STATEMENT AND DIRECTIONS
1On 24 June 2011, the Commission made a statement and gave directions in relation to Matter No IRC 214 of 2011 ( Re Crown Employees (Public Sector - Salaries 2011) Award [2011] NSWIRComm 84). The directions:
(a) established a timetable for the filing of submissions in relation to the challenge by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") to the validity of the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 ("the Amendment Act") and its contention that the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ("the Regulation"), which had been made under s 146C of the Industrial Relations Act 1996, was not a valid exercise of the regulation making power in s 407 of the Industrial Relations Act;
(b) revised the timetable for the filing and serving of material in relation to the substantive proceedings that involves an application by the PSA for new Awards, namely, Crown Employees (Public Sector - Salaries 2011) Award and Crown Employees (Roads & Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions) Award 2011;
(c) established a timetable for the filing of cross applications by the Director of Public Employment ("the DPE") and the Roads & Traffic Authority of New South Wales ("the RTA");
(d) made the additional following directions:
- Directions Hearing 9.30 am 15 July 2011.
- Conciliation at 10.00 am on 26 July 2011.
- Hearing 1 to 26 August 2011 inclusive before Full Bench.
2Since those proceedings, and in accordance with the timetable set, the PSA has filed and served its submissions regarding its invalidity challenge and the DPE and RTA have both filed and served cross applications (Matter Nos IRC 1242 and 1238 of 2011 respectively). The DPE and the RTA have also filed their evidence. As a consequence of notices served under s 78B of the Judiciary Act 1903, the Attorney General for New South Wales has sought to intervene in relation to the constitutional point. Leave was granted.
3The cross applications seek a new Crown Employees (Public Sector - Salaries 2011) Award and variations to Schedule 2 of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions) Award 2008 and Schedule 3 of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries) Award 2008. The effect of the applications, if granted, would be to increase salaries by 2.5 per cent effective from when the Commission makes or varies the Award as the case may be. The applications, however, also seek No Extra Claims clauses. The provision sought in the Crown Employees (Public Sector - Salaries 2011) Award is as follows:
The parties agree that, during the term of this Award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the Award or the Awards, Agreements and Determinations listed in Schedule A of this Award, and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission of New South Wales or any other industrial tribunal.
The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions.
4The provision sought in the RTA's Salaried Staff Award is in the following terms:
The pay increase in this Award is made on the basis that no party may, during the term of this award up until 30 June 2012, make any extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the award or the awards, agreements and determinations listed in Schedule A of this award, and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal.
The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions.
5Senior Counsel for the DPE indicated that an offer had been made to the PSA to pay the 2.5 per cent from 1 July 2011 if there was agreement to the terms of the Award sought in the cross claim. The RTA's position was the same. The PSA has rejected that offer because by the terms of the No Extra Claims commitment it would be precluded from pursuing any increases greater than 2.5 per cent for a period of 12 months even if it were successful in having the Amendment Act and/or the Regulation declared invalid.
6Senior counsel for the PSA submitted that following the hearing of the invalidity challenge the Commission should proceed immediately to deal with the merits of the PSA's application. Otherwise, it was submitted, the PSA and its members would be prejudiced by further delay. Senior counsel for the DPE, supported by the RTA, submitted that the arbitral stage of proceedings should not be dealt with until the invalidity issues were determined.
7The Commission was advised that insofar as the invalidity challenge was concerned the Attorney would take the lead on the question of whether the Amendment Act was constitutionally valid and the Minister would lead on the question of whether the Regulation was validly made. Counsel for the Attorney, supported by the Minister, submitted that it was preferable that the Commission in Court Session determine the invalidity issues rather than the Commission.
8Senior counsel for the Minister raised the issue of whether I should sit as a member of the Full Bench to hear the invalidity issues as distinct from the merit issues. This arises from a facsimile message sent by the Crown Solicitor's Office on Wednesday 13 July 2011 on instructions from the Minister to my Chambers asking me to consider whether I should disqualify myself because "recent public statements" I was said to have made "may give rise to a reasonable apprehension of bias in the perception of a fair minded lay observer". The "recent public statements" were not identified. However, given the course I intend to follow, which is explained below, the issue does not arise and it becomes unnecessary to take the question of disqualification any further.
9I agree with the Attorney that the preferable course, given the nature of the invalidity issues, is that the Commission in Court Session, and not the Commission, should determine them. Given the significance of these issues I intend to constitute a Full Bench of the Commission in Court Session. I do not intend to sit on that Full Bench. Whilst the PSA correctly contended the Commission is competent to determine the validity of legislation or subordinate legislation relevant to its own jurisdiction, including considering and reaching an opinion about a constitutional question, certainty of outcome will be achieved if the PSA were to formulate the precise relief it seeks in the form of declaratory orders. I do not understand the PSA to have any fundamental objection to this course. Accordingly, the PSA should file a notice of motion setting out the orders it seeks and to do so within 48 hours.
10As I understand from the parties' estimates it would be appropriate to set aside two days for the hearing of the notice of motion. Therefore, the Full Bench of the Court will deal with the motion on 1 and 2 August 2011.
11Insofar as the PSA's application is concerned, the question arises as to whether it would be appropriate for that application, seeking as it does increases of more than 2.5 per cent, to be heard and determined prior to any outcome in the invalidity proceedings. However, in light of the cross applications, there is the more immediate question of the availability of an increase for public servants of 2.5 per cent.
12On the face of the application and the cross applications, it appears to be common ground that 2.5 per cent is available, but differences exist as to operative date and the nature of any limitation that might be imposed on seeking increases above 2.5 per cent. These issues might be resolved in conciliation, which has been scheduled to take place on 26 July 2011. The conciliation proceedings will also address the question of how and when the PSA's application should be progressed, insofar as it seeks increases in excess of 2.5 per cent.
13If conciliation does not resolve these issues, the Full Bench of the Commission will sit on 4 August 2011 to hear and determine them.