inquiry, in relation to the dismissal or threatened dismissal; and (b) the person has commenced proceedings under the other Act or instrument or has not lodged with the application under this Act a written undertaking not to proceed under the other Act or instrument."
The Full Bench decided that the written undertaking required by the section did not need to be lodged contemporaneously with the application. The Commission's attention then turned to the time limitation under the GREAT Act and the capacity to extend time under the 1991 Act. In response to a submission that: "any written undertaking pursuant to s 254 of the 1991 Act must be "genuine", that is, if the ability to pursue an alternative remedy has expired, the waiver cannot properly satisfy the requirements of s 254 of the 1991 Act." The Commission concluded: "…in our view, the position would be that, in respect of an application under s 246(3) of the 1991 Act filed more than 28 days after the dismissal, no alternative remedy would remain available under the GREAT Act. The provisions of s 254 of the 1991 Act would not, in that circumstance, call for a waiver.
It was argued for the applicant in that matter that the GREAT Act and the 1991 Act did not constitute a legislative scheme. Reliance was placed on the statutory scheme of the 1991 Act and in particular s 255(1)(a) which provided: 255. (1) Subject to section 254, [Part 8 of Chapter 3 of the 1991 Act] has effect in relation to the dismissal, or threatened dismissal, of a person who is an employee despite: (a) the provisions of any other Act with respect to conditions of termination of, or dismissal from, employment;
Now, the relevant legislative provisions are contained in the one Act. I have addressed that above at [44]. Moreover, no equivalent provision to s 255(1)(a) above exists in the current legislation. That is the next point of distinction. The final point of distinction is the absence of any consideration of the authorities referred to in [40] above. I do not therefore regard it as an authority dealing with this point of construction.
The second case does not expressly, or even impliedly, deal with this issue. The ratio in Boda was succinctly summarised by Newall C in Fitzpatrick v Nepean Blue Mountains Local Health District [2016] NSWIRComm 1030. The Commissioner said at [19]: … it was held in Boda that in the factual circumstances of that applicant's case there was not another Act providing redress to that applicant about that dismissal. That is, as the Full Bench in Boda was very careful to point out with precision, the ratio of the case. That is not the issue to be determined here.
In Boda the employee had commenced proceedings in the Government and Related Employees Appeal Tribunal ("GREAT") to appeal against her dismissal. After conciliation before GREAT she withdrew her appeal thus causing it to lapse. It was common ground before the Commission she was then out of time to commence afresh before GREAT. A Full Bench of the Commission decided that the mere commencement of proceedings before GREAT was not enough to debar proceedings before the Commission. They observed: When s 90 is read in that context, and with the purpose of preventing duality of proceedings in mind, we accept Ms McKinnon's submissions that sub-section (a) does not apply to this case. There is no dispute that, following an unsuccessful conciliation, as at the date of the impugned decision, the respondent was (and continues to be) barred from bringing fresh proceedings before the Government and Related Employees Appeal Tribunal. In those circumstances, it cannot be said that, at the relevant time, the Government and Related Employees Appeal Tribunal Act "provides for redress" to the respondent in relation to the dismissal.
There was no submission that the lapse of time was itself a bar to the claim. Again, there was no consideration of the approach to construction required by the authorities identified in [40] above. The Full Bench relied upon the well-established concept of giving beneficial legislation full effect. The Commission did not consider the policy underpinning the time limitation in the GREAT Act. In my view the decision can be distinguished on that basis.

On Behalf Of

Counsel for the PSA, while not attempting to depart from the candid disclosure of Mr Wright, submitted that the union had its own interest in relation to the dispute. A discussion ensued between counsel and the Commission on the subject of whether dispute proceedings can be described as being instituted "on behalf of" Mr Lloyd within the meaning of s 99(1) of the Act. Counsel made the submission, which I accept, that the PSA has its own interest as a registered organisation in ensuring fair disciplinary processes for its members. In that regard a particular member's circumstances may serve to illustrate or highlight some flaw or unfairness in a process.
While I accept that submission, in my view the remedies which may be obtained in the dispute resolution processes must not be such as to circumvent the policy to which s 100B(2) gives effect.
The words "on behalf of" as they are used in s 99(1) must be understood in the context of the Act. Registered organisations have the capacity and authority to bring proceedings "on behalf of" their members. They may do so individually: see for example s 84(2) of the Act, or they may do so in a collective way on behalf of one or more members. I do not consider it appropriate to read the words in a narrow technical way. They should be given their ordinary grammatical meaning. In that way it will be a question of fact whether proceedings are "on behalf of" a member. That is not to withdraw the conclusion expressed in the last paragraph. The union may well have a collective interest illustrated by the circumstances of a particular member or members.

Conclusions

In summary I conclude: 1. The dispute notification concerns an industrial matter. 2. The subject matter of the dispute does not involve an "engagement or refusal to engage within the meaning of s 58(6) of the GSE Act. 3. A person the subject of an appealable decision can elect to pursue alternative remedies before the Commission up until the expiration of the time specified in s 100B(2) of the Act. 4. The remedies which may be sought pursuant to a notification of a dispute under Ch 3 of the Act cannot include a remedy which would circumvent the limitation or qualification imposed by s 100B(2) of the Act.
In light of these conclusions I refuse the application to strike out the dispute notification. I also refuse the application to permanently stay the proceedings. The PSA may well wish to pursue the union's interest in fair disciplinary process and I cannot conclude at this stage that it has been established that no order could be made that is within jurisdiction

Orders

I make the following orders: 1. The application for orders 1 and 2 in the respondents Amended Notice of Motion filed on 13 September 2017 is dismissed. 2. The proceedings are listed for directions on Monday 18 December 2017.

Amendments 20 December 2017 - corrected formatting in paragraph [38] 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: 20 December 2017

Government and Related Employees Appeal Tribunal Act 1980(NSW)ss 23

Industrial Relations Act 1991(NSW)ss 254

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