Well, we told you so. In October last year we predicted “NSW Government to shut down Industrial Relations Commission”. None of this Nostradamus stuff or crystal ball-gazing for us, we had reliable sources and as close as a confirmation as you can get from a Government busy trying to keep it all quiet.
We predicted that the integrated roles of the Industrial Relations Commission and the Industrial Court would be split - with the Industrial Court being folded in to the NSW Supreme Court - a court more familiar with commercial and criminal matters and no real experience in employment and industrial relations. We also predicted that the remainder of the Industrial Relations Commission, what they like to describe as the “non-judicial functions”, like settling disputes, would be transferred off to NCAT.
But, for reasons we couldn’t disclose, this didn’t happen at the end of the year. We still can’t disclose them but on 23 August the Government, through a joint initiative of The Treasury and NSW Justice distributed a “brief to stakeholders” titled “integration of the Industrial Court with the NSW Supreme Court.” All we got wrong was the timing.
But the proposal to split the Industrial Court and slip it into the Common Law Division of the Supreme Court was not accompanied by a proposal to stick the remaining roles of the Industrial Relations Commission into NCAT. Instead, on the face of it, the Government is proposing the addition of another Commissioner and a tribunal which will be run now by a Chief Commissioner. That will be five commissioners, including the chief.
But, like all takeovers of businesses, once the asset-stripping begins, where does it end? Once the Court is gone, the Commission will remain with only five members quite capable of being bundled up, both physically and metaphorically, and sent anywhere.
It’s no coincidence that the Government this week announced a facelift for the Macquarie Street precinct which, at the same time, ropes in those beautiful sandstone buildings in Bridge Street - including the building occupied by the NSW Governor and the Industrial Relations Commission on the corner of Macquarie and Bridge and the offices of the Department of Education and the Department of Planning running down the hill.
Commercial real estate interests, hoteliers and others must be drooling at the prospect of getting their hands on these magnificent Victorian buildings. Maybe even bloody Packer. We know that the Government has already measured up the premises with a potential move of some cabinet offices but, as with everything else with the Baird Coalition Government, commercial interests will win out.
The Departments of Justice and NSW Industrial Relations will consult with key industry stakeholders about the proposed changes. Consultation closes on 5 September, so anyone with an interest in the smashing of the integrated approach to employment management in New South Wales had better be quick. Here is a link to the “Brief to Stakeholders” for those who may be interested.
We will put in a submission. We are quite used to making submissions to Government that invariably fail to change Government plans, but it’s important that history shows that we did.
The NSW Industrial Relations Commission has operated seamlessly since 1901 - a respected and venerable institution with a proud history of protecting and advancing the rights of workers and employees generally. The Commission over that century and more has made a major contribution through test cases prosecuted by the trade union movement to improving standard conditions of employment and entitlements which have regularly flowed into the Commonwealth jurisdiction and the other states. Employment conditions in Australia would not be the same without that century of activism.
The detail of the proposal will see the current President of the IRC Justice Walton transfer across to the Supreme Court in a way which protects his salary as a personal occupant only and his seniority from the date he was appointed a judge - a transitional arrangement that will be the envy of many involved in mergers, acquisitions and restructures.
While most of our work is in the Commission, we have used the Industrial Court on a number of occasions. There was always an attraction in the integration within one tribunal of all those aspects of employment. We have filed successful applications for prosecutions of Marrickville and Bankstown for breaching provisions of the Award and we have filed successful section 106 Unfair Contract applications at Bankstown and Mid-Western. And all the time, the Judges within the Court were highly skilled and experienced specialist industrial relations practitioners.
We can’t be confident we’ll get that level of experience and expertise in the Supreme Court where any judge can be appointed to deal with these employment matters. The Sydney Morning Herald covered this story on 23 August, quoted one senior associate in a big industrial relations practice as saying that she was “concerned, access to justice would diminish under the new arrangement”. She believed that the Supreme Court was “more intimidating and costly” to start litigation. She’s right.
She was also right when she observed “I think there is a psychological barrier just associated with the name of the Supreme Court”. And she picked up the issue of the low-fee or no-fee jurisdiction of the Industrial Relations Court and the “comparatively high fees” of the Supreme Court. Pursuing prosecutions of councils and unfair contract applications could now be much, much more expensive.
Unions NSW Secretary Mark Morey
Unions NSW Secretary Mark Morey said the Baird Government was removing an institution that specialises in industrial relations law. “Instead we will now see industrial matters dealt with by judges who are more used to dealing with commercial or criminal matters” and that “it will be slower, more unwieldy and, ultimately, more costly.”
And in what may prove to be a remarkably accurate prediction, NSW Greens MP David Shoebridge, while lamenting this would affect public servants seeking legal remedies to workplace disputes because this was “killing a specialist industrial tribunal through death by 1000 cuts”, said “I think it’s time we had a new employment workers compensation and employment discrimination tribunal as a division of NCAT (NSW Civil and Administrative Tribunal).”
Adam Searle on a happier day
The NSW Opposition shadow for industrial relations Adam Searle said the change was “just another step towards diminishing an important institution that has protected working people in this state for over a century. The Supreme Court and its processes are more formal and legalistic and intimidating. Abolishing the Industrial Court and placing its work into the Supreme Court will make justice less accessible to regular working people.”
The immediate impact on us is that some industrial disputes are held by the President and this won’t continue. The IRC President also managed the negotiations of the 2014 Local Government State Award and the President has retained an application before the Commission for the 2017 Award where a timetable was set. This will need to be referred to one of the commissioners.
Our predictions last year were met with significant derision. Mostly from those who would like to distract us from revealing something that was about to happen about which none of us, and certainly none of the key stakeholders now being consulted, had been briefed. Bagged as rumour-mongers and Nostradamus, sometimes the rumour mongers and those who predict the future do get it right.
