Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Sydney Opera House

Notice of Motion

1. The Motion filed by Sydney Opera House seeks the following orders: 1 The proceedings be dismissed. In the alternative 2 The Summons to Produce filed by the Applicant on 10 August 2021 be set aside. Or 3 Items 1 and 3 in the Schedule to the Summons to Produce filed by the Applicant … on 10 August 2021 be set aside.
2. The orders sought in the Motion were supported by the following grounds and reasons: 1 The Notification to the Industrial Registrar of an Industrial Dispute filed by the applicant does not identify an industrial dispute or an industrial matter as defined in Industrial Relations Act. As a result the Commission does not have jurisdiction to hear the proceedings. 2 The remuneration and conditions of employment of employees of the Respondent are set out in the Sydney Opera House Enterprise Agreement 2019-2020 and the Crown Employees (Public Service Conditions of Employment) reviewed Award 2009 and the Crown Employees (Public Sector - Salaries 2021) Award. 3 The Applicant does not identify any industrial dispute between identified employees of the Respondent and the Respondent. 4 The Applicant does not identify any industrial dispute between identified employees of the Respondent who are members of the Applicant to whom any exercise of the powers of the Commission will apply. 5 The proceedings are a fishing expedition for a details of positions and classifications within the workforce of the Respondent whether the workforce is within the award jurisdiction of the Commission or not. 6 The Summons is an abuse of process and should be set aside as it seeks the documents which are the purpose of the proceedings and . 7 The Summons should be set aside as an abuse of process as it constitutes a fishing expedition. 8 Items 1 and 2 of the Schedule to the Summons should be set aside as a search for the documents is oppressive. The inclusion of all documents describing organisational structures and identify all positions over 20 years is oppressive. The inclusion of all documents that identify duties, tasks or requirements over 20 years requires a search for any document that contains a duty, a task or a requirement of a position.
3. Orders were made by the Industrial Registrar for the filing and serving of evidence and outlines of submissions and the Motion was listed for hearing before me on 3 February 2022.

Case for Sydney Opera House

1. Sydney Opera House relied on an affidavit of Mark O'Sullivan sworn on 3 September 2021 but apparently filed on 1 October 2021. Mr O'Sullivan deposed that he had worked at Sydney Opera House for approximately 25 years. He had held the role of Human Resources Manager and was, at the time of swearing his affidavit, the Manager, Industrial Relations and HR Projects.
2. Mr O'Sullivan gave extensive evidence as to the logistical and other difficulties that would be imposed on Sydney Opera House if it was required to comply with the PSA's Summons to Produce.
3. Sydney Opera House also relied on a written outline of submissions filed on 1 October 2021. In that outline, it was again put that this Commission does not have jurisdiction to deal with the dispute filed by the PSA because "there is, in fact, no dispute between the parties about an industrial matter that is capable of being resolved by conciliation or arbitration". This submission was then expanded upon at length. A number of authorities were cited in support of the proposition that it "is not open to an applicant, in any form of proceedings, to make a bare allegation without basis, then use the process of discovery to determine if the allegation has merit" (Saraceni v Australian Securities and Investment Commission [2013] FCAFC 42; Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795; Storey v Commissioner of the New South Wales Police Force [2020] NSWSC 1135).
4. The outline of submissions concluded on this aspect in the following terms (footnotes omitted): 31. The Notifier, having made a bare and unsubstantiated assertion that an undefined cohort of employees, in respect of whom they have not been able to identify a single member, should be covered by the Award and not the Agreement, are trying to use the Summons at an early stage in the proceedings to support their speculation. This is an abuse of process. 32. A further reason warranting the dismissal of the proceedings is that the relief sought cannot be granted. The Notifier foreshadows (Notification at [3]) seeking a direction that the Award applies to an undefined category of employees. The Commission's power to issue a direction in arbitration of a dispute, pursuant to s136(1)(a) of the IR Act, are directions of an administrative or facilitative kind, as opposed to directions of a coercive kind. The Commission has no power to make the direction sought even if it could be expressed with a level of particularity so that it is capable of compliance. 33. For the reasons set out above, there is no 'industrial dispute' to be arbitrated and therefore no basis for the Commission to exercise its dispute resolution powers under Chapter 3 of the IR Act. Moreover, the proceedings are an abuse of process, in that it is evident the Notifier has no evidence to support the baseless speculation upon which the Notification depends, and discovery in the form of the Summons should not be permitted to allow the Notifier to fish for material to work out whether a dispute may exist. The proceedings should be dismissed,
5. The outline of submissions then dealt with the alternative orders sought in the Motion being the setting aside in whole or in part the PSA's Summons.

Case for the PSA

1. The PSA relied on a witness statement of Nicholas Player, Industrial Officer, filed on 29 October 2021.
2. Mr Player gave evidence of interactions he had in March 2021 with Mr O'Sullivan and other senior employees of Sydney Opera House concerning proposed changes to roles within the payroll and workforce planning functions. As a result of those interactions, Mr Player became concerned that Sydney Opera House was applying the Sydney Opera House Enterprise Agreement 2019-2020 ("Agreement"), to positions that fell within the coverage of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Conditions Award"). I note that the employee representative party to the Agreement is the Media Entertainment Arts Alliance ("MEAA") not the PSA.
3. Attached to Mr Player's witness statement was correspondence dated 23 February 1999 from Katherine Boyle, Sydney Opera House Industrial Officer, to Michele Hryce, NSW Director of the MEAA, in which Ms Boyle identified the individual units within Sydney Opera House which were covered by the PSA. These units or areas were described as "traditionally the 'back of house' administrative functions". Ms Boyle also stated that "[s]taff in these areas represent approximately 30 per cent of total permanent staff".
4. Also attached to Mr Player's witness statement was correspondence between the parties outlining their respective positions in relation to the PSA's contention that the Conditions Award was not being properly applied by Sydney Opera House.
5. The PSA also relied on a written outline of submissions filed on 29 October 2021 in which the PSA contested the contention of Sydney Opera House that the Commission lacked jurisdiction because there was no industrial dispute between the parties. The PSA stated: 10. This dispute concerns the construction and application of the coverage clauses of the Sydney Opera House Enterprise Agreement 2019-2020 ("the Agreement") and Crown Employees (Public Service Condition of Employment) Reviewed Award ("the Award").
6. The PSA submitted that the submissions of Sydney Opera House against the existence of an industrial dispute were, in reality, submissions on the merits of the dispute.
7. The PSA rejected the submission that the Notification and Summons were an abuse of process on the basis that there existed an industrial dispute and the documents sought in the Summons were relevant to the resolution of that dispute.
8. In answer to the submission of Sydney Opera House concerning the power of the Commission, or lack thereof, to give the direction being sought by the PSA pursuant to s 136(1)(a) of the Act (paragraph 3 at [2] above and paragraph 32 at [14] above) the PSA contended that it could, as an alternative, seek an order or a recommendation which would be binding on the parties by operation of cl 9.10 of the Conditions Award.
9. In response to the submission that the Summons was oppressive, the PSA narrowed the call to the following categories (at paragraph 55 of the outline of submissions): a. A copy of the organisational chart, or however so described, identifying all positions of the respondent that existed as of 29 March 2001 and the relative location of these positions within the organisational structure of the respondent that existed at that time. b. A copy of the organisational chart, or however so described, identifying all positions of the respondent that existed as of 29 October 2021 and the relative location of these positions wdithin the organisational structure of the respondent that existed at that time. c. A copy of each annual report of the respondent published between 2001 to 2005. d. A list of all positions covered by the Award in each of the years as of 29 March 2001 to present. e. A copy of each position description, or however so described, of each position of the respondent that existed on 29 March 2001 and which were not named in either cl 10 or schedule 1 of the Sydney Opera House (Staff) Award 2000. f. A copy of each position description, or however so described, of each non-executive position of the respondent that existed on 29 October 2021, except for the following positions: i. Rostering Officer. ii. All non-executive employees iii. Payroll services & Systems Manager iv. Payroll Operations Manager v. Payroll Officer vi. Workforce planning manager

The hearing

1. At the outset of the hearing on 3 February 2022, Counsel for Sydney Opera House, Mr Seck, advised the Commission that the only documents in dispute between the parties were those in categories a - e above.
2. Counsel for the PSA, Mr Chatterjee, advised the Commission that "All non-executive employees" at category f. ii above needed to be deleted.
3. Mr O'Sullivan gave some short oral evidence in relation to the remaining disputed categories of documents and he was cross-examined.
4. Whilst Counsel for Sydney Opera House pressed for the orders as set out in the Motion, he stated that, in the event that the Commission declined to make orders in those terms, "we have a fallback argument, based on Mr O'Sullivan's viva voce evidence, that categories A and E set out in paragraph 55 of the notifier's submissions, are nonetheless oppressive and should be set aside on that basis" (T P 11 L 29-32).
5. Counsel then directed the Commission to clause 1.2 - Parties of the Agreement which states at subclause 1.2.2: This Agreement covers all SOH employees except Senior Executives and employees covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.
6. The Commission was then directed to clause 6 - Coverage of the Conditions Award which relevantly provides: (b) Where another industrial instrument or arrangement applies to a group of employees covered by this Award the following interaction rules apply: … (iii) If the other industrial instrument or arrangement comprehensively determines conditions of employment for a group of employees then this Award shall have no application in relation to that group of employees;
7. Counsel then referred the Commission to the decision of Commissioner Constant, as she then was, of 18 December 2019 in which the Commissioer approved the Agreement (Sydney Opera House Enterprise Agreement 2019-2020 [2019] NSWIRComm 1094). At [14] of that decision, the Commissioner stated: I am satisfied that the Sydney Opera House Enterprise Agreement 2016-2019 comprehensively determines the conditions of employment of the group of employees covered by the Agreement, and that the group of employees who will be covered by the Agreement excludes employees covered by the Conditions Award. Accordingly, I am satisfied that the material presented to the Commission, including the comparison tables annexed to Mr O'Sullivan's affidavit, adequately demonstrates that the requirements pursuant to s 35 of the IR Act are met.
8. Counsel then spoke to the written outline of submissions that had been filed on behalf of Sydney Opera House.
9. Following an exchange between the Commission and Counsel, Mr Seck put the following: And so our contention is more focused on the issue of "What's the dispute here that's capable of resolution?" And that's, in my respectful submission, the difficulty because what the union is saying is, "I can't tell you. We don't know but we're going to dig around and try to find out whether or not we can know so we can then tell you what the dispute is." That puts the cart before the horse, with great respect, because there's no threatened dispute, there's no actual dispute, there's a hypothetical dispute which may exist in the future if they can tell us once they go through digging around historical records and can come up with an argument. That's a different position altogether to, with respect, historical issues which might have informed a much more, development of much more expansive view of the definition of "industrial dispute", "industrial matter", both in this jurisdiction and the Federal jurisdiction (T P 21 L 44 - P 22 L 5).
10. Counsel then moved on to the PSA's Summons which, it was submitted, constituted an abuse of process and was oppressive.
11. Counsel for the PSA, Mr Chatterjee, put submissions against the Motion and in support of the Notification and the Summons. I do not propose to canvass those submissions apart from what was put on the issue of oppression. Counsel stated: Finally, with respect to the oppression argument, I say that the evidence that was led by Mr O'Sullivan this morning is insufficient to ground an oppression argument. I note that the notifier has taken into account the evidence that was previously led and has, in my submission, appropriately confined the scope of summons. Specific documents are sought with a limited time frame. That material is clearly relevant. Any question of oppression is - it's a qualitative question that has to be weighed against the relevance of the material and the oppression against the interests of the organisation as a whole. Mr O'Sullivan's evidence was, and I'm not criticising him for this, but Mr O'Sullivan's evidence was necessarily vague because he could not really assess how much time and effort would be necessary. I don't deny that some time and effort is necessary but that does not, in itself, make a request oppressive. Almost any request for documents, particularly one going back, will require some effort. Mr O'Sullivan agreed that his estimates will depend upon effectively how lucky or unlucky the search efforts went and no evidence was led that, even on Mr O'Sullivan's highest estimates, that search would be intolerable or impossible for the respondent to be able to cope with, noting that the respondent is a large well-funded organisation. So in my submission, the oppression argument on the confined scope, the material just isn't good enough for the respondent to get there (T P 37 L 26-45).

Determination

1. The term "industrial dispute" is defined in the Dictionary to the Act as follows: industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following - (a) a demarcation dispute, (b) a threatened or likely industrial dispute, (c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken.
2. The term "industrial matters" is defined in s 6 of the Act as follows: (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.
3. Clearly, "industrial dispute" and "industrial matters" are very broad concepts.
4. In this matter, it is the contention of the PSA that Sydney Opera House is wrongly applying the terms of the Agreement to employees who are, or who should be, covered by the Conditions Award. Whether or not this is occurring is beside the point. This Commission regularly convenes compulsory conferences in response to dispute notifications from unions only to find, upon examination, that the complaint by the union against the employer is baseless. This does not deprive the matter of its character as an "industrial dispute".
5. Based on the evidence and submissions of the PSA, I have no doubt that the Notification identifies an industrial dispute within the meaning of the Act which is amenable to the dispute settling powers of this Commission. It follows that I reject the submissions of Sydney Opera House on this issue except with respect to the question of the Commission's inability to make a direction under s 136(1)(a) of the Act of the sort referred to at paragraph 3 of the Notification (at [2] above). However, for the reasons put by the PSA, that of itself, is no basis for dismissing the proceedings (at [23] above).
6. I further reject the submissions of Sydney Opera House to the effect that the Summons constitutes an abuse of process or a fishing expedition. The scope of the Summons has been significantly reduced from when it was first issued. The categories of documents are sufficiently described as to be readily capable of identification. The documents in each category have a legitimate forensic purpose being to identify which employees, if any, are having the terms of the Agreement applied to them when they should be covered by the Conditions Award.
7. On the question of oppression, I accept what was put by Mr Chatterjee (at [35] above), in particular, with respect to categories a and e.
8. It follows that the Motion must be dismissed.

Orders

1. I make the following orders: 1. The Notice of Motion filed on behalf of Sydney Opera House in this matter is dismissed. 2. Within 28 days of the date of this decision Sydney Opera House is to produce to this Commission the following categories of documents: a. A copy of the organisational chart, or however so described, identifying all positions of the respondent that existed as of 29 March 2001 and the relative location of these positions within the organisational structure of the respondent that existed at that time. b. A copy of the organisational chart, or however so described, identifying all positions of the respondent that existed as of 29 October 2021 and the relative location of these positions wdithin the organisational structure of the respondent that existed at that time. c. A copy of each annual report of the respondent published between 2001 to 2005. d. A list of all positions covered by the Award in each of the years as of 29 March 2001 to present. e. A copy of each position description, or however so described, of each position of the respondent that existed on 29 March 2001 and which were not named in either cl 10 or schedule 1 of the Sydney Opera House (Staff) Award 2000. f. A copy of each position description, or however so described, of each non-executive position of the respondent that existed on 29 October 2021, except for the following positions: i. Rostering Officer. ii. deleted iii. Payroll services & Systems Manager iv. Payroll Operations Manager v. Payroll Officer vi. Workforce planning manager
2. The matter will be listed for a directions hearing once order (2) has been complied with. John Murphy Commissioner

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 October 2022