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[2013] NSWIRComm 76
Industrial Relations Commission (NSW)
2013-09-06
Boland J, Mr J
Original judgment source is linked above.
ional Officers' Association Amalgamated Union of New South Wales (Applicant in matters 256, 257, 259, 260, 261, 262, 263 and 342 of 2013) Mr T Craft for Director General, NSW Ministry of Health (Respondent in 352, 367-387, 737 and 738 of 2013) Mr D Lloyd for Landcom (Applicant in matter 261 of 2013)Mr M Wright for New South Wales Nurses and Midwives' Association (Applicant in matters 737 and 738 of 2013) Mr M Doherty for Health Services Union (Applicant in matters 367-387 of 2013) Crown Solicitors Office for Secretary of the Treasury File Number(s): IRC 256 of 2013 and others
INTERLOCUTORY DECISION 1In Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors [2013] NSWIRComm 53 (25 June 2013) the Full Bench of the Commission made findings the effect of which was to reject submissions by the Secretary of the Treasury ("the Secretary") that the 2.5 per cent per annum increase allowable under the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ("the Regulation") was to be discounted by the 0.25 per cent increase in superannuation contributions under Commonwealth legislation effective from 1 July 2013. The findings followed an exercise in statutory interpretation of s 146C of the Industrial Relations Act 1996 and the Regulation. 2Following the decision of the Full Bench, the New South Wales Government amended the Regulation by means of the Industrial Relations (Public Sector Conditions of Employment) Amended Regulation 2013 ("the Amended Regulation"). The effect of the Amended Regulation, which operated from 28 June 2013, was to require the Commission, in making awards and orders under the Industrial Relations Act, to take into account increases in superannuation contributions promulgated by federal legislation. 3Consequently, negotiations occurred between the parties as to what was the appropriate amount by which rates and allowances should be adjusted in light of the Amended Regulation. It was agreed the amount was 2.27 per cent and, accordingly, the parties began the process of amending the unions' original applications to vary to substitute 2.27 per cent for 2.5 per cent. It had been agreed that the increase would operate from 1 July 2013. 4However, on 21 August 2013 the Legislative Council disallowed the Amended Regulation, which meant that the Regulation applied. That is, an increase in rates of pay and allowances of 2.5 per cent per annum was available to be included in awards, agreements and determinations in the public sector. 5On 6 September 2013, union parties, led by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA"), pressed the Commission to vary the awards that are the subject of the proceedings by increasing rates and allowances by 2.5 per cent. The Secretary, as the employer of staff in the public service for the purposes of industrial proceedings, opposed the course proposed by the PSA and other unions. 6The Secretary submitted that he should be given an opportunity in proceedings to present a case based on budgetary and economic considerations that any increase beyond 2.27 per cent was not sustainable. Reference was made to an affidavit of Maryanne Mrakovcic, Associate Secretary, Fiscal and Economic Group with the NSW Treasury that had been filed on 5 September 2013. It was indicated that Ms Mrakovcic's affidavit would constitute the Secretary's evidence in the proceedings. 7The Director General, Ministry of Health, indicated that the bargaining parameters approved by the Government extended only to an increase of 2.27 per cent and therefore the Ministry could not agree with an increase of 2.5 per cent. Mr T Craft, for the Director General, indicated that if the Commission were to accede to the Secretary's application it was not presently the Ministry's intention to file evidence. Landcom essentially adopted the same position as the Ministry for Health. 8The union parties strongly opposed the Secretary's application and were highly critical of the Secretary's position, describing it as "breathtaking" not only because of the lateness of the application, but also because it "flew in the face" of the Government's own policies regarding the availability of the 2.5 per cent and because it had never been foreshadowed by the Secretary in the five months since the unions had first commenced to make their applications for the increase of 2.5 per cent. 9Notwithstanding the unions' understandable concern at the Secretary's shifting position, it seems to me he has to be given the opportunity to present his economic and budgetary case opposing the 2.5 per cent increase. The Industrial Relations Act requires the Commission to take into account the public interest in the exercise of its functions and, for that purpose, must have regard to the state of the economy of New South Wales and the likely effect of its decisions on that economy (s 146(2)). If the employer of public sector employees has submitted, as he has, that an increase of 2.5 per cent is not sustainable without negative consequences for, inter alia, the budget and employment and wishes to present evidence and make submissions in that respect, he cannot be denied that opportunity. 10However, the view I take in light of s 146C and the Regulation is that prima facie, an increase of 2.5 per cent per annum is available to public sector employees and the onus is on those parties opposing such an increase to show why a lesser amount is warranted.
Directions 11The Commission makes the following directions: (1) The Commission as presently constituted will sit at 10.00 am on Monday 30 September and Tuesday 1 October 2013 to hear evidence and submissions. (2) Noting that the Secretary's evidence has already been filed and there is no indication from any other employer party of a desire to file evidence, the employer parties wishing to do so shall file written submissions in support of their case by 4.00 pm on Friday 13 September 2013. (3) Union parties wishing to contest the Secretary's position shall file and serve their evidence and written submissions by 4.00 pm on Friday 27 September 2013. (4) Employer parties wishing to do so shall file and serve any submissions in reply by 10.00 am Monday 30 September 2013.
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: 06 September 2013