The Secretary of Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

EX TEMPORE DECISION 1The Secretary of Treasury (the applicant) has applied under s 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 (the Act) for orders directed at averting a proposed four-hour "stop work" organised by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the respondent) and scheduled to take place on Monday, 8 October 2012. 2The background to the application is set out in the documentary material relied upon by the applicant on the application. 3The proposed "stop work" for 8 October 2012 arises in connection with four matters outlined by the respondent in a bulletin dated 27 April 2012, which are extracted below: Since coming to office the Government has: imposed a cap on pay rises, including passing legislation limiting the role of the industrial umpire, NSW Industrial Relations Commission. This latter part has been challenged in the High Court by the PSA. The hearing is on September 5. Ordered agencies to cut jobs - 5,000 were ordered in their first budget, and 10,000 jobs in the latest budget (based on a 1.2% cut in labour costs). Cuts across the service are being announced on a regular drip-feed of information. Lodged a claim in the NSW Industrial Relations Commission to cut conditions and allowances, some of which will affect all members and others will unfairly impact on groups of members. And today they have told the PSA and the Commission that they will be lodging awards to strip another hundred public sector conditions awards. This will include awards covering other unions as well as the other PSA conditions awards. 4In oral submissions, the applicant explained that the third dot point refers to an application currently before the Commission for a new "Conditions Award" entitled, Crown Employees (Public Service Conditions of Employment) Award 2012. That application was lodged by the Director-General of the Department of Premier and Cabinet. 5The applicant first notified a dispute late on 28 September 2012 to the Commission in relation to the proposed "stop work", which came before his Honour Justice Haylen on 2 October 2012. During those proceedings, it emerged that the respondent had been invited by letter from the Treasurer and Minister for Industrial Relations to meet and discuss various matters, including concerns regarding the "Conditions Award". The meeting was later scheduled to take place on 3 October 2012. 6The parties were unable to reach agreement on the matters raised before Haylen J. At the conclusion of the proceedings, his Honour issued a recommendation in the following terms: In all the circumstances it is appropriate that the Commission make a recommendation that the Association postpone the industrial action for 8 October 2012 and proceed to take up the offer of the Minister for further discussions. 7On 3 October 2012 Haylen J issued a Certificate of Attempted Conciliation. 8On the same day, the respondent met with the Minister, however, the issues raised for discussion were not resolved. It would appear that during the meeting the industrial action planned for 8 October 2012 was not the subject of the discussion. 9On 4 October 2012, the applicant wrote to the respondent requesting confirmation that the proposed "stop work" for 8 October 2012 had been postponed. The respondent replied on the same day as follows: I refer to your letter dated 4th October, 2012. As you will be aware, the matter of industrial action planned for 8th October 2012 was not discussed at yesterday's meeting with the Treasurer, the Hon. Mike Baird MP. You will also be aware that the Treasurer gave an undertaking to the Association representatives present that he would be back in touch regarding matters to do with the Government's Conditions Award application. The Association looks forward to the Treasurer's response, and following receipt of such response will then be in a position to decide on the postponement or otherwise of the industrial action. 10Although the respondent's letter suggested in terms, at least at that stage, that no final decision had been made on whether to proceed with the "stop work" on 8 October 2012, the respondent, at about 5.00pm on 4 October, issued another Bulletin to its members confirming that the "stop work" would proceed as planned. The Bulletin advised its members: The PSA met with the Minister for Industrial Relations last night. That meeting led to no resolution of the issues between the PSA and the Government. The action on Monday 8th October is still proceeding, unless you hear otherwise from the Executive. Monday's stop work was called to escalate our campaign because of the Government's application to remove conditions from members, but it also continues the ongoing campaign opposing the wage cap, job cuts and the other attacks on our members and public sector workers generally. 11On the present application, the parties each advanced several factors for the Commission's consideration. Both parties accepted that a discretion resides in the Commission to make appropriate orders under s 136(1)(c) and s 137(1)(a) of the Act. 12The Commission has carefully considered the parties' submissions, as well as the affidavit evidence and other material relied upon by the applicant. The parties were informed at the conclusion of proceedings that the Commission intended to grant the first Order sought by the applicant, which directs the respondent to refrain from taking the proposed industrial action on 8 October 2012. That Order, as well as accompanying directions, was prepared and made available to the parties as soon as possible after the conclusion of the proceedings in order to facilitate the prompt notification of the Order to those persons affected. Further orders sought (Orders A2 and A3) were directed to ensuring that no further industrial action would be taken by the respondent for a period of six months. The Commission declined to make those further orders on the basis that there was no evidence, or no sufficient evidence, to justify the making of those further Orders. Instead, the evidence before the Commission on the application appears to be confined to matters relevant to the proposed four-hour "stop work" scheduled to take place on 8 October 2012. 13In deciding to grant the first Order sought by the applicant, a primary factor which the Commission takes into account concerns the inevitable significant disruption to public services across the State if the "stop work" were to proceed as planned. The applicant's application sets out in short form the likely impact on the provision of services: The stop work meeting will impact on the provision of services to the public including essential services; the likely effects of the stop work meeting will include court closures particularly in regional locations, prisoners locked in their cells for the day, delays to incident response by National Parks and Environment Protection Authority staff (such as wildfire, search and rescue, chemical spills) and interruption to services to the public (including phone and counter enquiries). 14An affidavit sworn on 2 October 2012 by Glenn Bacic for the applicant sets out in more detail the impact on services, including essential services: a. Corrective Services and Courts i. Inmates will not be transported to Court, and the Corrective Services NSW will attempt to make alternative arrangements where inmates are required at District or Supreme Court trials; ii. AVL appearances at Court will not be facilitated, except for inmates located at Parklea and Junee Correctional Centres; iii. inmates locked in their cells for the day or released for shorter periods of time than usual; iv. no access for inmates to programs, education or work for the day if facilitators, teachers and overseers are absent; v. disruption or difficulty for lawyers visiting inmates; vi. absence of Probation and Parole Court duty officers; b. Family and Community Services i. Likely closure of front counters at smaller Community Service Centres (CSCs). Skeleton staffing at CSCs will be maintained (Helpline and critical service delivery), but this is expected to lead to certain backlogs and overtime to clear those backlogs. c. Ageing Disability and Home Care i. Engagement of agency staff, at additional cost to support client supervision ratios. d. National Parks i. delays to incident response by National Parks and Environment Protection Authority staff (such as, wildfire, search and rescue, chemical spills); ii. loss of revenue from National Parks gate collection fees. e. Fair Trading - shopfronts would not be able to serve customers. f. Public Works - i. unable to arrange urgent maintenance for schools which resume for term 4 on that day. ii. interruption to services to the public (including phone and counter enquiries). 15It is also relevant that the respondent proposes to proceed with the "stop work" in the face of Haylen J's recommendation made on 2 October that the industrial action be postponed and that the respondent take up the Minister's offer for further discussion. Although representatives of the respondent met with the Minister on 3 October 2012 there was no discussion about the proposed "stop work" scheduled for 8 October 2012. 16The respondent reminded the Commission that the taking of strike action by an organisation and its members is not in itself unlawful. The respondent also brought to the Commission's attention that the applicant had been on notice since 27 August 2012 of the respondent's intention to proceed with the "stop work" on 8 October 2012, yet the Dispute Notification was not filed by the applicant until 28 September 2012. According to the respondent, "the contraction of time is not at our feet", and the applicant could have filed its application at an earlier time, thereby affording the parties, and the Commission, more time to address the issues. 17The applicant, when queried why the application was not filed until 28 September 2012, proffered an explanation that the Minister was only appointed on 12 September 2012 and needed a degree of time to "get up to speed in respect of the issues". It was conceded by the applicant that its explanation did not address the role of the former Minister prior to that date. 18The respondent also submitted that it was unaware of any previous applications for dispute orders brought against it involving a general stoppage of the type contemplated on 8 October 2012. The applicant similarly could not recall any such applications being brought involving proposed industrial action by the respondent. 19Although the factors relied upon by the respondent are relevant to the Commission's consideration, in particular the applicant's late application (in relation to which the Commission finds the explanation somewhat unsatisfactory) they are not sufficiently persuasive to tip the balance against granting the first Order sought in the application. The Commission has been most persuaded by the prospect of substantial disruption to services, including essential services, should the proposed "stop work" proceed on 8 October 2012. In the Commission's view, for the reasons given, it is in the public interest that the Order and Directions in the form provided earlier to the parties, be granted. 20For convenience, the Order and accompanying Directions are set out below: ORDER