Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales

The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the Union) appealed to the Court of Appeal of New South Wales against decisions of the Industrial Commission of New South Wales. The dispute concerned the validity of a regulation that purported to prevent the Industrial Commission from dealing with certain matters, specifically the Union's application to vary the Crown Employees' (School Administrative and Support Staff) Award to include provisions for redundancy and severance pay.

The central legal issue before the Court of Appeal was whether regulation 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) was valid. This regulation stated that the Industrial Relations Act 1996 (NSW) did not apply to "policies regarding the management of excess public sector employees." The Union argued that this regulation was beyond the power conferred by the enabling legislation and was therefore invalid, as it effectively removed the jurisdiction of the Industrial Commission to hear and determine their award variation application.

The Court of Appeal reasoned that the enabling legislation, the Industrial Relations Act 1996 (NSW), conferred jurisdiction on the Industrial Commission to deal with conditions of employment, including redundancy and severance pay. Regulation 6(1)(f) was interpreted not as a policy on the management of excess employees, but as a prohibition on the Industrial Commission exercising its statutory jurisdiction. The Court applied the principle that a regulation cannot be made to destroy the jurisdiction conferred by the enabling Act, particularly when the regulation is not a genuine policy but a means of removing the power to regulate. The Court found that the regulation was an invalid exercise of the regulation-making power, as it was inconsistent with the objects and provisions of the Industrial Relations Act 1996 (NSW).

Consequently, the Court of Appeal declared regulation 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) to be invalid. The Court quashed the decisions of the Industrial Commission and its Full Bench that had dismissed the Union's variation application. The matter was remitted to a member of the Commission to be determined according to law.