Ters v Health Secretary in respect of the South Western Sydney Local Health District

The Appeal

1. Ms Ters seeks to appeal the Decision. On 20 May 2022 she filed an Application for Leave to Appeal and Appeal pursuant to ss 187 and 188 of the Act.
2. The Application for Leave to Appeal and Appeal sets out the grounds of appeal as follows (removing two grounds which were abandoned during the course of the appeal proceedings): "E. GROUNDS OF THE APPEAL ARE (1) The Commission erred in law at [47], [48], [49] and [50] of the Decision in deciding that a threat needed to victimise requires the threat to be certain, imminent and unconditional. In doing so, the Commission conflated the test for interlocutory relief under section 89(7) of the IR Act with the test for victimisation under section 210. Such error was an error as to jurisdiction. (2) The Commission erred in law at [37], [38], [41] and [43] of the Decision in deciding that section 213(2) codifies the types of orders that the Commission is empowered to make in circumstances where section 213(2) describes particular examples of the broad power to make orders referred to in section 213(1). Such error was an error as to jurisdiction. (3) The Commission erred in law in the conclusion at [50] and [51] that the Application does not disclose a reasonable cause of action. … (5) The Commission erred at [45] of the Decision in failing to provide adequate reasons in rejecting the Appellant's argument that removal of the warning letter dated 20 May 2021 (Warning Letter) from the Appellant's employment record constitutes an order that the employer 'promote or otherwise advance an employee in his or her employment' pursuant to section 213(2)(b) of the IR Act was arguable. …" (Emphasis in original)
3. Ms Ters seeks orders that the Decision be set aside and that the Victimisation Application be remitted to another member of the Commission for determination. She also seeks an order that the Health Secretary pay her costs of the appeal.

Leave to appeal

1. Pursuant to s 188 of the Act, an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
2. The Application for Leave to Appeal and Appeal set out the reasons why it was contended that leave to appeal be granted. It is not necessary that they be reproduced. The Health Secretary accepted that it would be in the public interest that leave to appeal be granted in this matter. We agree.
3. The appeal goes to the Commission's powers to grant relief in applications brought under Ch 5 Pt 1, and the scope of that relief. These are significant issues going to the Commission's powers. As we explore below, there is inconsistent single-member authorities on these questions and it is appropriate that the Full Bench seek to resolve that controversy. Having regard to the principles governing the granting of leave to appeal, summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11], we find that it is in the public interest that leave to appeal be granted.

Principles to apply on appeal

1. An appeal to a Full Bench "is not by way of a new hearing": s 191(1) of the Act. The Full Bench "cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received": s 191(3).
2. The Decision involved the construction of the Act and did not involve the exercise of a discretion. It follows that the question for the Full Bench is whether Commissioner Webster reached the correct decision, not whether the decision was reasonably open to her: Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 at [17]-[18] and [48]-[50]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 at [26].

Grounds of appeal

1. The decision of Commissioner Webster to dismiss the Victimisation Application was the result of her findings that "the Victimisation Application does not disclose a cause of action that could be successful" (at [50] of the Decision) and that it did "not disclose a reasonable cause of action" (at [51] of the Decision). These findings followed a process of reasoning in which she had determined, inter alia, that: 1. s 213(2) was a comprehensive code of the Commission's relevant powers; 2. as a consequence, in order to obtain relief, Ms Ters needed to demonstrate that an order permitted by that section ought to be made; 3. s 213(2)(b) was not available, as an order to remove a written warning is not one requiring the employer to "promote or otherwise advance an employee in his or her employment"; 4. to the extent that s 213(2)(e) was available, it required a threat of victimisation to be certain, imminent and unconditional. The Warning was not a certain, imminent and unconditional threat; and 5. the order sought by Ms Ters "is not able to be made pursuant to any sub-category of subs 213(2)" (at [50]).
2. We will address the grounds of appeal in the sequence which reflects the Commissioner's process of reasoning. We will commence with ground 2, which goes to the extent of the Commission's powers under s 213. Ground 1 will follow, as it relates to the Commission's powers specifically under s 213(2)(e). Ground 5 encompasses a statement by Commissioner Webster as to the scope of s 213(2)(b) and will be dealt with next. Ground 3, which challenges the conclusions reached by the Commissioner that the Victimisation Application did not disclose a reasonable cause of action, will necessarily be informed by our findings in respect of the other grounds of appeal and will be addressed last.

Ground 2

1. Ground 2 of the appeal asserts that Commissioner Webster erred in deciding that s 213(2) codifies the types of orders that the Commission is empowered to make, rather than describing particular examples of the broad power to make orders conferred by s 213(1).
2. This ground distils into the following contest between the parties: Ms Ters contends that s 213(1) confers on the Commission a broad power to make orders to enforce Ch 5 Pt 1, and s 213(2) provides examples of the orders that the Commission might make pursuant to that power. The Health Secretary argues that s 213(2) exhaustively specifies the orders the Commission can make for the purposes of s 213(1) (a proposition with which Commissioner Webster agreed).

Principles of statutory construction

1. The determination of this ground requires the construction of s 213. The principles of statutory construction were summarised by Commissioner Webster at [29]-[34] of the Decision. There was no suggestion on appeal that the Commissioner had not properly articulated those principles. As a consequence, we will not reproduce those passages.
2. By way of emphasis, however, we note that the Commissioner observed (at [33]) that "the principles of beneficial legislative interpretation" apply in the analysis of provisions in Ch 5 Pt 1, citing Bull v Attorney General (NSW) (1913) 17 CLR 370 and Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 1076 (sic - (1999) 93 FCR 481). In Bull v Attorney-General Isaacs J remarked (at 384): "In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co.). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow." (Emphasis in original, footnote omitted)

Earlier decisions on s 213

1. Previous decisions of the Commission have come down on either side of the division between the parties in these proceedings.
2. At [42] of the Decision, Commissioner Webster extracted passages from the decision on Commissioner Newall in Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky"). Those passages are reproduced above in our extract from the Decision. However, it is convenient to reproduce the following paragraph from Morawsky: "21. The power given to the Commission is to enforce the provisions of, particularly, s 210; certainly sections 209, 210, 211 and 212 in whole, but s.210 particularly, is not to 'grant relief' or to 'inquire into', it is to 'enforce'. That is why the steps which are set out in the sub-sub-sections to sub-section 213(2) must be seen as a comprehensive code of the Commission's relevant powers. The Commission is not at large, just to enquire about and say anything it likes about an application of this kind, it has certain enforcement powers and they are codified in sub-section 213(2) and they are no wider than that."
3. At [43] of the Decision, Commissioner Webster accepted as correct the reasoning in Morawsky and the conclusion reached in that case that s 213(2) "codifies the types of orders that the Commission is empowered to make". It is apparent that Morawsky featured heavily in her reasoning to dismiss the Victimisation Application.
4. In her written submissions on appeal, Ms Ters contended: "23. The Commissioner [in Morawsky] did not explain why the reference to enforcement in s 213(1) necessarily meant that the steps in 213(2) must be seen as a comprehensive code. Indeed, it would be assumed that the parliament had intended to provide an enforcement regime; they would provide the broadest power to the Commission to be able to enforce it regime."
5. We consider that there is force to these submissions.
6. That being said, in Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 at [54], Commissioner Seymour quoted Morawsky with apparent approval.
7. By contrast, in Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 ("Silsbury") Commissioner Murphy rejected an argument that s 213(2) was an exhaustive provision. In that matter, the relief sought by the applicant included an order pursuant to s 213 that the respondent pay her an amount for "stress, distress, hurt and humiliation" and "loss of reputation". The respondent filed a motion seeking the summary dismissal of the proceedings. The respondent's contentions in support of the motion included that the Commission did not have jurisdiction to award the payment sought. The respondent contended that s 213(2) "is an exhaustive provision which limits the Commission's jurisdiction in this regard", citing Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No 2) [2019] NSWIRComm 1056 at [71]-[74]: Silsbury at [30].
8. Commissioner Murphy rejected this contention in the following terms: "52. Contrary to what is put in support of the Respondent's Motion…, I do not regard the decision of the Full Bench in Davie at [71]-[74] as being supportive of the contention that subsection 213(2) of the Act is 'an exhaustive provision which limits the Commission's jurisdiction in this regard'. Whilst I readily accept that a claim for compensation in the nature of general damages, in the context of proceedings brought pursuant to section 213 of the Act, is novel and likely to face significant jurisdictional hurdles, I am unable to conclusively determine, at this stage of the proceedings, that such a claim is 'so obviously untenable that it cannot possibly succeed' or is 'manifestly groundless' or is 'so manifestly faulty that it does not admit of argument'."
9. While Commissioner Murphy only addressed expressly the contentions advanced by the respondent in those proceedings, it is implicit in the paragraph we have reproduced that he did not accept that the Commission's powers were constrained to making the orders identified in s 213(2).
10. Ms Ters also drew our attention to Simon Richard Lane v The Commonwealth Bank of Australia [1999] NSWIRComm 336. In that case, Sams DP determined that jurisdiction existed for the Commission to make orders for interlocutory relief, including interlocutory relief in the form of reinstatement, under s 213. This was found to be the case despite there being no express power in s 213(2) to grant interlocutory relief. That determination is inconsistent with s 213(2) being an exhaustive expression of the Commission's powers to enforce Ch 5 Pt 1.

The language of the provisions

1. The starting point in statutory construction is to consider the words of the provision in question read in the context of the statute: Certain Lloyds Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56 at [88] (Kiefel J, as her Honour then was). We have been presented with alternative theses as to how s 213 is to be read.
2. Ms Ters places reliance on the words "in particular" in the chapeau to s 213(2). She contends that on an ordinary grammatical reading, those words convey a legislative intention that the orders listed in s 213(2) are examples of the types of orders that might be made pursuant to the grant of power in s 213(1).
3. The Health Secretary argues that, in context, the words "in particular" are words of limitation. They must be read together with the words "for that purpose" in the chapeau, which is a reference to the power to enforce the provisions of Ch 5 Pt 1 conferred by s 213(1). In her written submissions on appeal, the Health Secretary contended: "32. If the Appellant was correct, the Commission could make any appropriate order pursuant to s 213(1) including compensation (unlimited), the payment of penalties, the provision of public apologies etc. Such an interpretation is inconsistent with the scheme of the IR Act in respect to remedies generally such as quite specific [sic]." (Footnotes omitted)
4. The Health Secretary further contends that if s 213(1) is a plenary grant of power, there would be no need for s 213(2). In addition, it would be difficult to reconcile the particular powers in s 213(2) with the power under s 213(1) being seen to be "at large". That is, why would it be necessary to empower the Commission under s 213(2)(f) to "order an industrial organisation…to take any particular action or to cease any particular activity" (our emphasis) or to allow for the making of "consequential orders" in s 213(2)(g)?
5. In our view, the construction proposed by Ms Ters is to be preferred. We have reached this conclusion having regard to a number of considerations.

History of the provision

1. Ms Ters drew our attention to the history of s 213. The predecessor to that provision was s 482 of the Industrial Relations Act 1991 ("1991 Act"), which provided as follows: Victimisation: reinstatement, damages etc 482. (1) For the purposes of this section, a person is victimised if the person is the subject of a contravention of section 481 by an employer or an organisation, whether or not proceedings have been brought for an offence under that section in respect of the contravention. (2) A person who alleges that he or she has been victimised may apply to the Industrial Court for an order under this section. (3) If the Industrial Court decides, on the balance of probabilities, that a person who makes such an application has been victimised, the Industrial Court may make an order for such one or more of the following as the Industrial Court considers appropriate with respect to the kind of victimisation concerned: (a) for reinstatement of the person in the employment of the employer concerned in the position that the person held immediately before dismissal or demotion by the employer or in a position no less favourable than that position; (b) for the employer concerned not to carry out a threat of dismissal or to cease making such a threat, or both; (c) for the employer concerned to promote the person or otherwise advance the person in his or her employment with the employer; (d) for the employer concerned not to carry out a threat to demote or otherwise injure the person in his or her employment or to cease making such a threat, or both; (e) for the employer to employ the person; (f) for payment, by the employer or organisation concerned, of the whole or any part of wages lost by the person; (g) for payment, by the employer or organisation concerned, of other damages in such sum as appears to the Industrial Court to be appropriate to compensate the person for other loss suffered by the person.
2. The 1991 Act was repealed by the Act. Section 213 was inserted into the Act in the terms in which it currently appears. There are three observations to make. First, there was no equivalent to s 213(1) in the 1991 Act. It must be concluded that Parliament would not have enacted such a provision unless it intended that it had work to do. As Ms Ters submitted, the construction of s 213 for which the Health Secretary contends would "set that amendment at naught".
3. Second and similarly, the chapeau to s 213(2) is substantially different to that of s 482(3) of the 1991 Act. The language of the latter closely aligns with the Health Secretary's preferred construction of s 213(2). However, in enacting s 213 the legislature departed from the language of s 482(3), which clearly delineated the orders available to the Commission. On the Health Secretary's case, the change in language was a distinction without a difference. Coupled with the inclusion of s 213(1) this is a difficult proposition to maintain.
4. Third, at [40] of the Decision (reproduced at [12] above), Commissioner Webster extracted a passage from the Second Reading Speech on the introduction of the Act. In that extract, the then Attorney General and Minister for Industrial Relations, the Honourable Jeffery Shaw, is quoted as saying that the "new provisions" would empower the Commission to "award a broad range of remedies designed to restore the employee to a position equivalent to that he or she would be in if the victimisation had not occurred".
5. The Second Reading Speech does not call for a narrow construction of s 213, much less one which largely ignores the changes introduced on the enactment of the Act. We do not read the reference to a "broad range of remedies" as "clearly [identifying] that the legislature intended that the Commission be empowered to make those orders contained in subs 213(2)" (Decision at [41]).

"In particular"

1. The words "in particular" in the chapeau to s 213(2) received considerable attention. We do not accept the Health Secretary's contention that these are words of limitation, to the effect that the subsection is to be regarded as a code regarding the Commission's powers under the Part. This would be to ignore the ordinary grammatical meaning of the words, even having regard to the context in which they appear. This is especially the case in light of the legislative history discussed above.
2. Section 213 finds a close parallel in s 266 of the Act, which is in these terms: 266 Enforcement (1) The Supreme Court may, by order, enforce the provisions of this Division on the application of a member, former member or prospective member of an industrial organisation affected by a contravention of this Division. (2) The Supreme Court may, in particular, for that purpose do any one or more of the following - (a) order the admission to membership of an applicant for membership of an industrial organisation (whether from the date of the order or an earlier date), (b) declare that a member of an industrial organisation ceased to be a member on a particular date, (c) order an industrial organisation to correct its register of members, (d) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (e) make consequential orders.
3. When it was first enacted, s 266 referred to "the Commission" rather than the "Supreme Court". The change was brought about on the enactment of the Industrial Relations Amendment (Industrial Court) Act 2016 (Sch 1, item [73]). It is important to recognise that as first enacted, ss 213 and 266 were very similar in their terms.
4. Prior to s 266 being amended to refer to the Supreme Court, its scope was considered by Boland J (as his Honour then was) in Transport Workers' Union of New South Wales v Patrick Murray [2008] NSWIRComm 6. His Honour there dealt with two preliminary questions of law, one of which was whether the Commission (sitting in those proceedings as the Commission in Court Session) had "a discretion under s 266 of the Act as to whether to grant relief and/or as to what relief may be granted": at [2]. He concluded: "58. …Section 266(1) provides that the Commission 'may, by order, enforce the provisions of this Division…'. Section 266(2) then sets out the type of orders that might be made; it is merely an elaboration of what may be done under s 266(1)." (Emphasis added)
5. His Honour's construction of s 266(2) resonates strongly with the interpretation of s 213(2) which Ms Ters urges us to accept.
6. The words "in particular" appear in other provisions of the Act, albeit in a different context. For example, s 213(4) is in these terms: (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to - (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought.
7. In Morawsky at [12], Commissioner Newall referred to the need for the Commission to be satisfied that a "sufficient reason" had been made out by the applicant. He remarked that this means that "the Commission must then decide whether or not to exercise its discretion in a matter of this kind on the balancing of a range of considerations, including those set out in subs 213(4) of the Act" (our emphasis).
8. The Commission has in other cases determined that s 213(4) does not set out an exhaustive list of factors to be considered by the Commission in out of time applications: Julie Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 at [39]; Transport Workers' Union of New South Wales (o/b John Power t/as John Power Pty Limited) v Forum Transport Pty Ltd [2011] NSWIRComm 1012 at [103].
9. Similar observations have been made by the Commission in respect of s 85(3) of the Act, which deals with the acceptance of unfair dismissal applications which have been filed out of time. It is relevantly in the same terms as s 213(4). We note A v B [2021] NSWIRComm 1058 at [74], quoted with approval in Basan v Commissioner of Police (No. 2) [2022] NSWIRComm 1033 at [16], and Katsantonis v Inner West Council [2017] NSWIRComm 1015 at [9], quoted with approval in Macdonald v Commissioner of Police [2017] NSWIRComm 1070 at [28].
10. These authorities are inconsistent with the words "in particular" being used in the Act as words of limitation.

Broader statutory context

1. Ms Ters drew our attention to the objects of the Act set out in s 3. These include the provision of a framework for the conduct of industrial relations that is fair and just (s 3(a)), preventing and eliminating discrimination in the workplace (s 3(f)) and encouraging and facilitating equitable, innovative and productive workplace relations (s 3(h)).
2. It is relevant to these objects that Ch 5 Pt 1 provides protection against victimisation. It was common ground that this is beneficial legislation. On the Health Secretary's case, the ability of the Commission to enforce the protection afforded by s 210 would be limited, if not piecemeal. This is reflected in the following exchange between the Full Bench and Mr A Britt of counsel, who appeared for the Health Secretary, during the hearing of the appeal: [1] "…What is being sought by the applicant is the withdrawal of the warning letter and if one then looks at the types of orders that may be made pursuant to s 213(2) none of them provide for the withdrawal of a warning letter. The warning letter had already been issued. If the warning letter was an act of victimisation, it had already been carried out. SLOAN C: But it subsists doesn't it? The warning letter remains on the employee's file. BRITT: It does. SLOAN C: To a point in time, it's a point in time in the sense that on a particular date it was issued, but if it was victimisation it subsists in the form of a blemish on the employee's record, doesn't it? BRITT: Well, it subsists on the employee's record as to whether it's a blemish or not, but it does subsist on the record. SLOAN C: But if the Commission were to find that it did amount to victimisation, that the issuing of the warning itself amounted to victimisation on your case there is nothing the Commission can do about that? BRITT: That is correct because it is - to the extent if one assumes it was an act of victimisation it's already occurred. Now, an order could be made that they not make any further such threat, but that's not what was sought in these proceedings. …"
3. The Health Secretary's preferred interpretation requires an unduly narrow construction of s 213(2). It is not consistent with the objects of the Act, or with the apparent intention of Parliament when enacting the provision. It is certainly not a construction that is calculated "to give the fullest relief which the fair meaning of [the section's] language will allow", to adopt the language of Isaacs J in Bull v Attorney-General referred to at [26] above.
4. On the hearing of the appeal, Ian Latham of counsel, who appeared for Ms Ters, submitted: [2] "Parliament might have intended that there be gaps in the victimisation regime, that might be true but it's really a question, I think just to put this case at its simplest, whether one adopts a broad and contextual view about 213(1) or not, if one adopts a very narrow technical view, as is shared by the Attorney, one would say that they're the only orders that can be made and that Parliament, in fact, intended that there are a number of people who are to be victimised who would have no remedy and that would be an unusual conclusion about a Parliament like ours."
5. For the reasons set out at [57]-[59] above, we agree with these submissions.
6. The broader statutory context also encompasses the language adopted by the legislature in other provisions of the Act to confer power on the Commission. Section 100C(2), for example, provides that the Commission may "decide to allow or disallow [a public sector disciplinary] appeal or make such other decision with respect to the appeal as it thinks fit". Section 100C(3) identifies particular action which the Commission may take, but is expressly stated to be without limitation to the generality of s 100C(2). Similarly, s 100D, which provides for particular orders the Commission may make with respect to payment of salary and continuity of employment, starts with the words "Without limiting section 100C…". Another example is to be found in s 368(2) of the Act.
7. The Health Secretary submitted that if Parliament had intended that s 213(2) operate as examples of the orders that might be made pursuant to s 213(1), it would be expected that a consistent approach would be taken to the drafting of the provision. That is, s 213(2) would be stated to apply without limitation to the power in s 213(1).
8. In response, Ms Ters drew our attention to other provisions of the Act in which the Commission's powers are set out in a manner which is clearly intended to be exhaustive. Examples include ss 89, 136 and 137. It was argued that had Parliament intended s 213(2) to be an exhaustive list of the Commission's powers, it could have made that clear in the same way.
9. An alternative approach to the conferral of power on the Commission is s 370(1) of the Act. That section empowers an industrial court (defined in s 364(1) to include the Commission when dealing with small claims proceedings under s 380) to make "such order as it considers just in the circumstances". Beyond the requirement to ensure an order is "just", there are no express limitations on this discretion.
10. Viewing the Act as a whole, it is not possible to discern a single or consistent approach to the conferral of power on the Commission that would allow inferences to be drawn regarding the legislative intention as a consequence of taking, or not taking, that approach. It follows that s 213 is to be considered on its terms.

The "work s 213(2) has to do"

1. Finally, it is necessary to address the Health Secretary's submission that if s 213(1) conferred plenary powers on the Commission, s 213(2) has no work to do.
2. The submission is addressed in large part by the observation of Boland J in Transport Workers' Union of New South Wales v Patrick Murray regarding the interpretation of s 266, referred to at [50] above. Section 213(2) is elaborative of what may be done under s 213(1).
3. As Mr Latham submitted: [3] "The submission that is set out in the written submissions is that they are particular examples of what the Commission might or might not do and just to deal with that for one moment. It would be unlikely that a Parliament would provide entirely unlimited powers to a Statutory Tribunal and in my submission what s 213(2) does is provide particular examples of orders that the Commission may make, and just to explain why that would be the case. These are all remedial orders. Orders for compensation or orders for protection and if, for example, an applicant in a victimisation case said, 'I wish to seek orders that civil penalties or criminal fines be imposed', the Commission would be entitled to say contextually they are not orders of the particular form that are set out in para 2 and, therefore, they're not the sort of orders that would fall within s 213(1), and one wouldn't need to go too far to think of the other sorts of orders that would also be contextually prohibited by that process, for example, an order for imprisonment or an order for capital punishment would clearly not fall within 213(1) on a contextual basis."
4. By way of amplification, we will consider a question posed during the hearing of the appeal by Anthony Britt of counsel, who appeared for the Health Secretary, namely: [4] "If 213(1) was a general power and (2) was examples, why would there be no restriction on an industrial organisation in subclause (2)(c) if the industrial organisation has somehow victimised the employee and as a result, the employee has lost remuneration."
5. We assume that the premise of the question is that the industrial organisation is not the employer for the purposes of s 213(2)(c).
6. The answer to this question rests on a reading of s 213(2)(c) in the context of s 213(2)(a) and (b), noting the consistency of this relief with that available under, for example, ss 89(3) and 100D(1) of the Act. An order that an industrial organisation pay an individual for remuneration that they have lost in their employment with a third party would be, for all intents and purposes, an award of damages. That is not of the kind of orders anticipated by s 213(2). This is a view tentatively expressed, but not determined, by Commissioner Murphy in Silsbury.

Conclusion

1. It is clear from the Decision that Commissioner Webster placed significant reliance on Morawsky. As a matter of comity a Commissioner would not lightly depart from the views expressed by another Commissioner. However, for the reasons set out above we consider that the opinion expressed at [21] in Morawsky was incorrect. In following that authority, Commissioner Webster was led into error.
2. We uphold ground 2 of the appeal.

Ground 1

1. Ground 1 of the appeal contends that Commissioner Webster erred in deciding that for the purposes of s 213(2)(e), a threat to victimise must be certain, imminent and unconditional. Ms Ters contends that in making that determination, the Commissioner conflated the test for interlocutory relief under s 89(7) with the test for victimisation under s 210.
2. We observe that at [46] of the Decision, Commissioner Webster summarised the contentions made by Ms Ters as to why the Warning constituted a threat of victimisation. At [49]-[50], the Commissioner expressed the view that there was no evidence before her to support those contentions. Nevertheless, the Commissioner found, in reliance on Baker v Australian Workers' Union [2005] NSWIRComm 1225 ("Baker") and Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 ("Barnier"), that a threat for the purposes of s 213(2)(e) needed to be certain, imminent and unconditional. Ground 1 of the appeal therefore raises questions as to the conditions necessary to enliven the particular instance of the Commission's powers identified by the legislature in s 213(2)(e).
3. In her written submissions on appeal, Ms Ters submitted: "24. It is also necessary in the alternative to deal with the subsidiary argument set out at [47] [of the Decision]. That argument was that the written warning constituted a threat to victimise under s 213(e). The Commissioner began by describing the ordinary meaning of threat at [47]. That would have clearly covered the warning letter particularly the meaning a thing which is deemed to have a negative impact on one's fortunes. 25. Nevertheless, the Commissioner held at [48] that in order to be a threat to victimise, the written warning needed to be a 'certain, imminent and unconditional' threat to victimise the applicant. 26. That phrase was derived from the decisions of Baker and Barnier. Those decisions describe the meaning of a threatened dismissal under s 89. Their correctness may be doubted. A threat of a dismissal in a year's time would not be imminent but it would still be a threat of dismissal. A notice of dismissal need not be unconditional to be effective: Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346 at [92]. 27. To discuss the issue by way of analogy, had the appellant been able to prove that the employer had threatened to demote her in a year's time unless she ceased lawful union activity, the reasoning of the Commissioner would have led to a conclusion that the threat was not imminent and was conditional. On the basis of either conclusion, that threat would not therefore fall within subsection (e). That conclusion would be absurd. 28. Leaving aside that broad caveat, it was not in any event appropriate to use that test in an application involving victimisation. The meaning of victimise is necessarily broader than the meaning of dismiss and the Commissioner fell into error by conflating the two. The Commissioner was in error to depart from the ordinary meaning of threat. 29. The real question that the Commissioner was required to answer was whether the warning could be seen as having a negative impact on the applicant's fortunes. The letter of warning could not be rationally seen in any other way." (Emphasis in original, footnotes omitted)
4. In her written submissions, the Health Secretary contended: "50. The Commission was correct in finding that it will be necessary for the Appellant to establish that the written warning constituted a threat to victimise her. There was no error in adopting what was meant by a threat in respect to a dismissal and to victimise and no good reason is advanced as to why threat means something in one part of the IR Act and another thing in another part of the IR Act. The issue is not what is meant by dismissal or victimise but rather by threat."
5. The Health Secretary has not fully grappled with the arguments advanced by Ms Ters.
6. The decision in Baker, on which significant reliance was placed in Barnier, concerned an application for an interim order under s 89(7). That section provides that in determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. In Baker, Commissioner Connor observed: 3. The remedy under s.89(7) for a threat of dismissal is injunctive and interim in nature. For the threat to be sufficient to ground that remedy, in my opinion, it must be certain, imminent and unconditional to give rise to a claim under Part 6. For instance, a threat to dismiss an employee for an offence if he commits the offence again is unlikely to give rise to a legitimate Part 6 application. In the decision of Schmidt J in Hill v. Director-General of the Department of Education (1998) 85 IR 201 an interim order was made under s.89(7) with her Honour commenting (at p.208) that: '…both parties accepted that it would not be in every case of threatened dismissal that the Commission would be moved to make interlocutory orders. That necessarily follows I think from the structure of the Act. Taking s.87 for instance, the exercise of the powers granted under S.89 involve the Commission first accepting the employee's claim that the dismissal was harsh, unreasonable and unjust. The exercise of the power under ss.136 and 137 will involve similar considerations. It follows that the Commission will not lightly interfere with an employer's contractual…right to terminate employment, without first having to come to the view that a particular dismissal or threatened dismissal has the impugned character…'"
7. Ms Ters called into question the correctness of the opinion expressed by Commissioner Connor in this passage. It was also questioned in X v Secretary, Department of Education (No 2) [2022] NSWIRComm 1092 at [41]. That decision is presently the subject of appeal, and it is not appropriate that we seek to resolve that controversy in the present matter. It is not necessary that we do so, as for the reasons which follow we do not consider that the analysis in Baker is apt in determining when the Commission might make an order under s 213(2)(e).
8. As can be seen from Baker at [3], reproduced above, the opinion expressed by Commissioner Connor as to the necessity for a threat of dismissal to be certain, imminent and unconditional was directed specifically towards the relief sought in those proceedings. The Commissioner was clearly considering what would be necessary to "ground" the remedy of interim injunctive relief under s 89(7). His enquiry was directed towards the conditions that would attract the Commission's intervention; he cannot properly to be said to have been expressing a view as to what would constitute a "threat" under the Act for all purposes.
9. This answers the Health Secretary's contentions. Even were it to be assumed that Baker, and Barnier in reliance on it, were correctly decided (about which we offer no views), there is a "good reason" why the word "threat" might have different meanings in different parts of the Act. This follows from the different types of relief the Commission is empowered to order, and the circumstances that will warrant the granting of that relief. The question is not what is meant by "threat" in an abstract sense, but specifically in the context of the relief sought by a party.
10. The Victimisation Application did not entail all of the considerations that would commonly accompany an application seeking relief under s 89(7). The Commission was not being asked to make injunctive and interim orders on an urgent basis. There is no obvious connection between the opinion expressed in Baker and the analysis required by the Commission in determining whether to make an order pursuant to s 213.
11. This can be demonstrated through the instance offered by Commissioner Connor in Baker at [3], that is "a threat to dismiss an employee for an offence if he commits the offence again". On one view, such a threat might be regarded as a warning; many warnings threaten dismissal in the event that misconduct is repeated or performance is not improved. The "threat" described by Commissioner Connor may well not rise to the level of a threatened dismissal attracting the Commission's powers under s 89(7). However, if the threat or warning is issued on one of the proscribed grounds in s 210, we do not see that there could be any impediment to the Commission intervening under s 213.
12. In her written submissions on appeal at par 28, reproduced above, Ms Ters offered another example where, applying the principles in Baker, an employee who had clearly been the subject of victimisation would be left without remedy. We accept Ms Ters' submissions that requiring a threat of victimisation, for the purposes of s 213(2)(e), to be certain, imminent and unconditional would unduly fetter the Commission's powers. We see no reason why words of limitation should be read into the provision.
13. At [50] of the Decision, Commissioner Webster stated that she was "not persuaded that the written warning [was] a 'certain, imminent and unconditional' threat to victimise the applicant, such that the order sought would be one that could be made pursuant to subs 213(2)(e)". It is apparent from this language that the Commissioner had determined that the provision required a threat of victimisation to the certain, imminent and unconditional. For the reasons set out above, we consider that the Commissioner fell into error in doing so.
14. We uphold ground 1 of the appeal.

Ground 5

1. Ground 5 of the appeal contends that Commissioner Webster erred in failing to provide adequate reasons in rejecting Ms Ters' argument that s 213(2)(b) empowered the Commission to grant the relief sought in the Victimisation Application.
2. The Victimisation Application did not specify the particular provisions of s 213 on which Ms Ters relied for the order she sought. However, the potential for Ms Ters to seek to rely on s 213(2)(b) was anticipated by the Health Secretary. In her submissions in support of the Motion, the Health Secretary set out why none of the provisions of s 213(2) was a source of power to make the order sought by Ms Ters. She submitted: "30. Section 213(2)(b), the withdrawal of a warning letter does not amount to the promotion or otherwise advancement of an employee in his or her employment. Further, even if the withdrawal of a warning letter could be characterised as this, the Applicant is not an employee of the Respondent and as such cannot be promoted or advanced by the Respondent."
3. At the hearing of the Motion on 11 April 2022, William Slattery, a solicitor employed by the solicitors for Ms Ters, submitted: "In any event, and as has been submitted as well, the background facts and circumstances in the proceedings, the applicant should not be denied a final hearing to ventilate those issues in accordance with the principles in General Steel to determine whether that 20 May 2021 letter is a further threat. It's a question of fact which ought to be determined at a final hearing, not at the interlocutory stage of proceedings. In any event, the Commission has the power under s 213 para (b) and s 213 para (g) to grant the relief which is sought by the respondent [sic - presumably respondent on the Motion] in the proceedings."
4. Mr Britt, who appeared on the Motion for the Health Secretary, submitted: "In my learned friend's submissions today he sought first to rely on para (b) 'order the employer to promote or otherwise advance an employee in his or her employment'. When one goes back to the application, that's not the order which is being sought in this application. The order that is being sought is to withdraw the written warning. There is nothing being sought to promote or otherwise advance an employee in his or her employment."
5. The position taken by the Health Secretary in respect of the availability of s 213(2)(b) rested on two premises. First, the withdrawal of a warning could not constitute the promotion or advancement of an employee in their employment, within the meaning of the provision. Second, even could it be so characterised, the order could not be made as Ms Ters was not relevantly an employee of the Health Secretary.
6. At [45] of the Decision (reproduced above) Commissioner Webster stated that that there was "no basis to argue that an order sought by the applicant to remove the written warning is an order that the employer, 'promote or otherwise advance an employee in his or her employment'". There are two observations to make.
7. First, neither of the parties explored why the withdrawal of the Warning might or might not constitute the "advancement" of an employee in his or her employment. Each party simply made assertions: Ms Ters contended simply that s 213(2)(b) was available; the Health Secretary contended that the withdrawal of a warning could not constitute the promotion or advancement of an employee in their employment. Neither party offered any arguments in support of their respective contentions.
8. Despite the lack of assistance she received from the parties, Commissioner Webster determined the question but did not explain why. This conclusion has significance beyond the circumstances of this case. It operates to delimit the scope of s 213(2)(b).
9. In the context of the reasons Ms Ters advanced as to why the Warning constituted a threat of victimisation, there may be an argument as to whether the removal of the Warning might constitute the "advancement" of an employee in his or her employment. We are not necessarily suggesting that such is the case, but in the context of an interlocutory motion for dismissal of the proceedings, the fact that the point is arguable has significance.
10. Second, in her submissions on the Motion, the Health Secretary left open, at least in a theoretical sense, the possibility that the withdrawal of a warning letter may fall within s 213(2)(b), but contended that the order could not be made as Ms Ters was no longer relevantly her employee. Given that Commissioner Webster rejected the Health Secretary's argument that Ms Ters was not relevantly an "employee" for the purposes of s 213, it raises the question as to whether the second premise on which the Health Secretary relied could properly be maintained. This was not addressed in the Decision.
11. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA, with whom Macfarlan JA agreed, observed: "152. While, as Basten JA explained in Lo v CCSR, '[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence', such an inference should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. Indeed, it has been said that '[i]t is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal's] attention.' The Tribunal is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with." (Footnotes omitted)
12. In the same case, Emmett AJA observed: "227. While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration."
13. We also have regard, without reproducing them, to the observations of the Full Bench in Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 at [30]-[40], [48] and [59]-[63].
14. In Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 the Full Bench observed: "22. We accept that first instance decision making under the Act, particularly given the obligations placed on the Commission under s 162(2)(a) read together with ss 56 to 58 of the Civil Procedure Act 2005, is properly exercised quickly. That is arguably more so in relation to applications under s 84 where delay in determining a matter may well act to restrict the exercise of the Commission's discretion in relation to remedy. 23. As a general approach, first instance decisions which are rendered promptly and provide adequate reasons, even if every single aspect of the matter to be determined is not canvassed in detail, are preferable to lengthy decisions that take a considerable time to produce. And it is not conducive to quick and effective first instance decision making and the satisfaction of the Commission's obligations under the Act to conduct an examination of decisions on appeal which requires from a first instance decision maker an exhaustive attention to every argument raised in the proceedings."
15. In this case, the availability of s 213(2)(b) to provide the remedy sought by Ms Ters was in play, albeit not explored in any depth by either party. The Commissioner's conclusion that it was not so available necessarily had a bearing on her determinations that "the Victimisation Application does not disclose a cause of action that could be successful" (at [50] of the Decision) and that it did not "disclose a reasonable cause of action" (at [51]). Moreover, it operates as a pronouncement as to the scope of relief contemplated by s 213(2)(b), being an instance of the relief identified by Parliament as being available under s 213(1). In these circumstances, we consider that it was incumbent on the Commissioner to explain why she had reached the conclusion that an order that the Health Secretary withdraw the Warning was not one which would "promote or otherwise advance an employee in his or her employment".
16. We uphold ground 5 of the appeal.

Ground 3

1. Ground 3 of the appeal contends that the Commissioner erred by determining that the Victimisation Application did not disclose a reasonable cause of action. In large part, this ground is addressed by our findings in respect of grounds 1, 2 and 5.
2. The process of the Commissioner's reasoning set out at [21] above demonstrates a logical sequence, with each step following the determination of the previous one. The conclusion reached by the Commissioner that the Victimisation Application did not disclose a reasonable cause of action inexorably followed from the determinations she had made earlier.
3. For the reasons set out in our discussion concerning appeal grounds 1, 2 and 5 above, we consider that the premise of the Commissioner's ultimate conclusion was wrong.
4. Ms Ters raised an additional argument, to the effect that at [49] of the Decision Commissioner Webster adopted a false dichotomy between the Warning comprising a threat of victimisation and it constituting an act of victimisation in itself. Ms Ters contended that the Commissioner failed to recognise that the Warning might be both.
5. A balanced reading of [49]-[50] of the Decision is that Commissioner Webster found that Ms Ters had failed to present a case - either in the Victimisation Application or in evidence - that the Warning constituted a threat of victimisation. Her observation in the last sentence of [49] is properly to be regarded as highlighting that the Victimisation Application asserted only that the Warning constituted an act of victimisation, not that it was also a threat of future victimisation.
6. Having regard to that consideration, and the determinations that we have otherwise made in respect of the appeal, we do not consider it necessary to further explore this argument.
7. We uphold appeal ground 3.

Other orders sought by Ms Ters

1. In the Application for Leave to Appeal and Appeal Ms Ters sought an order, should the appeal be upheld, that the matter be remitted to a member of the Commission other than Commissioner Webster for determination. No reasons were advanced by Ms Ters as to why the Full Bench would depart from the usual practice of remitting the matter to the member at first instance. The file will be returned to Commissioner Webster.
2. Ms Ters also sought an order that the Health Secretary pay her costs of the appeal. This is not an order that the Full Bench is inclined to make in the absence of hearing from the parties specifically on that issue. We will make directions allowing Ms Ters to make an application for costs, if she is so inclined.

Orders and directions of the full bench

1. The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Commissioner Webster of 4 May 2022, that the application in matter 2021/179129 be dismissed, is quashed. 4. The Health Secretary's notice of motion filed 20 January 2022 is dismissed. 5. The file in matter 2021/179129 will be returned to Commissioner Webster for determination in accordance with this decision.
2. The Full Bench makes the following directions: 1. Any party wishing to make an application for costs is by 4.00pm on Friday, 17 February 2023 to file and serve: 1. an outline of submissions of no more than 5 pages setting out the basis on which costs are sought; and 2. any evidence in support of the application, in accordance with Practice Note 32. 1. If no application is received pursuant to direction (1), the file will be closed.

Endnotes

1. Tcpt, 6 September 2022 at p 13(2-27)
2. ibid. at p 11(4-11)
3. ibid. at p 19(28-42)
4. ibid. at p 12(23-26)

Amendments 06 February 2023 - Correction of typographical error in [3] 20 February 2023 - Correction made to reflect correct year in Paragraph 115(1). 20 July 2023 - 20 July 2023 - Correction of typographical errors at [37] and [76]. 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 July 2023