Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2) CaseBase | [2025] NSWIRComm 1087 | BC202516229 WRIGHT v INDUSTRIAL RELATIONS SECRETARY (O/B DEPT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT) (No 2) BC202516229 Unreported Judgments NSW · 365 Paragraphs Industrial Relations Commission of New South Wales Commissioner Howell 2024/00411191 10–12 June, 4 August, 14 October 2025 Wright v Industrial Relations Secretary o/b Department of Primary Industries and Regional Development (No 2) [2025] NSWIRCOMM 1087 Headnotes EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Applicant a member, executive member of a vocational branch, and vocational branch delegate of his union (the PSA) — PSA engaged in long running campaign to change laws with respect to fisheries management to improve safety of fisheries enforcement officers when at work — In his capacity as executive member of vocational branch and vocational branch delegate the Applicant participated in a campaign (including industrial action in the form of work bans, and a concurrent media comments) and participating in proceedings before the Commission by attending to provide instructions in conciliation and later being a witness — Applicant provided statements to media as part of campaign in his own time at the request of and in conjunction with senior officials of the PSA — Applicant did not obtain approval from Respondent before making media statements — Denial of higher duties opportunity, and informal warning issued to Applicant — Consideration of whether actions amount to a detriment sufficient to ground a finding of victimisation — Actions found to be sufficiently detrimental to ground a finding of victimisation — Respondent claimed detriments imposed because decision maker thought Applicant had breached the Respondent’s Code of Conduct and Ethics by making unapproved media statements — Consideration of operation of s 210(1)(a), (g), (h) and (j) of the IR Act — Whether s 210(1)(a) protects status as or activities as a delegate — Meaning of “participates” in s 210(1)(g) of the IR Act — Attending conciliation to provide instructions in manner typical of union delegate is participation in proceedings — Meaning of public or political activity in s 210(1)(h) of the IR Act — Meaning of “performance of the employee’s duties” in s 210(1)(h) of the IR Act — Applicant’s media statements made in own time at the request of and as a part of a campaign being run by his union to secure change in law to enhance safety or workers when at work a public or political activity for purpose of s 210(1)(h) — Media statements did not interfere with the performance of the employee’s duties — Consideration of the ‘reverse onus’ in s 210(2) of the IR Act in circumstances where decision maker did not give evidence — Presumption that detrimental action taken for proscribed reason not displaced — Finding Respondent victimised the Applicant — Relief granted. In September 2024 the PSA imposed work bans, restricting the capacity of fisheries officers employed by the Respondent from undertaking certain inspections of vessels involved in the commercial fishing industry. The work bans resulted in the notification of an industrial dispute to the Industrial Relations Commission. In accordance with the requirements of the Industrial Relations Act 1996, that dispute was listed for a compulsory conference. The Applicant, a delegate and executive member of a vocational branch of the PSA (known as the Fisheries Officer Vocational Branch, or FOVB), attended the compulsory conference proceedings for the purpose of providing instructions to the PSA’s solicitor and counsel. The matter did not resolve in conference. The Applicant Page 2 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 subsequently gave evidence in arbitration proceedings before the Commission, in which the Department sought dispute orders. The work bans were imposed on 11 September 2024. The dispute was notified on 23 September 2024. The compulsory conference occurred on 25 September 2024. The PSA issued a media release in connection with the work bans and the proceedings before the Commission, containing a number of quotes from the Assistant General Secretary. The Assistant General Secretary also participated in a number of interviews with journalists. At the request of the PSA and in his own time, the Applicant, in his role as PSA delegate and elected spokesperson for the FOVB, also participated in some interviews with journalists. Media articles containing commentary attributed to the Applicant and/or the Assistant General Secretary were published over 29 and 30 September 2024, and again on 8 October 2024. On 8 October 2024, the Director of Fisheries Compliance (the head of the area in which the Applicant worked), sent an email to the Applicant couched in terms reflecting a counselling and reprimand (albeit expressly noting ”This email does not serve as an official warning”). The following day, the Director issued an instruction denying the Applicant an opportunity to undertake a previously (albeit informally) arranged higher duties position for a period of 3 weeks. The Applicant alleged the Director had unlawfully victimised him because of his status as an elected workplace delegate (contrary to s 210(1)(a) of the IR Act), because he had participated in proceedings in relation to an industrial matter (contrary to s 210(1)(g) of the IR Act), because he had engaged in a public or political activity that did not interfere with the performance of his duties (contrary to s 210(1)(h) of the IR Act), and/or because he had made complaints about a workplace matter that he considered was a risk to health or unsafe (contrary to s 210(1)(j) of the IR Act). The Respondent argued the actions towards the Applicant were not sufficiently detrimental to the Applicant to ground a finding of victimisation, that the Applicant had not established the factual elements necessary for the protected characteristic in s 210(1)(a), (g), (h) or (j), and otherwise that the detriments were imposed because the Director believed the Applicant had breached the applicable Code of Conduct and Ethics (and other policies) by making comments in the media about the Department’s activities without approval. The Commission found the detriments imposed on the Applicant by the Director were sufficient to ground a finding of victimisation, and that the Applicant had established the factual elements for three of the four protected characteristics relied upon: ss 210(1)(a), (g), and (h) of the IR Act. In those circumstances, the rebuttable presumption created by s 210(2) of the IR Act was enlivened. The Director did not give evidence in the proceedings (see Joseph Wright v Industrial Relations Secretary (on behalf of the dept of Primary Industries and Regional Development) [2025] NSWIRComm 1035). Having regard to the whole of the evidence, the Respondent failed to satisfy the Commission that the alleged protected characteristics were not a substantial and operative cause of the detriments imposed by the Respondent (via the decisions and actions of the Director). The Commission found the Respondent, via the decisions and actions of the Director, had unlawfully victimised the Applicant in contravention of s 210 and ordered relief under s 213 of the IR Act. (NSW) Industrial Relations Act 1996 ss 210(1)(a), (g), (h), and (j), 210(2) (NSW) Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (CTH) Fair Work Act 2009 (VIC) Equal Opportunity Act 2010 (ACT) Discrimination Act 1991 (WA) Equal Opportunity Act 1984 (QLD) Anti-Discrimination Act 1991 Page 3 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 (TAS) Anti-Discrimination Act 1988 (NT) Anti-Discrimination Act 1992 Alam v National Australia Bank (2021) 288 FCR 301 ; ALAEA v International Aviation Services Assistance (2011) 193 FCR 526 ; Australian Workers Union v BlueScope Steel Ltd [2006] NSWIRComm 1029 ; Barclay v Lake George Mines Pty Ltd (1949) 48 AR(NSW) 557 ; Basan v Cmr of Police (No 3) [2023] NSWIRComm 1028 ; Bradshaw v McEwans (1951) ALR 1 ; Buchanan v Fire and Rescue NSW [2020] NSWIRComm 1019 ; Cairns Regional Council v Carey [2012] QCATA 150 ; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 ; Comcare v Banerji (2019) 267 CLR 373 ; Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 ; Construction, Forestry, Mining and Energy Union v Quirk [2023] FCAFC 163; 300 FCR 171 ; CPS Management v Equal Opportunity Board [1991] 2 VR 107 ; Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 ; Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 ; Dowling v Fairfax Media Publications (2008) 176 IR 346 ; Finance Sector Union v ANZ Banking Group (2002) 120 FCR 170 ; Fire Brigade Employees Union (NSW) v Fire and Rescue (NSW) (2016) 259 IR 252 ; Fire Brigade Employees’ Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 ; General Motors Holdings v Bowling (1976) 51 ALJR 235 ; Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 ; Industrial Relations Secretary (on behalf of the Dept of Primary Industries and Regional Development) v Public Service Assn and Professional Officers’ Assn Amalgamated Union of New South Wales (Work Bans by Fisheries Officers) [2024] NSWIRComm 1065 ; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 ; Jaggi v Health Secretary (in respect of Western Sydney Local Health District) [2022] NSWIRComm 1032 ; Janssen v SWSLHD [2018] NSWIRComm 1022 ; KI v Retail Store [2023] TASCAT 10 ; Kidman v Casino Canberra Ltd [2020] ACAT 1250 ; Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 ; LaRoche v President and Members of the Equal Opportunity Board (1991) EOC 92-361 ; Lattouf v Australian Broadcasting Corp (No 2) (2025) 341 IR 105 ; Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805 ; Nevil Abolish Child Support v Telstra Corp Ltd [1997] VADT 44 ; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (“Berrima Gaol”) (2016) 260 CLR 232 ; Paula Lee v Ausgrid (No 6) [2013] NSWIRComm 62 ; PSA v Cmr of Police [2025] NSWSC 624 ; PSA v Teterycz [1997] NSWIRComm 159 ; Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Cmr of Police [2024] NSWIRComm 1001 ; Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Cmr of Police [2024] NSWIRComm 1062 ; Qantas Airways Ltd v Transport Workers Union of Australia (2022) 292 FCR 34 ; Quirk v Construction, Forestry, Mining and Energy Union [2021] 398 ALR 39 ; Re Dispute at Broken Hill Pty Ltd Steel Works, Newcastle [1968] AR 48 ; Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460 ; Shand v Secretary, Dept of Transport (2018) 282 IR 200 ; Simanjovska v Roads and Traffic Authority of New South Wales (2006) 157 IR 40 ; Ters v Health Secretary (in respect of the South Western Sydney Local Health District) (2023) 323 IR 120 ; Twentieth Superpace Nominees Pty Ltd v TWU (2006) 156 IR 323 ; V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355 ; Wright v Industrial Relations Secretary (on behalf of the Dept of Primary Industries and Regional Development) [2025] NSWIRComm 1035, cited Commissioner Howell. [1] On 5 November 2024, Mr Joseph Wright (the Applicant), a Supervising Fisheries Officer (an SFO) within the Fisheries Compliance Unit of the Department of Primary Industries and Regional Development (respectively, the FCU and the Department), filed an application under s 213 of the Industrial Relations Act 1996(the IR Act), seeking relief against alleged victimisation in contravention of prohibitions contained in s 210 of the IR Act. [2] The resolution of these proceedings was somewhat protracted. The initial hearing, at which the Commission received the evidence, took place in early June 2025. At the conclusion of those hearings the parties requested further Conciliation, and were assisted in that regard by Commissioner Muir. The matter did not resolve. Submissions were heard on 4 August 2025, and post hearing the final materials were received on 14 August 2025, following which decision was reserved. [3] Despite the length of these reasons, there is very little factual dispute as to what occurred. Broadly described, the central allegation in these proceedings is that the Respondent, through the decisions of its Director of Fisheries Compliance, Dr Andrew Moriarty, unlawfully victimised the Applicant for his role in a campaign (involving industrial action in the form of work bans and media commentary) being advanced by the Public Service Association and Page 4 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 Professional Officers’ Association Amalgamated Union of New South Wales (the PSA), for legislative and policy reform to improve the safety of the officers of the FCU when at work (the PSA FCU Campaign). [4] The detrimental treatment alleged to constitute unlawful victimisation was: (1) The denial of an opportunity to act in a more senior leadership position (attracting a higher rate of pay), for a period of approximately 3 weeks commencing late November 2024; and (2) A written warning from Dr Moriarty in an email dated 8 October 2024. [5] I am satisfied that the Respondent did unlawfully victimise the Applicant as alleged. For the reasons that follow, I am satisfied the Applicant had a characteristic protected by s 210 of the IR Act (indeed three such characteristics), that each of the actions relied upon are detrimental treatment sufficient to ground a finding of victimisation, and I am not satisfied the Respondent has demonstrated that Dr Moriarty did not impose that detrimental treatment for reasons (meaning substantial and operative reasons) that included the Applicant had one or more characteristics protected by s 210 of the IR Act. Relief, albeit of a limited kind, is granted. [6] In order to explain that conclusion it is necessary to briefly trace some of the history of the PSA FCU Campaign and the Applicant’s role within it. PSA FCU CAMPAIGN [7] The Department has, amongst other things, responsibility for administering laws governing the fisheries resources of the State, specifically, ensuring compliance with the Fisheries Management Act 1994 and the Marine Estate Management Act 2014. The FCU is one of the means by which the Department seeks to discharge that responsibility. In practical terms, the work of the FCU includes hours spent on patrols, day and night, often in remote areas, directed to the detection and prevention of illegal fishing activity and damage to fish habitats in the diverse rivers, lakes and marine environments of the State. [8] At all relevant times the Applicant has been a member and elected delegate of the PSA, an organisation of employees registered under the IR Act with coverage entitling it to represent the industrial interests of Fisheries Officers of the Department (including the Applicant as an SFO). Since mid-2023 the Applicant has also been an elected member of the PSA’s Central Council (a part of the PSA’s Executive). [9] Since March 2019 the Applicant has been a member of the PSA’s Fisheries Officers’ Vocational Branch Executive (the FOVB). The FOVB was described by the Respondent’s Manager, Industrial Relations, Ms Ange Royal, in this way: “The FOVB is coordinated by the PSA and is a representative body of Departmental employees and union delegates that advocates for the interests, rights, and working conditions of Fisheries Officer’s (FOs).”1 [10] There has been a long-running dispute between the PSA and the Department over the safety of members of the FCU when undertaking certain duties. The dispute was the subject of correspondence and joint consultative committee meetings between at least 2021 and 2024.2 In September 2024 that dispute resulted in the PSA imposing work bans, restricting certain inspection activities of fisheries officers outside of daylight hours. That dispute, the work bans, and the proceedings before this Commission that followed, are an important part of the backdrop to this current application. [11] At that time, the Applicant was not only a member and elected delegate of the PSA (via the FOVB), but also the FOVB Acting Secretary and Acting Chairperson.3 [12] As mentioned, the work bans imposed in September 2024 were an escalation of a long running dispute. The Applicant described the bans arising from a view having been formed by the PSA and the FOVB that the “consultative process [about measures to address the safety concerns] had run its course and failed” and that it was “necessary to explore other avenues to address the concerns of the officers”.4 The concerns that led to the bans were described by the Applicant in this way:5 The bans were imposed by the PSA and FOVBE as part of an industrial campaign to pursue legislative reform to address safety concerns of officers. These concerns include: a. Insufficient self-defence equipment, including a lack of OC spray and stab proof vests. b. Insufficient powers of monitoring and inspection and access to information which result in officers having to remain at locations in increased risk of harm to establish lawful grounds to conduct even the most basic of monitoring and inspection functions. c. Inadequate capacity to safely and efficiently effect vehicle stops associated with the exercise of powers under the FM Act to stop, search and inspect motor vehicles believed to be associated with fisheries offences. Page 5 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 d. Insufficient regulation of the commercial fishing industry, resulting in the officers being unable to swiftly and properly identify and conduct risk assessments of fishers and their associated vessels and vehicles (including a lack of a real time Vessel Monitoring Systems, lack of fit and proper person assessments for all commercial fishers and their crew, lack of any identity verification for commercial fishing licence holders and their crews, lack of individual identifiers on vessels used for commercial fishing to enable timely identification of those on board or the vessel’s associated fishing business. [13] The bans commenced on 11 September 2024, following a direction published on the PSA’s website the previous day, 10 September 2024.6 I note the published direction records the action followed an “overwhelming” vote by members of the FOVB in support of taking the action “to protect themselves and their colleagues in the course of their work”. As the Applicant described it in his oral evidence, that publication reflected the position of the PSA through the vote taken by its members within the FOVB.7 The publication concludes with the observation “This action has been brought on by members’ extreme frustration at the Government and Senior Management of their Department that have continued to refuse to provide appropriate protective and self-defence capabilities”.8 [14] On 23 September 2024, the Respondent (who is taken to be the employer of public service employees in proceedings before this Commission: see s 50 of the Government Sector Employment Act 2013(the GSE Act)), on behalf of the Department, notified a dispute under s 130 of the IR Act to the Industrial Registrar (the Dispute). [15] The Dispute came before Commissioner McDonald for Conciliation on 25 September 2024. I note the Manager Industrial Relations (Ange Royal), the Director of Fisheries Compliance (Dr Andrew Moriarty), and the Applicant were amongst the attendees (the Applicant attending via AVL).9 The dispute was not resolved. The matter was programmed for an expedited arbitration on 18 October 2024, with directions requiring evidence and submissions to be filed and served in the usual way in the interim. [16] As it transpired there was a marginal delay arising from Dr Moriarty having temporarily fallen ill,10 so that the Department’s primary materials were filed by 3 October 2024, the PSA’s on 11 October 2024, the Department’s material in reply on 23 October 2024, and the hearing ultimately proceeded before Commissioner McDonald on 28 October 2024.11 [17] The fact the Applicant’s witness statement (part of the PSA’s case in chief) was not served until 11 October 2024 is significant in these proceedings. [18] At the hearing of the Dispute the Department sought dispute orders essentially directed to bringing the bans to an end. It relied upon evidence of Dr Moriarty and Ms Royal. The PSA resisted those orders, and relied upon a statement by a David Potter, an FO, and the Applicant (who was cross-examined). [19] On 4 November 2024, Commissioner McDonald published her decision refusing the Department’s application for dispute orders, and otherwise making a Recommendation with a view to resolving the dispute.12 I understand the work bans remain in effect to this day.13 [20] The dispute was described by the Commissioner (at [5]) in this way: …the PSA clarified (to the extent it had not been made plain earlier) that the work bans had been implemented due to work health and safety concerns and were directed toward obtaining four outcomes to ameliorate those concerns, namely: (a) that every vessel in the NSW commercial fishing fleet be fitted with a Vessel Monitoring System (VMS); (b) all crew members of commercial fishing vessels should be subject to a ‘fit and proper person’ test; (c) that the identity of all crew members of commercial fishing vessels be notified to the Department and the identity of commercial fishing licence holders be verified as part of the licensing process; and (d) that FOs be authorised to carry oleoresin capsicum spray (OC Spray) as a defensive tool. [21] The four matters that were raised by the PSA in the dispute were, as the PSA itself acknowledged in those proceedings “largely outside of the control of the Department, as they require legislative change”.14 The bans were said to be “in a sense, symbolic: their intent is to draw public attention to the underlying safety issues and the legislative reform the PSA contends are appropriate.”15 That the Department had no control over some of the matters sought by the PSA as they would require legislative reform was not in dispute. In fact, one of the matters relied upon by the Respondent as a matter of public interest in favour of making the dispute orders sought in those proceedings was the fact the Respondent had no ability to give the PSA what it was demanding.16 [22] I note Commissioner McDonald set out at some length evidence going to the operation of the Fisheries Joint Consultative Committee and Work Health and Safety Concerns (at [77]–[117]), including the conduct of what was referred to as a CERT Review and the publication of a report of that review in April 2022 containing 12 Page 6 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 recommendations “relating to safety and operational improvements”. The Department had supported (or supported in principle) all 12 of those recommendations (at [78]–[80]). [23] None of Commissioner McDonald’s account of the circumstances surrounding the bans indicated that either the Department, or the government more generally, had expressly opposed the reforms sought by the PSA save that the Commissioner of Police17 had refused the request to give FCU officers access to OC Spray — something about which the PSA was apparently first advised on 12 September 2024 at a meeting following the announcement of the PSA bans: [105]. In fact, the Commissioner’s account of the history included an observation (at [95]), referring to the seventh recommendation of the CERT Review, to the effect that that recommendation was “one of four recommendations requiring legislative amendment”, each of which had the support of the Department, and additionally that the Department had supported legislative change to require commercial fishing licence holders to pass a ‘fit and proper person’ test which had progressed to the point of regulatory drafting: at [102]–[103]. [24] In the proceedings before me the Applicant gave evidence and otherwise relied upon some documentary material. The Respondent relied upon two witness statements and tendered a number of documents. There is nothing in the written or oral evidence to support the view that the Department (or the Government more generally for that matter) had ever expressly rejected any of the reforms being sought by the PSA on behalf of its FOVB membership. The decision of the Commissioner of Police to refuse a request for permission to carry prohibited weapons (OC spray) is not a decision of the government or the Department. [25] In cross-examination, the Applicant repeatedly resisted the idea that the position being advocated by the PSA for reform (legislative and otherwise) directed to improving the workplace safety of members of the FCU was in “conflict” with the position of either the government or the Department18. The highest the evidence got is what I consider to be something of a throwaway line at the conclusion of the notice of the bans published by the PSA on 10 September 2024 in which it was said (my emphasis) “This action has been brought on by members’ extreme frustration at the Government and Senior Management of their Department that have continued to refuse to provide appropriate protective and self-defence capabilities”.19 [26] The Applicant was taken to this passage in cross-examination. It was his evidence that neither the Respondent nor the government more generally, had actually communicated a “refusal” to adopt the proposals to improve workplace safety being advocated by the PSA.20 As for the notice published 10 September 2024, he said the FOVB had contributed to the drafting of the PSA communication issued on 10 September 2024, but they hadn’t drafted it.21 The Applicant would not have used the word “refuse” to describe the position that had been communicated to the FOVB.22 [27] That notice could hardly be considered a proper foundation for a finding that either the Department or the government or both held a policy position that the reforms being advocated by the PSA should not be implemented and/or would not be implemented, so as to create a potential conflict of interest (a matter raised by the Respondent and addressed below). [28] In answer to questions by me to ensure the evidence on this point was clear, the Applicant gave unchallenged evidence that neither the government or the Department had communicated a refusal to embrace the legislative and other reforms being advocated by the PSA to improve the safety of the working environment for its members in the FCU.23 [29] I note in cross-examination the Applicant gave this evidence:24 Q And would you agree with me that until the status quo changes the government policy of the day is whatever the legislative regime is at that particular point in time? A. Yes, of course. Q And sir, what you were seeking to do was to change government policy by changing the legislation? A. Ultimately I suppose, yes, because these safety mechanisms we were chasing required legislative amendments. [30] The Applicant may accept the underlined proposition, but I do not. In this context, change in policy positions precede legislative reform. If legislation is amended during a governmental term, one can reasonably infer (if necessary, because there would inevitably be direct evidence that could be led) that the legislative reforms reflect current government policy. But there are any number of reasons why a policy position of government (the Executive) may not be reflected in legislation (created by the Legislature) at any given point in time. Legislation reflects the current state of the law. I am not prepared to infer that the government holds a particular policy position from the mere fact that legislation stands in a particular form at a particular time, particularly where it was entirely Page 7 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 within the hands of the Respondent to lead evidence of what the policy position of the government on the legislative reform proposed by the PSA in fact is. [31] The Respondent called evidence in these proceedings from: (1) Ange Royal, Manager Industrial Relations; and (2) Ms Lee Burdett-Symons, the Program Leader North East. [32] Neither witness (in their written or oral evidence) state that either the Department or the Government has communicated, in any form or forum or at any time, that either the Department or the Government rejected any of the proposals being sought by the PSA through its campaign. There is complete silence in the evidence as to what the government’s policy position is with respect to the reforms being sought by the PSA. There is no evidence of a “Government policy in not providing fisheries officers with protective equipment … and conferring greater powers to conduct surveillance, undertake investigation and perform vehicle registration and criminal record checks” (cf RSUB [96]). I am not prepared to infer from the mere absence of legislative amendment to date that the government had either decided not to pursue the proposals for reform advocated by the PSA in the PSA FCU Campaign (which does not require me to accept the government had made a positive decision that something should not be given or done — it may be the government was of the view its legislative agenda was such that those concerns were of a lesser priority for the present), or the further step, had made a positive decision that the members of the FCU should not have those powers. [33] Moreover, the Applicant’s evidence included a letter from Mr Sean Sloan, Deputy Secretary, Fisheries and Forestry, dated 18 September 2024 addressed to Mr Shane Howes, Industrial Officer of the PSA, in relation to the PSA FCU Campaign in which it was said, amongst other things, when describing the actions taken by the Department to improve the workplace (including safety) of the FCU, it had: (1) Undertaken “a comprehensive and independent Fisheries Officer Safety Review — conducted in May 2022 with all recommendations accepted and actioned”; (2) “Approval by the Minister for Agriculture to draft a broader Fit and Proper Person regime for inclusion in the Fisheries Management (General) Regulations” (3) Established a “data access arrangement with the Australian Maritime Safety Authority…to access vessel information. A trial of this arrangement has recently been conducted and was very effective. Wider ranging arrangements will be implemented over the coming months”; and (4) “Contrary to the statement in your recent correspondence, I do support a strategic approach to review and modernise aspects of fisheries officer powers in the Fisheries Management Act 1994, to address modern fisheries management and compliance needs…” [34] That is sufficient for these proceedings, but I would add, to the extent I am able to inform myself about the circumstances of the PSA FCU Campaign and the Dispute from the detailed reasons of Commissioner McDonald and the passages of the evidence for the Respondent extracted in the Commissioner’s decision in those proceedings, there is nothing that suggested there was active opposition at the time of the PSA’s campaign. One cannot make findings of fact based on the published reasons of another member of this Commission, but as I have already indicated, there is no evidence of active opposition from the Government or a decision to reject any of those proposals in this case, and that is enough for present purposes. [35] It is clear on the whole of the evidence that the work bans imposed by the PSA and the media campaign that went with them, were but a part of the PSA FCU Campaign — a broad campaign adopted by the PSA in support of its members in the FOVB, to persuade the government to enact or otherwise implement the legislative and other reforms it saw necessary to provide a safe system of work for its FOVB membership. Indeed, one of the submissions advanced by Counsel for the PSA in the Dispute, extracted by Commissioner McDonald in her decision (at [96]), expressly acknowledged as much: Legislative and regulatory change can happen within government with effort, including effort by the senior leadership of this department. The work bans are directed at encouraging that effort through, among other things, attracting [media attention], which they have done. [36] It is against that backdrop that I come to the immediate background to the conduct of the Applicant and Respondent relevant to these proceedings. BACKGROUND Page 8 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [37] In the context of that campaign, the FOVB membership had apparently agreed that “as part of the industrial campaign” one of their delegates should be the contact person for any media enquiries.25 The Applicant, as a delegate and the Acting Secretary of the FOVB at the time, was selected and agreed to undertake that role. [38] The Applicant said that between about 22 September 2024 and 2 October 2024, a number of media outlets (including the ABC, the Daily Telegraph, news.com.au and a few regional newspapers) were referred by the PSA’s media unit to the Applicant so, as he described it “I could talk to them as a union delegate about the industrial action and the associated concerns of the membership”.26 The Applicant did not seek out any media outlets independently of the PSA media unit referrals.27 [39] The Applicant ensured the media interviews would not impact with his capacity to do his job. As he said:28 On each occasion, I ensured that the interview occurred at a time outside of my hours of work or during a lunch break. I did so, as I was mindful that in speaking to the media I was not acting in my capacity as an employee of the State but as a union official. I also did not want my duties as a union official to interfere with my duties as a fisheries officer. I am very proud of the work I perform as a fisheries officer and I believe that fisheries officers provide an important service the people of NSW. [40] The Applicant said that he was conscious to limit his comments to the safety concerns of the FOVB membership, and not to unnecessarily criticise the Minister, the Department or senior departmental officials.29 As he described it, he did not think being unnecessarily critical was “productive”.30 In my view, that evidence is consistent with the comments attributed to him published in subsequent media articles (referred to below). [41] Additionally, the Applicant said he was at pains to always emphasise he was speaking as a representative of the union:31 …[I]n respect of each interview, I made it as clear as I possibly could to the journalist that I was talking to them as organised via the PSA and as a PSA delegate and a member of the executive of the FOVB and not as a Department spokesperson. This was generally the first thing that I discussed with the journalist. I also attempted, during the interviews, to reference ‘members’ wherever I could to make it clear that I was speaking on behalf of the PSA. [42] I accept that evidence. It is reflected in a number of the extracts from the published media reports referred to below. [43] On 29 September 2024, it would appear at about 4:57am, the national work reporter for the ABC published an online article entitled “NSW fisheries officers demand stab-proof vests and capsicum spray in order to do their job safely”. The version of the story in evidence, having been printed from a story that appeared online, is reasonably lengthy. It extends for several printed pages and includes a number of photographs, at least one of which shows the Applicant in what I understand to be his uniform with the caption “Fisheries Officer Joe Wright says more needs to be done to protect officers”. The story “In Short” is described in this way: Fisheries officers are calling for the right to use capsicum spray and wear stab-proof vests after run-ins with illegal poachers and criminal gangs. They are also refusing to carry out night inspections of trawlers without police assistance. [44] Insofar as the story refers to the Applicant (underlined in the extract below), it states as follows: “Supervising fisheries officer Joe Wright knows too well the dangers of confronting a fisherman suspected of an illegal catch. He says situations can quickly turn hostile. “People have driven cars at me, they become highly aggressive,” he said. Mr Wright is one of dozens of fisheries officers in New South Wales who have been threatened with assault while on the job, protecting oceans, rivers and estuaries. Page 9 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 These officers are now demanding stab-proof vests and capsicum spray, amid fears workers are at risk of being hurt or even killed. The union representing the officers says they are unsafe and “operationally ineffective” when coming face-to-face with poachers and organised criminals. [an image of a fishing trawler then appears, with the caption “Fisheries officers can inspect trawlers to ensure the fish catch is lawful”] In March, a fisheries officer at Iluka on the NSW north coast was threatened with a timber club and pursued through town in his car after carrying out covert surveillance at night. The officer had been watching a trawler suspected of illegal fishing. The accused is before court facing 13 criminal charges including resisting and obstructing a fisheries officer. Mr Wright says many officers don't feel safe doing their job. “The fact that we have not had a fisheries officer in New South Wales killed in recent memory as a result of being out there doing their job, is testament to the calibre of the people that are actually doing the job,” he said. [an image of a large number of fish caught in a hauling net is then depicted] The high value of premium seafood has added to the lure of illegal activity. “All you need is a dive suit and a device to remove the abalone,” Mr Wright said. “In a couple of hours, you can literally take hundreds and hundreds of abalone. “There is a very valuable market for these species.” [an image of a large volume of abalone is then found, with a caption identifying it as having been supplied by “NSW Fisheries￿] Assaults, gun shots and threats to kill Over the past decade, more than a dozen officers have been threatened with being shot, stabbed or faced significant threats of violence, according to the Public Service Association. “Our counterparts in Victoria are equipped with stab-proof vests and capsicum spray, we’re just asking for the same equipment,” Mr Wright said. [an image of the Applicant in uniform with his arms crossed, with the caption “Fisheries Officer Joe Wright says more needs to be done to protect officers”] NSW fisheries officers have authority to use body-worn cameras, but Mr Wright said they cannot activate them on private property without permission from the person they suspect of wrongdoing. New laws giving them basic search rights, like those held by inspectors in Queensland and Victoria, are also being demanded along with GPS monitoring for commercial fishing vessels. Fisheries officers who are members of the Public Service Association of NSW (PSA) have refused to carry out night inspections of trawlers without police assistance as of September. Page 10 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 Inspections of all inland commercial fishing operations outside daylight hours without police have also been halted. The NSW Department of Primary Industries says it does “not agree with the PSA assertion that the department requires fisheries officers to conduct work in an unsafe environment.” [45] In part, this article (including much of the extract above that is not underlined) reflects commentary in a media release that the PSA would release online to the world at 6:14am that morning (referred to below). I gather it was provided to the ABC, given the PSA organised the contact with the Applicant. [46] I appreciate the depiction of a public servant in a uniform adjacent to comments may, in the right circumstance, lead a reasonable reader to be confused as to whether the comments of the individual are comments of the agency. That is not this case. [47] Under one of the photographs in the story, the Applicant is identified as “Acting chair of the PSA Fisheries Officers Vocational Branch Joe Wright (pictured),” and is attributed with the comment he “believes front-line work protecting oceans, rivers and estuaries cannot be safely carried out unless changes are made.” In addition to the comment attributed to the respondent in the final paragraph of the extract above, the story otherwise clearly records commentary attributed to the Deputy Secretary of the Fishers and Forestry Department, and there are clearly recorded comments of the Abalone Association NSW co-chair. Seen in context, no reasonable reader could mistake the commentary attributed to the Applicant, limited as it was, as reflecting the views of the Department. [48] That ABC Online article is chronologically the first media article/story in the evidence. Next in time appears to have been the PSA media release mentioned above, published online by the PSA at 6.14am that morning, 29 September 2024 (the PSA Media Release). That press release, entitled “Fisheries Officers take industrial action over safety concerns”,32 as one might expect, described the Dispute and what had transpired at the Commission proceedings the previous week: Fisheries Officers across NSW have begun industrial action over safety concerns after a number of violent incidents where they were shot at, threatened with knives and baseball bats and had cars driven at them. The Officers are demanding they’re issued with protective equipment like stab-proof vests and capsicum spray. Fisheries Officers are now avoiding certain areas and individuals at the very time fears have emerged that crooks, poachers and organised criminals like outlaw bikie gangs have taken over the state’s rivers, oceans and estuaries and are now plundering valuable species like abalone and rock lobster. Without direct Police assistance on operations the Officers are now refusing to complete inspections of commercial trawlers at nighttime. The Department of Primary Industries, which employs Fisheries Officers, attempted to force them back into dangerous night work earlier this week by applying to the NSW Industrial Relations Commission but the Commission refused to make such an order. The Officers also want the same powers as Fisheries Officers in other states to check boat and car registrations, conduct surveillance, undertake investigations, and real time GPS tracking of the entire commercial fishing fleet. They also want to see the introduction of a ‘fit and proper person’ test for commercial fishing licence holders and their crew within six months. [49] As is common with press releases of this kind, what follows is a series of quotes that the author of the release presumably thinks may serve their ends if picked up and reproduced by the general media. In this case, quotes such as: “Fisheries Officers are being shot at, run down, having fishing knives pulled on them, someone’s going to get killed,” said Mr Wright. [50] The “Mr Wright” here quoted is, however, not the Applicant. All the quotes in the PSA Media Release are attributed to Mr Troy Wright, the Assistant General Secretary of the PSA. No reference is made to any comment Page 11 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 from any delegate at all, and certainly not the Applicant in the PSA Media Release. In addition to the above, the quotes attributed to the Assistant General Secretary included: “Fisheries Officers have no way of knowing if a boat or car we inspect is going to be filled with bikies from outlaw motorcycle gangs, they’re blind compared to Fisheries Officers in other states.” … “In other states’ Fisheries Officers have access to car and boat licence records like Police, they can find out if people are violent offenders and avoid dangerous situations, they can see if someone has a history of crimes against the environment — in NSW we can't do that.” “It’s harder to get a RSA certificate to pull schooners at the local pub than it is to get a commercial fishing licence, you can get one and start taking thousands of kilos of fish by filling out an online form with no 100 points of ID, with no background checks.” “In Victorian or Queensland to be a commercial fisher you need to pass a fit and proper person test, so if you have a prior history of crimes against the environment, or violent crimes you won’t get a licence.” “It’s an absolute joke, to flick a line in at the local wharf mums and dads have to pay for a licence and have it with them, but to run a commercial fishing operation you can have 15 people all pulling out hundreds of fish who have zilch paperwork.” “Fisheries Officers have no powers of investigation, they can’t even use binoculars or a camera, in other states they can apply to a magistrate to put a tracking device on a boat, here can’t do that, why?” “We know drug traffickers have infiltrated the commercial industry, miles off the coast in the dead of night we need to board boats, yet unlike other states we don’t have a GPS vessel monitoring system for our commercial fishing fleet, one day Fisheries Officers will board a boat and they’ll get killed.” “This is why the NSW fishing fleet is so appealing to drug traffickers to pick up cocaine shipments off the continental shelf.” “In 2020 a fishing trawler called Coralynne was caught carrying 1.8 tonnes or $850 million worth of cocaine it had picked up from a larger ship in international waters, if Fisheries Officers had boarded this boat they might have been killed.” “Fisheries Officers can’t even run a rego check on a boat they physically pull up alongside.” “In Queensland they track every boat via GPS, so they know where each boat is, who’s the skipper and what they’re doing.” “It’s not just miles off the coast, Fisheries Officers are intercepting poachers with thousands of dollars worth of abalone and rock lobster at all hours of the night, and these crooks won’t hesitate to hurt them if it means avoiding jail time.” “Fisheries Officers need more defensive protective equipment, stab proof vests, capsicum spray so if someone comes at them with a fishing knife they can put some distance between them and if they close that distance they can spray them so they can escape.” “Fisheries Officers often can’t call Police for backup as they are tracking poachers in the dead of night on remote beaches or miles offshore on trawlers, I’m telling you someone is going to get killed.” … “There’s big money in poaching, every abalone is a $50 note, and all you need is a wetsuit and a knife and you can lever a couple of 100 off the rocks in a few hours, it’s big money.” … “If you care about our state's fish stocks, especially of endangered species like abalone and rock lobster, you need to hear Page 12 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 this distress call from Fisheries Officer’s because if they’re ignored you might wake up to the news one day soon that these species are extinct,” said Mr Wright. [51] The Assistant General Secretary was, as the Applicant described it, aware of the FOVB’s industrial concerns through discussions with the FOVB Executive (of which the Applicant was a part), and to the Applicant’s knowledge, was authorised by the general secretary of the PSA to speak on behalf of the PSA.33 [52] It is clear that the PSA Media Release was picked up by a number of media outlets and used in stories published on 29 and 30 September 2024. In some of those articles, reference is made to comments made by the Applicant, but they are of a somewhat different and often less pointed character than those of the Assistant General Secretary, frequently in the form of an anecdote. [53] For reasons that will become apparent, whilst all of the media articles and radio broadcasts in evidence are important (and I infer were considered by Dr Moriarty at some point), I consider it to be of importance to identify those media articles (including radio broadcasts) that were published or broadcast before 6:30am on Monday, 30 September 2025 (or at the least prior to a meeting of the Senior Leadership Team of the FCU held at approximately 9am that day). On the evidence, that is only: (1) The ABC Online article extracted above, entitled NSW Fisheries officers demand stab-proof vests and capsicum spray in order to do their job safely.34 (2) The PSA Media Release published at 6.14am, 29 September 202435 extracted above. (3) A Mirage News article published at 6:17am 29 September 2024.36 That article makes no reference to the Applicant. The only quotes are from the PSA Media Release and are correctly attributed to Troy Wright, Assistant General Secretary of the PSA. (4) A Sunday Telegraph article published on 29 September 202437 described below. (5) An Adelaide News article published 29 September 2024,38 described below. (6) A Daily Liberal article, published (and updated) online on 29 September 202439. The Daily Liberal article makes no reference to the Applicant. The only person quoted in the article is the Assistant General Secretary, obviously drawn from the PSA Media Release. (7) The brief radio comments on the morning of 29 September 2024.40 [54] In the Sunday Telegraph article published on 29 September 2024, the Applicant appears in uniform in an image next to the heading “Fish guardians under attack”. He was attributed with these comments: “Fisheries officer, and PSA delegate, Joe Wright and his colleague once had a gun aimed at them when they were sitting in wait beside illegal fishing gear beside NSW a river after a tip-off from a member of the public.” “We can’t even use binoculars or cameras without the adjoining landowners permission,” Mr Wright said. “So we have to sit close to the illegal gear and wait for whoever owns it or is using it to return.” “So here we were well outside mobile phone service waiting when the landowner comes running down to us, and points a longarm rifle at our heads. In that moment, we were sitting ducks.” Mr Wright said the union has raised concerns with the department and NSW Agriculture Minister Tara Moriarty around what they see as a deterioration in regulations, and the effect it has on staff. “In other states, fisheries officers have access to car and boat licence records like police; they can find out if people are violent offenders and avoid dangerous situations, they can see if someone has a history of crimes against the environment — in NSW we can't do that,” he said. [55] There a number of other quotes in that article attributed to Troy Wright, the Assistant General Secretary (and are clearly from the PSA Media Release). [56] The Adelaide News article published online on 29 September 2024, bares the title “’Someone’s going to get killed’: NSW Fisheries officers strike over unsafe conditions”.41 The article continues: Page 13 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 It’s this very scenario that victim fisheries officer, and PSA delegate Joe Wright fears. He and his colleague once had a gun aimed at them when they were sitting in wait beside illegal fishing gear on the shoreline of a river after a tip-off from a member of the public. “We can’t even use binoculars or cameras without the adjoining landowners permission — and often they’re the ones carrying out the illegal activity.” Mr Wright said. “So we have to sit close to the illegal gear and wait for whoever owns it or is using it to return. So here we were • well outside mobile phone service — waiting when the landowner comes running down to us, and points a longarm rifle at our heads. We hightailed it out or there — and the man was eventually dealt with by authorities — but in that moment, we were sitting ducks.” Mr Wright said the union has raised concerns with the department and NSW Agriculture Minister Tara Moriarty around what they see as a deterioration in regulations, and the effect it has had on staff [57] The article continues with (amongst other comments) a number of the quotable quotes from the PSA Media Release, correctly attributed to Troy Wright, Assistant General Secretary. [58] The only quote attributed to the Applicant in a radio broadcast prior to the morning of 30 September 2024, appears to be ABC radio comments on 29 September 2024 at 7:04am 42. Having described, amongst other things, the “union claim before the Industrial Relations Commission”, the presenter said: “Supervising fisheries officer Joe Wright says many feel ill equipped”, and appears to contain a brief comment from the Applicant: We’re talking about officers just trying to preserve their lives. Our counterparts in Victoria are equipped with stab proof vests and capsicum spray. That is all we’re asking for. [59] They appear to be the only comments attributed to the Applicant in any of that media prior to the morning of Monday, 30 September 2024. [60] None of the Applicant’s comments up to this time (or indeed thereafter) could be reasonably characterised as an “attack on Dept and Minister”, although that view could be reasonably expressed of some of the comments made by the Assistant General Secretary. That is of significance in light of evidence of what transpired during an ad-hoc meeting of the Senior Leadership Team (the SLT) called at short notice on the morning of 30 September 2024, referred to below. [61] In the evidence there are other media articles or broadcasts attributing comments to the Applicant that happen a little later in time. There is an additional article making brief reference to the Applicant published in the Newcastle Herald on 30 September 2024 entitled “Fisheries officers in night strike”,43 in which the following were attributed to the Applicant: A UNION delegate for NSW Fisheries officers has warned it’s “only a matter of time before someone gets seriously injured or even worse” unless the state government implements a list of safety reforms. [62] Reference is made to the industrial action being taken by fisheries officers and their demands, and the story continued: The North Coast delegate for the NSW Fisheries Public Service Association, Joe Wright, spent many years working in Port Stephens where illegal rock lobster fishing is a major issue. He said fisheries officers in Port Stephens and Newcastle have also seen the rise of organised crime in the commercial fishing industry. … It’s a testament to the officers who have been out there doing the role for decades that nobody has been killed,“ Mr Wright Page 14 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 said. “It shows you the calibre of the people that they’ve been streetwise enough to make it through to date. But we’re running on luck. [63] Again, much of the rest of the article records comments from the Assistant General Secretary (largely reflecting the PSA Media Release), correctly attributed to him. [64] There are additional comments attributed to the Applicant in transcripts of radio broadcasts in evidence, including: (1) A live radio interview with the Applicant on ABC Illawarra Breakfast radio on Monday, 30 September 2024 at 7:22am44. In it the Applicant referred to the fact the areas in which fisheries compliance officers are required to work can be remote, that it is not practical to rely on support from other law enforcement such as police in such remote areas, and that the valuable species present (such as in the NSW South Coast marine areas) mean fisheries law enforcement are often dealing with “the more serious end of illegal fishing crime [and consequently] an increased prevalence of aggressive, hostile and very challenging circumstances”. The “client base” the fisheries officers come to deal with, for example in dealing with abalone or rock lobster situations, were described as “hugely hostile” and officers were “dealing with all manner of verbal abuse but also threats of physical violence and basically threats, the nature of which mean that our members, our officers simply just have to focus on getting themselves out of those situations above enforcing the provisions of the relevant legislation”. Fisheries officers were “unable to hold that thin green line”. He observed “Their job is becoming far too dangerous and they need improvements to their self-defence capability, and drastic improvements to legislation to even make it contemporary and in line with what is available to Fisheries Officers in other jurisdictions such as places like Victoria and Western Australia that lead the way in this space”. Refence was made to the close proximity of the waters of the Illawarra and Shoalhaven area to the biggest black markets for fish, in Sydney, making those areas particularly vulnerable to illegal fishing crime. Reference was made to a trial of OC spray and its purported success, with the spray acting as an effective deterrent, the Applicant saying (amongst other things): And that’s why the Union, that’s why we are pushing so hard for those types of things to be available, to the fisheries officers in New South Wales. The fact is that the capsicum spray and stab proof vest are available to our colleagues in Victoria right down to the point that our colleagues in Victoria even have permits to carry that gear into New South Wales in the course of their official duties yet in New South Wales, officers don’t have access to it. They can’t get approval to carry that for ourselves in New South Wales and it’s kind of ridiculous. That interview appears to have been picked up by other ABC radio outlets. (2) On 30 September 2024, 7:30am ABC Riverina News45 and ABC South East NSW News:46 Good morning Isla Evans with ABC South East and Riverina News. A New South Wales fisheries officer says those patrolling the far south coast are operating in the state’s most difficult area. Union members are demanding stab proof vests and capsicum spray amid fears workers are at risk of being hurt or killed while policing illegal fishing . Supervising Fisheries officer Joe Wright says 20 officers patrol from the lllawarra down to the Victorian border. He says valuable species are found in the region’s waters, which has led to an increase in illegal fishing operations. They’re dealing with the most high value species, like rock lobster and abalone . That’s kind of a tinderbox for, you know, problems if you bring all of that together. Our South Coast members strive amongst all the odds to try to hold a thin green line on serious organised crime. (3) On 30 September 2024, 7:30am ABC Illawarra News47: Page 15 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 ABC lllawarra News. Good morning. I’m Nick McLaren. Union members from New South Wales Fisheries say their refusal to conduct night inspections of trawlers without police assistance should not impact seafood production. It’s part of calls for the night for the right to use capsicum spray and wear stab proof vests after run ins with illegal poachers and criminal gangs. Supervising Fisheries officer Joe Wright says the abalone fishery south of Jervis Bay is a known hotspot for threatening behaviour. So people running from officers throwing their catch, hiding their catch, being generally difficult to deal with in terms of providing personal particulars and all of those sorts of things, and it makes the role really challenging. [65] Other than the above, I can see no reference to the Applicant in any of the evidence of published media prior to 8 October 2024. [66] The comments by Mr Troy Wright in the PSA Media Release (or otherwise from interviews done with him) were much more widely broadcast. [67] In addition to the above, comments from the PSA Media Release (or otherwise made by the Assistant General Secretary) can be found published in an article published on 30 September 2024 in the Illawarra Mercury entitled “Fisheries officers strike over safety risks”48, an online article on Sunraysia Daily49, and Newscorp Digital News50 published 30 September 2024. The Applicant is not referred to in any of it. [68] In addition to the above, the Assistant General Secretary’s quotes appear to have been picked up in Radio broadcasts on 29 and 30 September 2024 including by 2SM51 and ABC.52 [69] At 10:19am on 30 September 2024, the Assistant General Secretary did an interview on the well known Ray Hadley Morning Show on 2GB radio53 in which the Applicant did not appear to participate. [70] At 4:08pm on 30 September 2024,54 the Assistant General Secretary did an interview with ABC Drive in which the Applicant did not appear to participate. [71] It is very clear that the vast majority of the media reporting up to 30 September 2024 (referred to in a Media Report Dr Moriarty received at 9:52am on 30 September 2024, and in an email from Lyndall Hilder at 9:55pm on 30 September 2024, referred to below) emanated from the quotable quotes attributed to Troy Wight, Assistant General Secretary in the PSA Media Release (or interviews with him), and were not attributed to the Applicant. [72] It is also clear, in my view, that nothing attributed to the Applicant in any of the media reporting could reasonably be characterised as an “attack” on the Department or the Minister or even the government more generally. All of the Applicant’s statements to the media are directed to raising a concern about the health and safety of the fisheries compliance workers in NSW. That is to say, the environment in which they work (often remote), the valuable fish assets that are being targeted by criminal fishing activity, and the criminal organisations that are often behind it, the hostile ‘clientele’ that they come to deal with (occasionally using personal anecdotes of situations he has found himself in), the PSA bans and the reason for the bans being imposed, and the health and safety improvements they were seeking (often compared to what is available by interstate counterparts). [73] None of it appears confidential (and there is no evidence any of it was considered confidential). Much of it was, in substance, canvassed in evidence before Commissioner McDonald and extracted in her reasons. I understand no non-disclosure orders were sought (let alone made) under s 164A of the IR Act in those proceedings. [74] It is with that background that I come to the conduct of the Respondent relied upon as a detriment to ground the findings of victimisation and relief sought by the Applicant. The First Alleged Detriment [75] The Applicant’s immediate supervisor, Ms Lee Burdett-Symons, occupied a position of Program Leader, North East. The duties associated with that position included, amongst other things, leading and managing the Fisheries Compliance Unit Far North Coast and North Coast Zones.55 [76] Ms Burdett-Symons was due to take a period of leave for some six weeks in late October to early December 2024. Preparations for that period of leave, including securing someone to act in her stead whilst away, were being made at around the time of the PSA bans. The relevant workplace policy for acting up opportunities contemplated an expression of interest (EOI) process for acting opportunities in excess of 4 weeks. I note that policy requiring an EOI for acting opportunities in excess of 4 weeks was only introduced in July 2024.56 Prior to that, Ms Burdett- Symons would simply ask individuals to act in her position.57 [77] As required by that new policy, an EOI process was conducted in late August, closing on 13 September 2024. No-one expressed an interest. That absence of response was apparently not unusual, in part because of the Page 16 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 “minimal financial incentive” to take on the additional responsibilities of the role compared to what is earned (and required of) an SFO.58 As the Applicant described it, he did not apply to the EOI because he is already very busy with his work (“I often find that I cannot physically get to everything. So, that often dictates what I can put my hand up for”),59 he “made a conscious decision not apply because I was not able to keep up with everything else that I was doing within my actual role”,60 and secondly the role is challenging and the remuneration for taking on that more challenging role is not large.61 [78] Consistent with her past practice and to ensure the role wasn’t left vacant during her absence, having received no response to the EOI Ms Burdett-Symons “proactively (and without first speaking to the Director of Fisheries Compliance) decided to encourage” the Applicant and another SFO, Mr Ben Audet, to share the acting opportunity as they had done in the past.62 [79] That request was made via an email dated 25 September 2024 from Ms Burdett-Symons to Mr Audet, the Applicant and copied to a Ms Christine Rae. That email proposed dates for the shared acting up arrangement, drafted to accommodate leave arrangements that the Applicant and Mr Audet had already arranged, essentially splitting the six week period in two with the Applicant taking the second block (from 18 November to 5 December 2024). Ms Rae joined the email chain about 7 minutes later by advising she would enter the relevant allowance payable to the Applicant and Mr Audet into the relevant payroll system “to ensure you are paid at the correct payscale” once they confirmed Ms Burdett-Symons’ request. A few hours later, again on 25 September 2024, the Applicant confirmed he would “try to act in the Boss’ position for the second group of dates”, a communication Ms Burdett-Symons understood as the Applicant confirming his acceptance of her proposal.63 [80] In cross-examination, having said he hadn’t wanted to volunteer to act up for the full 6-week block of Ms Burdett-Symons’ leave because it was “six weeks of hard time”, the Applicant gave the following evidence about his ultimate acceptance of the role:64 Q And so doing the quote/unquote “hard time”, wasn’t what you wanted to do but you were prepared to accept it as an arrangement? A. Well, we do it because it’s an absolutely critical position to our zone’s functioning and we do it because we care about our people being able to do things. Q And it’s not because of the money? A. I mean, you wouldn’t do it if you were getting paid less money but the main reason for doing it is because of that experience you get out of dealing with — going from 16 staff to almost 50 staff. Q But that wasn’t something you were putting up your hand to do, it was something you would accept that it would be useful to do? A. Well, it’s good for our development and it is something — I have a very good rapport with my line manager and I want to — and my team and I want to — I see it as a manner in which I can help the team and keep people, support people out there doing what they’re employed to do. [81] The arrangement made by Ms Burdett-Symons was, as she described it in her supplementary statement, “consistent with arrangements in the past, where [the Applicant] and Mr Audet have received approval to act in my role while I have been on leave”65. She was usually left to manage the process of having someone act up in her position.66 In fact, her evidence went further:67 Q Have you ever had a situation, apart from the circumstance that we’re talking about in these proceedings, where the Director of Fisheries Compliance overrode your decision? A. No, not that I’m aware of, no. [82] The process then being applied may well have only been newly implemented (although I note the Delegations Manual, Ex 9, dates to 2022), but Ms Burdett-Symons confirmed that but for Dr Moriarty’s intervention (described below), in accordance with that arrangement made on 25 September 2025, the Applicant would have performed the acting opportunity he had been offered and agreed to, in the October to December 2024 period68. Page 17 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [83] The evidence around the communication of Dr Moriarty’s decision to deny the Applicant the opportunity to act up in the PLNE role can be more conveniently be dealt with chronologically at the end of the discussion regarding the Second Detriment. For present purposes it is sufficient to note the following: (1) As would be apparent from the above, over the weekend of 28 and 29 September 2024, and on Monday 30 September 2024, there were several media articles reporting on the Dispute before the Commission (which had been the subject of unsuccessful Conciliation on 25 September 2024), some of which involved the Applicant. (2) At 6:30am Monday, 30 September 2024, Dr Moriarty sent a meeting invitation via Teams to Ms Burdett- Symons and four other people. The title of the meeting invitation was “SLT Check In re articles” and was to occur at 9am that morning. I understand SLT means Senior Leadership Team. For reasons that will be discussed below, the timing of that email is significant in the disposition of this application, as is the timing of and content of the media publications referred to above. That is conveniently dealt with when discussing s 210(2) and the rebuttable presumption it creates. (3) A meeting of the SLT took place at or around 9am on Monday, 30 September 2024. The timing of and what happened in the course of that meeting, and specifically what Dr Moriarty said and how Dr Moriarty appeared, is also contextually important in the disposition of this application. Again, that is conveniently dealt with when discussing s 210(2) and the rebuttable presumption it creates. (4) At 4:40pm that day, Monday 30 September 2024, an email was broadcast by Deputy Secretary, Sean Sloan, to all fisheries and forestry staff, including the FCU. It was headed “Update on Fisheries Officer work bans”, referred to “media coverage over the weekend on Fisheries Officer safety concerns” and identified it was to provide an “update to all Fisheries & Forestry staff”. It described the “Public Service Association’s (PSA) Fisheries Officer Vocational Branch” having imposed bans, described those bans, and noted the matter had now been referred to the Commission. It then said: The Department has been working extensively with the PSA Fisheries Officer Vocational Branch over the past 18 months to address a range of issues related to their work. Your safety and well-being are important, and we want everyone to make safe choices as outlined in all our safe work method statements and general work instructions. All staff are reminded to follow the Department’s Code of Conduct and Ethics, as well as relevant policies and guidelines. If you are unsure of these, please ask your Director or Executive Director. The email concluded by noting all media enquiries should be directed to the Department’s media unit and attached recent correspondence between the Deputy Secretary and the PSA on these matters for additional context (I note the correspondence referred to was not included in the evidence in these proceedings). (5) The evidence is largely silent as to what transpired between 30 September 2024 and 8 October 2024, other than to note that Ms Royal was on leave from 4 to 13 October. Importantly, there is no reference in the evidence to anyone from the Respondent having advised the Applicant they saw anything he had done over the weekend of 28 and 29 September, or on the morning of 30 September 2024, in supporting the FOVB’s campaign as inappropriate. The Second Alleged Detriment [84] It would appear that at 7:41am on 8 October 2024, the Applicant gave a live interview to an ABC Central Coast journalist. A transcript of the interview is included in the evidence. The transcript records the journalist referring to the approximately $18 million contributed by recreational anglers to policing and fisheries management through their recreational fishing licence fees and a desire to see those funds put into the Recreational Fishing Trust for the support of coastal, mobile and inland fisheries offices, and to enforce fisheries rules and regulations. The journalist continued to observe “Unfortunately, those fisheries officers are having trouble doing their job because they believe they’re not equipped to tackle the challenge in front of them.” Reference was made to the Page 18 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 bans being implemented by the PSA “until they’re given the resources they need. They say like stab proof vests and capsicum spray.” [85] The Applicant is introduced in this way (my emphasis):69 Joe Wright is an active fisheries officer and is also the Public Service Association union spokesperson. I asked Joe what needs to be done to get our fisheries law enforcement back on track and in line with best practise. [86] What follows is a transcript of the Applicant’s comments (I have broken the text into paragraphs for convenience, but the text, including typographical errors, is otherwise as contained in the original): We’re in a situation where we don’t have adequate powers of inspection and adequate powers of surveillance and monitoring. Um, certainly when you compare what we have available to us in New South Wales with other jurisdictions like Victoria and Western Australia. Um, our unfortunately, our capabilities are really quite archaic. Um, but on top of that, we’ve also got major concerns about the safety apparatus that is available to fisheries officers in New South Wales. So most people who have interacted with the fisheries officer in this state, with our members, they would have noticed that officers, um, they have a power of arrest. So they carry a pair of a set of handcuffs, and they also carry an extendable baton, which is basically tools that is supposed to enable officers to get out of tricky situations. Certainly in the case of the baton, what we’re arguing is that, um, there is now other contemporary tools that are available to law enforcement people and law enforcement agencies across the world, things like capsicum spray, which enable people like fisheries officers who are dealing with potentially hostile, escalating or hostile situations to be able to have more chance to get out of that situation and seek help. Um, what we’re asking for is, in all reality is to be equipped the same as our colleagues in Victoria. Um, the fisheries , service in Victoria are, you know, they have modern legislation, they have modern powers of inspection and surveillance. And they had and they have modern and contemporary self-defence mechanisms for their staff. And that’s all we’re really asking for here. But I constantly have fishery officer members contacting me, um, and other delegates on (sic) the union and begging us to do more to fix the situation and, the, um, you know, the stalemate that we’re at with respect to having the capability to deal with the real bad eggs or the people who are committing the higher end, more significant fisheries and marine park crimes, and you find that they’re, um, really responsible for a very disproportionate amount of illegal catch. The reality is, that the fisheries resource across New South Wales is highly accessible. Um, fisheries work, you know, the places where, people can where people do access the fishery , um, a wide and varied, you know, it can be out in the far west, out on the, on out on the darling River. Um, it can be, you know, in the sneaky parts up the backs of estuaries or offshore. And, you know, the reality is that fishery resource, which is increasingly, um, which is increasing in value is, highly sought after. Um, there’s a, there’s more or less a never ending market for various types, various species of fish and even not just for human consumption, but also for, you know collectors markets, things like the aquarium industry and the illegal wildlife trade as well, which we all often forget about. And the reality is, that, you know, with, relative ease, say, in the case of abalone or rock lobster, you can put your dive, put your wetsuit on, grab your snorkel and a tool to lever the abalone off the rocks you get in the water. And if you have any reasonable ability at snorkelling and diving, it’s not hard to go and take a significant quantity of those species. And then if you have links to people or markets that are willing to pay for them, it’s an easy dollar. And if you don’t, the reality is, Scott, if you don’t have if we don’t have fisheries officers out there creating a deterrent, which I think our members have done very well for a very long time, then it would, I would argue, and our members would argue that it wouldn’t be. It wouldn’t take long at all before we find fishery sectors collapsing and it would start with those high value species. Um, this is exactly the type of thing that’s happened in other countries. You know, you look at the fishery resource in South Africa, the fishery challenges in California and all of these other parts of the world with bigger populations and things like that. And it doesn’t take much for it. only takes the law enforcement arm of fisheries agencies to take their foot off the pedal. And all of a sudden you’re dealing with, you know, significant impacts on the resource. And that’s what our members ultimately fear, because we’re all keen fishers, too. And we all care about the. We all care about the aquatic environment. Page 19 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [87] The journalist made some concluding remarks and again refers to the Applicant as an “active fisheries officer and Public Service Association spokesperson.” [88] The Applicant’s comments are, quite frankly, banal. They disclose nothing that could reasonably be considered confidential information. There is no evidence anything said was considered confidential. Insofar as reference is made to the work of the FCU they amount to little more than general descriptions about the environment in which the FOVB’s “members” (as the Applicant repeatedly said) were working as justification for the demands they were making, and by comparison with resources made available to the counterparts elsewhere. There was no “attack” (to use Dr Moriarty’s language from the minutes of the 30 September 2024 meeting referred to above) on the Department, the Minister or the government more generally. [89] The introduction (and concluding remarks) did refer to the Applicant as an active fisheries officer, but that was coupled with a reference to him being the Public Service Association spokesperson. No reasonable listener could have mistaken the Applicant’s comments, such as they were, as reflecting the views of the Department. [90] At 7:44am on 8 October 2024, the host of “The Big Fish” and “ABC Central Coast Breakfast”, Scott Levi, wrote to the Minister’s office inviting a response from the Minister to an interview done that morning. The Minister’s office forwarded it to (amongst others) the Manager Media, Primary Industries who in turn forwarded it to (amongst others), Dr Moriarty. By 9:06am that morning, Dr Moriarty had been forwarded an email with a link to “the clip featuring an interview with Joe Wright”. [91] At 9:52am 8 October 2024, Dr Moriarty forwarded that chain of emails to, amongst others, Mr Wilson, Senior HR Business Partner. That email said “FYI — he’s still doing it!!!”. [92] As noted above, despite Dr Moriarty’s apparent frustration and/or irritation (an inference I think can reasonably be drawn by the three exclamation marks), there is no evidence that anyone had reached out to the Applicant directly to say that they considered his communication with the media inappropriate. [93] It would appear there was a discussion between Dr Moriarty and Mr Wilson at some time between 9.52am and 1.45pm, because at 1.45pm Mr Wilson sent Dr Moriarty an email saying “As discussed, please see below email template that you can issue to Joe Wright, reminding of his obligations as an employee under the Code”. What followed in the email from Mr Wilson was a draft email addressed to the Applicant. [94] At 2.24pm that afternoon, 8 October 2024, Dr Moriarty sent an email to the Applicant under the Subject “Unapproved public comments made to media sources referencing NSW Fisheries and activities of the Department”. It would appear Dr Moriarty crafted that subject line — the draft from Mr Wilson did not propose one. The body of the email was word for word the draft provided by Mr Wilson, save for an additional paragraph that I have emphasised in the below extract, noting that paragraph is inconsistent on its face with the paragraph that immediately preceded it: Dear Joe, I am writing to you in relation to several unapproved public comments you made to media sources referencing NSW Fisheries and activities of the Department, including ABC News and the Sunday Telegraph interviews published on 29 September 2024 that included photographs of you wearing the Department’s Fisheries Officer uniform, ABC radio interviews broadcasted on 30 September 2024 and 8 October 2024. On this occasion, I have decided that no further action or investigation is required other than to remind you that as an employee of the Department of Primary Industries and Regional Development (DPIRD), you have a clear obligation to adhere to the Department’s Code of Ethics & Conduct in relation to Professional Standards, specifically: — We must behave in a way that does not damage the reputation of the Department or the NSW Public Service. — Only authorised employees are to comment publicly on the activities of the Department, including having conversations with journalists or posting on social media — Public speaking engagements must be approved before commitments are given. If it is found that you have breached these standards and obligations expected of you in future including by making any further public comments about NSW Fisheries and/or the activities of the Department without approval, the Department may recommend commencement of formal misconduct procedures against you in accordance with s69 of the Government Sector Employment Act 2013. You are required to complete the Department’s Code of Ethics & Conduct mandatory training available through the Bridge Page 20 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 portal on the Intranet. If you have not already done so, please complete this training module and provide evidence of completion to your manager within 14 days of the date of this email. I would also like to remind you of the Government Sector Core Values set out in Section 7 of the GSE Act 2013 (https:/Jintranet.regional.nsw.gov.au/ethics-conduct). This email does not serve as an official warning. A copy will be retained by the HR Business Partner (HRBP) team for future reference if required. You are reminded of your obligation to maintain confidentiality of the matters discussed and outlined in this email and must not discuss this with other employees. You have access to the Department’s Employee Assistance Program and may access counselling services by calling 1300 360 364. If you wish to discuss this matter further, please let me know and I can arrange a meeting. You can also contact your HRBP Connor Wilson on 0497 553 743 or connor.wilson@regional.nsw.gov.au. I see in the roster that you are on leave this week, however I will be setting up a meeting with you upon your return, including Lee and Connor to discuss the content of this email. Regards Andrew [95] That email to the Applicant sent on 8 October 2024 is the second detriment relied upon by the Applicant as unlawful victimisation, characterised as a “written warning” from Dr Anderw Moriarty, the Director Fisheries Compliance. [96] The meeting between Dr Moriarty and the Applicant foreshadowed in the underlined passages in the above extract never occurred. The evidence about why that is so is more conveniently discussed as part of the chronology of events in dealing with the operation of s 210(2) and the rebuttable presumption it creates. RELEVANT LEGISLATION [97] The application is made under s 213 of the IR Act, seeking Orders to “enforce” the provisions of Part 1 of Chapter 5 of the Act, specifically in the form of the legislation that existed at the time the proceedings were commenced, subsections 210(1)(a), (g), (h) and (j). Section 210 has been substantively amended on and from 3 July 2025,70 being the date of assent of the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025(the Workplace Protections Act), so that those subsections are now respectively s 210(1)(a), (e), (h) and (m). [98] Both parties accepted that on its proper construction, the Workplace Protections Act was not intended to have a retrospective operation. That is to say, the amendments to ss 209A, 209 and 210, would not appear to be drafted to displace the presumption an amending Act would not ordinarily be read so as to attach new legal consequences to facts or events which occurred before its commencement71. I agree. In any event, the Applicant did not seek to amend the application to allege the Applicant’s conduct was “industrial organising activity” as that phrase is now to be understood under ss 209A and 209(3) post the enactment of the Workplace Protections Act. [99] In the form applicable to these proceedings, s 210(1) relevantly provided: (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person — (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or … (b) participates, or proposes to participate, in proceedings relating to an industrial matter, or (c) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee’s duties), or Page 21 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 … (d) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011 … [100] The Workplace Protections Act also made significant amendments to s 210(2) and s 213, deleting s 210(2) entirely (and enacting two new subsections 210(2) and (3)), and including a refashioned ‘reverse onus’ provision in a new s 213(5). Both parties accepted the new s 213(5) had no application to these proceedings, and the relevant form of s 210(2) applicable to these proceedings was that as at November 2024 when the proceedings were commenced. In light of the savings and transitional provisions applicable, that is plainly correct.72 [101] Subsection 210(2) in that form has been a feature of the IR Act for many years: (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. [102] It has been interpreted on a number of occasions, including recently in litigation that culminated in the judgment of McHugh JA in PSA v Cmr of Police [2025] NSWSC 624.73 Its operation is relatively well settled, and at the level of principle was not the subject of any real dispute. That jurisprudence will need reconsideration in the context of the new s 213(5), but not in this matter. Its operation in this case is discussed below. SUBMISSIONS AND EVIDENCE [103] The Applicant relied upon an outline of written submissions dated 28 April 2025 (the ASUB), a reply submission dated 4 August 2025 (the ASUBR), which were supplemented orally, a chronology, a bundle of documents produced under summons (Ex 1), an extract of Dr Moriarty’s diary dated 8 October 2024 (Ex 6), an affidavit of the Applicant (Ex 2), who also gave oral evidence and was required for cross-examination. [104] The Respondent relied upon an outline of written submissions dated 5 June 2025 and a supplementary note dated 1 August 2025 (the RSUB and RSN respectively) which were supplemented orally, a Statement of Ms Ange Royal (Ex 5), two statements of Ms Lee Burdett-Symons dated 26 May 2025 (Ex 7), and 6 June 2025 (Ex 8), both Ms Royal and Ms Burdett-Symons were required for cross-examination and gave very brief oral evidence, and a number of documents.74 [105] The Respondent sought to rely upon an affidavit of Dr Moriarty, but he was unavailable for cross-examination (despite an appropriately timed request for him to be made available). For the reasons explained in Joseph Wright v Industrial Relations Secretary (on behalf of the Dept of Primary Industries and Regional Development) [2025] NSWIRComm 1035, the affidavit of Dr Moriarty was not received in evidence. [106] Following the conclusion of the hearing, at the request of the Commission the Respondent (with the Applicant’s agreement) advised the amount the Applicant “would have received had he acted in the Program Leader North East position between 18 November and 5 December 2024 is $892 (gross).”75 [107] In light of the position of the parties reflected in the above, it is not in dispute that: (1) The Applicant is an employee of the Respondent; (2) The two matters relied upon to establish a detriment described at paragraph [3] above, occurred. That is, as a matter of fact it is not in issue that: (a) The Applicant was denied the opportunity to act up in the position of Ms Burdett-Symons for the three- week period commencing late November 2024 (see paragraphs [75]–[81] above); (b) The Respondent (Dr Moriarty) did issue an email to the Applicant dated 8 October 2024, which the Applicant asserts (and the Respondent denies) amounts to a written warning (at [83]–[95] above); or that (c) Dr Moriarty was the sole decision maker behind each of these two actions. (3) The Applicant has alleged the two detrimental actions were taken because of (or for reasons that included) the protected characteristics in s 210(1)(a), (g), (h) and (j). The Respondent denies any of the protected attributes in s 210(1) apply to the Applicant’s circumstances. Page 22 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [108] In this case, the two “threshold matters” (as the Applicant’s counsel described them76) the Applicant must establish are: (1) Whether the alleged detriments the Applicant suffered at the hands of the Respondent are sufficient to ground a finding of victimisation. (2) Whether the Applicant has or has done something that enlivens a protected attribute in s 210(1) of the IR Act. [109] If the Applicant establishes these two propositions, the issue becomes whether the Respondent has rebutted the presumption arising from the operation of s 210(2) by establishing that the alleged protected characteristics were not a substantial and operative cause of the detrimental action or actions. [110] I raised with counsel whether the second of the ‘threshold’ propositions was a threshold fact that must be established by an Applicant, in light of the words of s 210(2) and what was said by McHugh JA in PSA v Cmr of Police [2025] NSWSC 624 at [44] (emphasis in original): …it may not strictly be necessary for the applicant to establish the existence of a protected matter before the presumption is engaged; it is at least arguably sufficient that a matter referred to in subsection (1) … is alleged by the applicant to be the cause of the detrimental action. [111] The Applicant submitted it was an overstatement to say an applicant had to demonstrate the protected characteristic existed in fact. The contention was illustrated by a hypothetical example: an employee who alleges they suffer detriment because they claimed an award benefit such as annual leave, need not demonstrate they in fact had sufficient accrued annual leave to support their request before the protected characteristic would be established.77 For this case, by way of illustration, the Applicant’s evidence demonstrated he had acted on the basis that a range of people in the PSA had authorised the comments he made in the media — the fact the PSA rules may have technically not been adhered to (which was not conceded) would not deny a contention action was taken because the Applicant “is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees” (s 210(1)(a)).78 [112] The Respondent submitted the observations of McHugh J in PSA v Cmr of Police extracted above were “throwaway obiter comments” or a “passing observation”,79 and the proper approach is reflected in the existing jurisprudence of this Commission, and in particular Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 (and the authorities referred to therein) — “one doesn’t’ even get to looking at what the reasons are until the objective elements are proven”.80 [113] In light of my findings below, it is not strictly necessary to determine this question, but for my part, I do not think it correct that an Applicant must establish the characteristics in s 210(1) as a matter of fact in every case before the rebuttable presumption may arise. With respect to the members of this Commission who have expressed a different view, as McHugh J suggested in the extract above, that is not what s 210(2) in fact says. In terms, the presumption in s 210(2) of the IR Act arises when an employee alleges that the cause of detriment is a protected characteristic (emphasis added): “it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action”. In terms, all that is required is that detriment be established and the Applicant alleges one of the substantial and operative reasons for that detriment (the cause of the detrimental action) was a matter referred to in subsection (1). [114] The reverse onus exists because “the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer”.81 There does not appear to be anything in the terms or policy informing the section that requires the Applicant to establish the characteristics in s 210(1) exist as a matter of fact. [115] For example, if an employer had acted to an employee’s detriment because the relevant decision maker believed an employee to be a member or official of a union when they were in fact not, or because they believed an employee had proposed to participate in proceedings in relation to an industrial matter when they had not (and so on), a contravention may nonetheless still be established. In that hypothetical, the subjective reason of the decision maker, even though mistaken, would nonetheless have been infected by the protected characteristic: the relevant action was nonetheless taken for the substantive and operative reason of the protected characteristic. Albeit directed to the meaning of the word “prevent” in the relevant provisions in the Fair Work Act (2009)(Cth), as was observed by the Full Court of the Federal Court in Qantas Airways Ltd v Transport Workers Union of Australia (2022) 292 FCR 34 at [128]: … it is at least arguable that an anti-victimisation provision focused upon the perceptions of the perpetrator which seeks to Page 23 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 protect an attribute or the exercise of some capacity or right, may extend to action taken because that capacity or right is mistakenly imputed to the targeted person. As Bromberg J said in Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139 at [70]: Victims of various forms of discriminatory conduct are protected not only against action taken because the victim has a particular attribute (for example sex, race, religion or disability) but also where such an attribute has been wrongly imputed to the victim. In relation to persecution for reasons of a protected attribute as a criterion for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth), Burchett J (with whom O’Loughlin and Nicholson JJ agreed) said (at 568) in Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565: The words “persecuted for reasons of” look to [the persecutor’s] motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken. Hitler’s ghastly views about race, for instance, led to persons being classified as Jewish who had appropriately regarded themselves as German; the perception of the authorities was then the important reality which determined their fate. [116] Nonetheless, that is not a matter that needs be determined as on the evidence before me I am satisfied the Applicant has established detriment and facts consistent with three of the s 210(1) protected attributes relied upon exist in fact (as described below). Even absent the fourth asserted protected characteristic, the rebuttable presumption is engaged. CONSIDERATION Detriment — General Observations [117] The Applicant bares the onus of demonstrating he has suffered a detriment at the hands of the Respondent.82 To afford a Respondent procedural fairness, an applicant must identify, precisely and clearly, the detriment alleged to have been suffered.83 The Applicant has plainly done that here. [118] What amounts to a ‘detriment’ for the purpose of Part 1 of Chapter 5 of the IR Act was not in any real doubt: (1) The Applicant submitted84 the concept of detriment has been given its ordinary broad and general meaning: “to cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment”, extending to matters which may have indirect adverse impacts on employees (as opposed to the direct loss of remuneration), such as the loss of opportunity to work.85 It is a question of fact, that looks broadly to whether the employee is worse off than if the impugned act or omission had not occurred. (2) The Respondent accepted the word “victimise” does have a broad meaning,86 and in that connection means to cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment.87 But it nonetheless has to be a real and appreciable detriment, and not merely a theoretical detriment. That does involve a question of degree. Something de minimis would not be enough, but more than that, it also it has to be something “which does amount to a diminution of right or some prejudicial alteration”.88 [119] Detrimental treatment grounding a finding of victimisation can, on its face, involve the exercise of or a right or entitlement (such as a dismissal on proper notice, or the invocation of a disciplinary process etc). It is the purpose for which the action is taken (the substantial and operative cause) that may render it a contravention of the freedom of association protections in s 210 of the IR Act.89 Alleged Detriment — Denial of Acting Up Opportunity [120] It is not in dispute that Dr Moriarty denied the Applicant the opportunity to act up in Ms Lee Burdett-Symons position of Program Leader, North East for a period of 3 weeks. [121] The Applicant argued the fact he had initially expressed some reluctance to take on the acting up opportunity, or may not have been particularly keen to do it, is irrelevant to the question of detriment.90 The benefit to him of that opportunity was not trivial. Dr Moriarty’s decision directly denied the Applicant the opportunity to obtain a financial benefit of the acting up period,91 and denied him the indirect career development benefit of acting in a higher position.92 Page 24 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [122] Whether the Applicant had in fact been properly offered the opportunity by Ms Burdett-Symons, given her limited authority under the Delegation Manual and the fact Dr Moriarty hadn’t authorised the offer in advance, was also said to be irrelevant. Dr Moriarty denied him the opportunity in circumstances where, on the evidence of Ms Burdett-Symons, he would have worked it but for Dr Moriarty’s intervention — it was submitted intervention in this context is still nonetheless an act,93 and one that operated to the Applicant’s detriment. It ought be uncontroversial that the Applicant suffered a detriment from Dr Moriarty denying the Applicant the opportunity to act up for that period. [123] The Respondent said the Applicant had not in fact been properly offered the acting up opportunity, as Ms Burdett-Symons did not have authority to make that offer independently of approval from Dr Moriarty:94 as such, it was not a direct loss, but at best a lost opportunity. The Respondent maintained this was not a detriment because the Applicant had only begrudgingly agreed to undertake the 3-week acting up opportunity. On the Respondent’s case, it is not sufficient to just say there is a lost opportunity for earning an allowance, because that came with the higher level of responsibility and work — the very reason the Applicant said he did not express an interest in the first place. If what was lost was not real and valuable, it is not a detriment.95 The Respondent argued the evidence in this case is the Applicant saw this acting up opportunity as a burden, not a benefit, and in those circumstances, to deny the opportunity is not a detriment. Consideration of the First Detriment [124] The evidence in this connection is summarised above. Whether Dr Moriarty had finally ‘signed off’ on the Applicant acting in the relevant period or not, I accept the unchallenged evidence of Ms Burdett-Symons that but for Dr Moriarty’s intervention (notably, the only time she can recall this ever having happened), the Applicant would have performed the acting up role. Dr Moriarty denied him that opportunity by refusing to accept Ms Burdett- Symons arrangement with Mr Audet and the Applicant. In doing so, he denied the Applicant not only the remuneration for the acting up position (which of course came with the added responsibilities of the role), but also denied him the developmental opportunity it presented, the experience the opportunity presented, and denied him the opportunity “to help the team and keep people, support people out there doing what they’re employed to do.” [125] I do not accept the fact the Applicant was reluctant to express an interest when initially invited, but did when later approached directly, means he has lost nothing of real and appreciable value in denying him the opportunity after he had agreed to do it. The Applicant explained his reluctance to complete the EOI process — it was not only because of the time that EOI preparation required (as described above), but also because he was frustrated because the implementation of the EOI process disturbed a practice that, in his view, had worked well.96 He otherwise knew, based on experience, that Ms Burdett-Symons would come to him and Mr Audet if no-one expressed an interest. That is what happened. [126] I readily accept by refusing the Applicant the opportunity to act up in the position of Program Leader, North East, in accordance with the arrangement proposed by Ms Burdett-Symons and agreed to by the Applicant, the Respondent, through the decision and actions of Dr Moriarty, imposed a real and appreciable detriment on the Applicant. Alleged Detriment — 8 October 2024 email [127] In summary, the Applicant argued: (1) The email was sent by Dr Moriarty — the Director of the FCU, not the Applicant’s immediate manager. It was not some minor informal correction one may expect from time to time by their immediate manager. From the terms of paragraphs 2 and 3 of the email, it arose from (at least) an allegation of a breach of the code of conduct and requires the Applicant to undertake training — “a clear criticism of conduct and the imposition of an obligation”.97 (2) The email reflects the start of a process. The fact the email was not the product of a formal misconduct process contemplated by the GSE Act and GSE Rules does not mean it isn’t a warning in the ordinary sense of the word, or a detriment. In an industrial context it is the kind of action that weakens an employee’s position in that they are on “thinner ice” in future potential disciplinary contexts.98 The degree of jeopardy is irrelevant — on any view, having received this letter (which is to remain on his file and would not have been if it were insignificant),99 the Applicant is placed in a less secure position than before. It is not a mere informal ‘talking to’ of the kind rejected as a detriment by Wilcox CJ in Finance Sector Union v ANZ Banking Group.100 It is at the least, a threat of repercussions for activity101, or amounts to the employer having put their point of view on his conduct that would affect what would happen on any further occasion.102 It was prejudicial to his interest in a not immaterial way, and as such is a detriment. Page 25 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [128] In summary, the Respondent argued: (1) The email was a remedial and educative step, not a punitive one: its purpose was to remind the Applicant of existing obligations with which he must comply.103 It was expressly said it was not a formal warning. The label applied by the Respondent is not determinative, but it is not immaterial that a caution and reprimand is a formal step taken under s 69 of the GSE Act, after the process of allegation/investigation/finding contemplated by the GSE Rules. Whether a communication such as this is something that has a real and appreciable prejudicial effect on the Applicant needs to be seen in that statutory context. The email was at its highest an “informal counselling” and as such not victimisation.104 (2) The fact it was to be retained for future reference “doesn’t necessarily mean it’s going to be looked at in a way which might be taken into account as a formal strike on your permanent record for the purposes of taking any future action”,105 it’s not necessarily prejudicial to his employment. Things that fall on the ‘educative and remedial’ side of the line, are not victimisation. Simply reminding the Applicant of his responsibilities and requiring him to again undertake a training program is not victimisation. On one view, they are a benefit to an employee. Consideration of the Second Detriment [129] The email of 8 October 2024 from Dr Moriarty is plainly a document issued to alert the Applicant that in his view the Applicant had breached “the Code of Ethics & Conduct in relation to Professional Standards”, and to caution him against doing it again by threatening “the commencement of formal misconduct procedures against [him] in accordance with s 69 of the Government Sector Employment Act 2013” if he were to make “further public comments about NSW Fisheries and/or the activities of the Department without approval” in the future. It was plainly designed to (at the least) stop the Applicant’s participation in the PSA FCU Campaign, to the extent his participation involved him answering media enquiries from the PSA media unit. In its terms, the email is a reprimand and a caution — or as the Applicant described it, a written warning. The Respondent’s labelling of the email as something other than the formal step of caution or reprimand contemplated by the Government Sector Employment Act 2013106 following the application of the processes described in Part 8 of the Government Sector Employment (General) Rules (“This email does not serve as an official warning”), does not change its substantive character. There is simply no other way to reasonably read the email when viewed in context. Nor, in light of the meeting on 30 September 2024, and the emails exchanged between Dr Moriarty and members of the SLT about the 8 October 2024 email and the meeting that was to follow it (discussed below), do I have any doubt that is precisely how Dr Moriarty intended it. [130] The email was not a mere face to face “informal rebuke or request that supervisors often find it necessary to administer to subordinates”.107 Dr Moriarty was not the Applicant’s immediate supervisor. The email was drafted by a Senior HR business partner for Dr Moriarty. It was issued to the Applicant by the Director of the FCU and was to be followed by a formal online Teams meeting at which the Applicant would clearly be given a dressing down “verbally”108 for his conduct. The email is clearly in the nature of a caution or reprimand. It may not have the same effect as a formal caution or reprimand under the GSE Rules, but in my view, it plainly places the Applicant in a less secure position than he was prior to it having been issued. No doubt that was the purpose in it being “retained by the HR Business Partner (HRBP) for future reference if required.” It was a real and appreciable detriment to the Applicant. Protected Characteristics — General Observations [131] The question in this connection is whether the Applicant had any of the protected characteristics listed in s 210(1) of the IR Act. The Respondent quite rightly submitted that in order for it to be afforded procedural fairness, the Applicant must specifically identify the protected characteristic or characteristics alleged to be the reason for the detrimental action relied upon. The Applicant has plainly done that in this case. In that connection, as noted above, the Applicant relied upon subsections 210(1)(a), (g), (h) and (j) as the substantial and operative reason (or at least part of such reasons) for taking the two alleged detriments. It is convenient to deal with each of them separately. In that connection, the proper approach requires me to consider each of the grounds relied upon.109 Section 210(1)(a) — Member, Official, or other elected representative of employees [132] Section 210(1)(a) is extracted above. It prohibits victimisation because the person “is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees.” [133] It is not in dispute that at all relevant times, the Applicant was not only a member of the PSA (and a member of the “workplace group”110 of the union known as the FOVB), but was also an elected delegate of the PSA, the Page 26 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 FOVB Acting Secretary and Acting Chairperson, and a member of the PSA’s Central Council. It was also not in dispute that he was chosen by the FOVB membership to be the appointed contact person for media enquiries111 connected to the PSA FCU Campaign. [134] In summary, the Applicant argued: (1) Section 210(1)(a), protecting union delegates, extends to protecting persons from victimization because of both their bare status as a delegate and due to an exercise of legitimate activities in the role of delegate: TWU v CWU Transport (1990) 39 IR 8; Newcastle Steel Works Case (1961) AR 48; AWU v Bluescope Steel Ltd [2006] NSWIRComm 1092.112 (2) The Applicant, in making the media comments and otherwise participating in the PSA FCU Campaign (including by attending the conciliation proceedings, and subsequently being a witness in those proceedings), was acting as a delegate of the PSA and office holder in the FOVB. It was a collective decision of the members of the FOVB to have an FOVB delegate act as a contact point for any media comments relating to the PSA FCU Campaign. The PSA itself, through its media unit, made the arrangements between the Applicant and the relevant media organisations. The media campaign involved the Applicant making commentary in conjunction with the Assistant General Secretary, Mr Troy Wright. The Applicant at all times understood he was authorised by the PSA to do what he did, as part of the PSA FCU Campaign. (3) The Applicant accepted that not everything a delegate or elected representative does in that capacity is protected by s 210(1)(a) (election as a delegate does not confer a magic cloak of immunity)113, but there is no basis to find that it was illegitimate for the Applicant, an elected delegate and branch official of the FOVB, at the behest of the PSA and in conjunction with the Assistant General Secretary, to participate in a campaign (by making media comments) directed to the safety of the working environment of the FOVB members. This is not a case where the union’s rules prohibited what the Applicant did. At best (and this was not conceded), it would amount to nothing more than a technical non-compliance with the PSA Rules. That would not take the Applicant’s conduct beyond the protection afforded by s 210(1)(a) of the IR Act for legitimate activities of an elected delegate and branch official. [135] The Respondent, in summary, argued: (1) Section 210(1)(a) protects an employee from victimisation because of their status as a member, delegate or elected representative, not because of the activities they may carry out in that connection.114 (2) The Applicant’s complaint is that the Applicant was acting in his role as a PSA delegate in making the media comments. This is not an alleged contravention of s 210(1)(a) as it focuses on activities as a delegate rather than status as a delegate. (3) In the alternative, even if s 210(1)(a) does protect a delegate from activities as a delegate, it can only be understood to protect legitimate activities as a delegate acting in that capacity. Illegitimate activities as a delegate are not protected. What is legitimate activity for a delegate falls to be assessed by reference to authorities discussing the role of a union delegate, relevant legislation and industrial instruments115, and the relevant union rules (in this case, Ex 10).116 In that connection, the Applicant’s media commentary was not within the legitimate bounds of what a delegate may do under the Award, the PSA Rules, or the PSA delegate handbook: (a) Section 5 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009, deals with Union Consultation, Access and Activities: (i) The Award prescribes the responsibilities of a PSA delegate. They include participating in the workplace consultative processes, following the dispute settling procedures, distributing PSA literature/membership forms; and using any facilities provided by the workplace properly and reasonably as negotiated at organisational level. In addition, the Award provides that a PSA delegate may engage in certain union business when on duty, and is entitled to paid leave in others. (ii) The PSA has responsibilities under the Award in relation to delegate activities. For example, cl 60.1.1 of the Award requires that the PSA provide written advice to the Department Head about PSA activity to be undertaken by an accredited delegate and, if requested, to provide written confirmation to workplace management of the delegate’s attendance/participation in the activity. Page 27 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 The Applicant maintained that he was speaking to the media on behalf of the PSA, but the PSA did not provide written advice of this activity as required under cl 60.1.1. (b) The PSA Rules and By Laws (and Chapter F, General By-Law for Workplace Groups, paragraph (o)) provide that a workplace delegate’s duties include receiving and investigating grievances of work group members, accompanying members to disciplinary interviews as a support person, participate in workplace negotiations with local management, promoting the objects, policies and decisions of the PSA, distributing union material, recruiting new members and maintaining regular contact with members. Specifically as to press statements, rule 143 of the PSA Rules, dealing with Administration, provides:117 The General Secretary and/or the President shall be the only authorised officers of the Association in whose names official letters or press statements shall be issued. Providing that the Executive and/or Central Council may grant authority where special circumstances exist and such special circumstances are elated to the advancement of Association policy for this procedure to be varied. (c) The PSA Delegates Handbook, said to “constitute a written direction made to delegates regarding the proper performance of their role”,118 describes the role of a delegate as the “date to day face of the union in the workplace” and their functions in similar terms to the Award. Relevantly, consistent with the PSA’s Rules, the Handbook states that a delegate’s functions include representing members in the delegate’s area in negotiations with management, acting as a conduit between members and the union, helping members with industrial matters, acting as a support person, promoting union membership and activity and attending local and joint consultative meetings. (d) The Handbook records limitations placed on a delegate’s role, including that delegates are obliged to “meet the code of conduct of the relevant agency.” Relevantly, the Handbook states that: (i) delegates are also expected to follow management directives, as they have a duty of service to their employer, regardless of their disagreement with the direction; (ii) delegates are prohibited from making any negative comments about their employer on social media; (iii) if delegates are approached by the media, the journalist should be referred to the union for comment. Relevantly, the Handbook warns that “[t]here have been cases where members have been disciplined or sacked for speaking to the media and allegedly bringing their employer into disrepute” and therefore all media requests should be referred to PSA. [136] The Respondent submitted even if s 210(1)(a) does extend to legitimate activities of a delegate, the protections do not extend to activities outside these boundaries including the making of media comments in breach of the Respondent’s Code of Conduct and the Department’s guidelines and procedures. The Applicant’s activities did not fall within the protection conferred by s 210(1)(a) of the IR Act. Scope of s 210(1)(a) [137] The terms of s 210(1)(a) are clear: the protection afforded by s 210(1)(a) is against victimisation because the employee “is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees”. It does not directly afford protection against any particular activity in that capacity. The authorities referred to by the Applicant do not say “the protection extends to protecting persons from victimisation because they are a delegate and due to their exercise of legitimate activities in the role of a delegate”: cf ASUBR at [8]. To the extent protection is conferred by s 210 directly for activities undertaken, it is to be found under other subsections such as (relevant to these proceedings) s 210(1)(d), “exercises functions conferred under this Act”, or in the IR Act in its present day form (that do not apply here), subsections such as ss 210(1)(c), (d), (f), or (g) “engages or proposes to engage in industrial organising activities”, “refuses to engage in industrial action or another industrial organising activity”, “exercises or proposes to exercise functions conferred under this Act”, or “has a role or responsibility under industrial relations legislation or an industrial instrument” etc. Page 28 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [138] That does not mean, however, that activities performed as a delegate are irrelevant to the operation of s 210(1)(a). The authorities relied upon by the Applicant demonstrate that when action is taken against a delegate because of their activities in the role of a delegate, an inference may be drawn that action is taken against the relevant employee not merely because of what they have done, but in fact because they are a delegate or other representative. [139] The debate between the parties as to the reach of s 210(1)(a) harks back to one of the differences between the judgments of Barwick CJ and the majority of the Court (Mason J, with whom Gibbs, Stephen, and Jacobs JJ had agreed) in General Motors Holdings v Bowling (1976) 51 ALJR 235. [140] The proceedings before the High Court in Bowling came on appeal from a decision of the Australian Industrial Court, in which the Industrial Court had convicted the appellant for a contravention of 5 of the Conciliation and Arbitration Act 1904 (Cth) (the C&A Act), a historical analogue of s 210 of the IR Act. The worker at the heart of the proceedings, Bowling, was a shop steward at the appellant’s works at Elizabeth in South Australia. He was dismissed in the context of a fractious industrial dispute that had involved work to rule bans and apparent industrial sabotage (acts with which Bowling had apparently expressed some sympathy in newspaper articles that appeared on the morning of his dismissal). [141] The relevant union rules did not expressly confer any particular role or responsibility on Bowling as a delegate in dealing with that dispute (or the media comments), but he nonetheless had involved himself in various workplace issues and disputes, including the bans. The dismissal was communicated to Bowling by the plant superintendent, and was said to have been because of his “unsatisfactory attitude to the job and to supervision.” The evidence of the plant superintendent was not accepted as reflecting the real reason for dismissal. The decision to dismiss had in fact been made by two directors based in Melbourne, neither of whom gave evidence in the proceedings (albeit based on a recommendation of the South Australian plant superintendent). [142] The central question for the majority of the Industrial Court was whether the decision makers “were actuated by the circumstances that the informant was a shop steward.” Their Honours noted that the factors that influenced the minds of the decision makers was exclusively within their knowledge, and after having considered a number of matters that might have actuated the directors to dismiss concluded: “it would be quite reasonable and well within probability that the employer … might be actuated by the circumstance that this zealous and restless employee held the office of shop steward and was likely to use it in a way regarded by the employer as detrimental to its interests.“ Absent explanation from the decision makers, the majority of the Industrial Court found the company had not discharged its onus (s 5(4) of the C&A Act having a similar reverse onus in dealing with the reasons for dismissal to that found in s 210(2) of the IR Act) and convicted it. [143] The relevant provisions of the C&A Act were s 5(a) and (f), and relevantly stated: An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee— (a) is or has been or proposes, or has at any time proposed. to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or … (b) being an officer. delegate or member of an organization. has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial … interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. Penalty: Four hundred dollars. [144] Barwick CJ would have allowed the appeal. On his Honour’s reasoning there was a “radical error” displayed in the reasoning of the majority in the Industrial Court “in that no separation was effected between the fact of the holding of the office [dealt with in s 5(a)] and the industrial activities of the employee unconnected as they were with his office of shop steward or with its duties [dealt with in s 5(f)].” [145] Mason J, with whom the other members of the Court agreed, dismissed the appeal. His Honour observed (emphasis added): Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that Page 29 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 hypothesis was not displaced by the appellant. To hold that, despite the sub-section, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which in my view is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge. I would for my part, accept the finding that the principal reason for the dismissal was that the appellant considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others. Even so, this finding does not carry the appellant the whole distance. It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward . No doubt this is an advance which could be made if officers of the appellant had said in evidence “We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward” and that evidence had been accepted. Yet this evidence was not given and, even if it had been given , there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware . It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant’s management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward. … We are left, then, with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the respondent was a shop steward. If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal. However, I have already said enough to indicate why the possibility cannot be so regarded — the respondent’s office as a shop steward endowed him with a special capacity to influence others and was therefore not easily dissociated from his ability to set an example to others. [146] In dealing with the distinction between status and activities, Mason J observed (at 242D, emphasis added): The appellant sought to give emphasis to the distinction to be drawn between s 5 (1) (a) and s 5(1)(f) and argued that the activities of a shop steward fell under par. (f) and not par. (a). So much may be conceded, but this does not avail the appellant in the present case because we are concerned not with activities undertaken by the respondent in his capacity as a shop steward but with activities otherwise undertaken and the example that he set to others in which his position as a shop steward was of particular significance. [147] Bowling does not stand as authority for the proposition that the equivalent to s 210(1)(a) of the IR Act prohibiting victimisation because an employee “is or was a member or an official…or otherwise an elected representative of employees” protects activities undertaken in that capacity per se: cf ASUBR at [9]. Rather, it stands as an illustration of how industrial activity by a member, delegate or other elected representative may support an inferential finding that such status was a substantial and operative reason for victimisation absent an appropriate explanation to the contrary (or perhaps more accurately, how absent an innocent explanation by the decision maker, a respondent may fail to rebut the presumption created by the equivalent of s 210(2) when evidence is otherwise consistent with actions being taken because the employee was a delegate or other elected representative). [148] The decision of Maidment J in Transport Workers’ Union v CWU Transport (1990) 39 IR 8 is another illustration of inferences drawn in the absence of evidence from the decision maker. [149] Re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No 2) (the Newcastle Steel Works Case) [1961] ARNSW 48, dealt with the dismissal of a delegate following his involvement in organising a strike and remaining on site to organise a stop work meeting in defiance of a direction by the employer to leave. In the course of dealing with a contention that the dismissal was harsh or unjust because, even if some of the conduct was open to criticism, “everything that [the delegate] did … was done by him in his capacity as delegate and that it was unjust Page 30 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 for the company to dismiss him, and him alone, when he was acting in a representative capacity”, the Commission said (at 66): Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union. It is basic to our system that employees should be organized in industrial unions and it is through such unions that approach must be made to the tribunals set up. Men who are willing to play a part in the affairs of an industrial union are entitled to expect that they will not be prejudiced in their employment because of any legitimate actions they take in any union office they assume. Indeed, it is an offence under s 95 of the Industrial Arbitration Act for an employer lo dismiss an employee or injure him in his employment or alter his position to his prejudice by reason of the fact that the employee is an officer, delegate or member of a trade or industrial union. But, while this Commission will be vigilant to protect the position any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions. [150] Those observations were made in the context of dispute proceedings in which it was alleged the dismissal of the relevant delegate was harsh and unjust. It was not a passage construing the reach of the predecessor to s 210(1)(a) of the IR Act (cf ASUBR at [9]), and does not stand as authority for the proposition that s 210(1)(a) protects the activities of a delegate per se. The reasoning does, however, reflect the potential for an inference to be drawn that action taken against a delegate for lawful and legitimate activity in the role of delegate was taken because they were a delegate, including so as to remove a delegate to avoid future legitimate organising activity. [151] That is again reflected in the final case relied upon by the Applicant. In Australian Workers Union v BlueScope Steel Ltd [2006] NSWIRComm 1029, Commissioner Conner dealt with a dispute in which a delegate was disciplined for calling a stop work meeting. The Commissioner said (at [35]–[39]): …The position of a trade union delegate is protected by S.210(1)(a) which makes it an offence for an employer to victimise an employee because he: …is or was a member or official of an industrial organisation of employees or otherwise an elected representative of employees… An employer is navigating dangerous waters if he victimises an employee as a consequence of his conduct as a trade union delegate, no matter how unhelpful the employer may have viewed the employee acting in that capacity [Transport Workers’ Union of Australia v CWS Transport Services Pty Ltd (1990) 39 IR 8]. … That having been said, the role of trade union delegate is no licence to act in an inappropriate manner. A trade union delegate will not be excused conduct which for any other employee would be grounds for censure. In the Newcastle Steel Works Case (1961) AR 48 the Full Bench of the former State Industrial Commission (Richards, Beattie and Kelleher JJ) commented in that respect (at p.66) as follows: …While the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions… But it is Mr Pleli’s assertion that he was doing no more than what he was directed to do by other employees (which naturally enough he declined to name). As I outlined in my unreported decision of Thursday, 13 July, 2000 in Gorman v BHP Integrated Steel Division [Matter No IRC 4242 of 1999 at pp.31 and 32), I accept that the position of trade union delegate is often a thankless job — an intermediary between workers and management with the individual taking the heat from both sides. A trade union delegate doing no more than his job as delegate, whether or not the action he took in that respect was proper in the opinion of the employer, would be entitled to expect that his employer would respect his legitimate activities in that role as a delegate. For instance, in my unreported decision of Friday, 25 July, 2001 in O’Brien v Linfox Ltd [Matter No.IRC 6240 of 1999 at pp.34 and 35] I found the reason for the dismissal of a trade union delegate was so linked with his legitimate role in that capacity as to make it unfair. And in my unreported decision of Tuesday, 21 September, 2006 in Transport Workers’ Union of New Page 31 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 South Wales v Premier Illawarra Pty Ltd [Matter No.IRC 3653 of 2004] I removed a warning notice from the personal file of a trade union delegate because I was satisfied that his actions had been only a reflection of the collective decision of the employees whom he represented. What then is the legitimate role of a trade union delegate? … [152] The Commissioner ultimately concluded that the activity of the relevant delegate was not legitimate activity as a delegate because the stop work meeting was not relevantly authorised under the union’s rules. [153] Another illustration, albeit here resulting in the rejection of the evidence of a decision maker, can be seen in the judgment of Wilcox CJ in FSU v ANZ Banking Group (2002) 120 FCR 170 where his Honour dealt with an alleged contravention of an historical analogue of s 210(1)(a) in the federal system arising from disciplinary action imposed on a union official (a Ms Buckland) because of her involvement in facilitating and participation in industrial action at a bank branch she managed, and media comments she had made on the precarious state of women in the banking industry during an interview with a newspaper journalist. There, like here, there was no issue that Ms Buckland’s conversation with the journalist and other actions in connection with the action) arose because of her position in the union and at the request of the union.119 [154] The decision maker, a Mr Inglis, had given evidence that in making his decision to discipline Ms Buckland for her actions on the day of the industrial action and in her communications with the media, he was not influenced by Ms Buckland’s position in the union. Wilcox CJ did not accept that evidence. Having observed that the relevant conduct by Ms Buckland that led to the disciplinary action was “intimately associated with Ms Buckland’s position in the FSU”,120 his Honour referred to evidence Ms Buckland’s position in the union had been “a point of antagonism between them” from their first meeting, and continued: It is important to note that, at no stage, has Mr Inglis impugned Ms Buckland’s integrity or general competence as a branch manager. All the issues raised by him have arisen out of her FSU position and activities. Given that these have shaped Mr Inglis’ attitude to Ms Buckland, it would be naïve to accept his assurance that they had nothing to do with his decision, on “the day of industrial action”, to require her to attend for counselling and his subsequent decision to issue a formal warning. I cannot find, to paraphrase Mason J, that those decisions were divorced from the circumstance that Ms Buckland was a senior FSU officer. [155] On the evidence as a whole, his Honour found the Bank had not rebutted the presumption that the disciplinary action was imposed for reasons that included Ms Buckland was an officer of FSU121 despite Mr Inglis’ evidence to the contrary. [156] The Application alleges a contravention of s 210(1)(a), referring to both the Applicant’s status as a PSA delegate (and member) (at [2], CB pg 3) and activities carried out in that capacity (at [3], CB pg 3). I do not accept the Applicant has narrowed that claim (cf RSUB [23] and [24]). The ASUB [23(c)] and [24], and ASUBR [8], similarly refer to both the fact the Applicant was a delegate and in that capacity (in that “role”) was interviewed by media outlets as part of the PSA FCU Campaign. As said at ASUB [24], “He alleges that Dr Moriarty’s decision was actuated by one or more of each of these” factors (noting that observation is in reference to the whole of [23], which refers to each of the grounds of s 210 relied upon). [157] In my view, s 210(1)(a) protects an employee against victimisation because they are a member, delegate or other elected representative. It is not necessary to determine whether the Applicant participating in media interviews at the request of and organised by the PSA, was strictly within the terms of the PSA Rules, the PSA Delegates Handbook, or the relevant provisions of the Conditions Award. That may be necessary if the Applicant had relied upon the protected attribute arising from the exercise of a function conferred by the IR Act (s 210(1)(d)), or in the more recently enacted s 210(1)(g) “has a role or responsibility” under the IR Act or an industrial instrument, but not here. As in Bowling, the employer may well fail to discharge the rebuttable presumption that action was taken because an employee was a delegate, even if actions taken by the delegate in that capacity were not strictly within their express authority under the relevant union rules. [158] At all relevant times the Applicant has been a member and elected delegate of the PSA, and additionally held other elected positions within the FOVB, including as the person nominated by the FOVB executive to be the spokesperson for the PSA FCU Campaign. That was consistent with his role as the acting Chair of the FOVB (a workplace group under the PSA Rules). In that capacity, he was to be “a leading union spokesperson in the workplace…They lead and encourage other delegates and members, will usually be the union contact for management and assign work to other WPC members”.122 He has suffered detriment at the hands of the Respondent. He has alleged the detriments I have found were imposed because, amongst other allegations, of the fact he was a delegate. That is enough to engage the rebuttable presumption in s 210(2). Whether that was in fact Page 32 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 one of the substantial and operative reasons for Dr Moriarty’s decisions is to be assessed on the whole of the evidence at a later point in these reasons when considering s 210(2). [159] I should, however, record that I do not accept that as a general proposition, a delegate (such as the Applicant) would be acting beyond what may be considered the legitimate activity of a union delegate by promoting or participating in a campaign being run by their union, when they do so at the request of the senior officers of that union (in this case, the Assistant General Secretary, Troy Wright), including by speaking to journalists organised by the media unit of that union about proceedings before the Commission. [160] General statements about the proper role of a workplace delegate in decisions dating from the early to mid- 1960’s (such as the observations of Commissioner McCreadie of the former Australian Conciliation and Arbitration Commission in Garden Island Dockyard Case (1964) 107 CAR 806 at 810 –811, or that of the Full Bench of the Industrial Relations Commission in the Newcastle Steel Works Case [1961] AR(NSW) 48 at 88: cf RSUB [52]) cannot be accepted as an exhaustive statement of the legitimate activity of such a delegate in 2025 (even if they could be taken as an exhaustive statement at the time they were published, itself a doubtful proposition). [161] Each case will turn on its own facts, but as a general proposition the ordinary campaigning activities of a union today will almost inevitably use both broadcast and social media to prosecute their advocacy on important social and political issues, and to protect and advance the industrial interests of their members (and those of the workers in the industries they represent more generally). That will often be done as part of a broader public strategy connected with dispute proceedings before an industrial tribunal (or other litigation). I recognise it is but one illustration, but in Kidman v Casino Canberra Ltd,123 “promoting union campaigns” was but one of the roles of the delegate in that case. As was observed by the ACT Civil and Administrative Tribunal in Kidman at [39]: Exerting public pressure on an employer is a commonplace and legitimate industrial activity. Obtaining publicity by participating in interviews with a local newspaper is lawful activity often used by industrial unions to advance the views and interests of their members. [162] The comments in previous decisions of various courts and tribunals, and the PSA rules and Handbook to which the Respondent referred, were all directed to the role of a delegate when making decisions or taking action independently of and not at the request of the union: in other words, what the rules etc specifically permitted or required of a delegate when making independent decisions in discharge of that role. Whatever may be said about the authority of an elected delegate to independently act under a relevant union’s rules without deference to the union or more senior union officials, absent some express prohibition in the relevant rules, I can see no reason why it would not be an entirely legitimate activity for a union delegate to participate in a campaign relating to the industry in which they work at the request of and in conjunction with the senior officials of their union. Whether that activity fails to attract one of the protections in s 210 of the IR Act for some other reason is a different question. [163] I should add that I do not accept there was a prohibition in the PSA Rules on the Applicant’s participation in the campaign in this case: the Applicant’s interviews with journalists were not an official letter or press statement124 on behalf of the PSA. The PSA issued an official press statement independently of the Applicant.125 The Delegates Handbook expressly recognises, having stated if approached by media to refer journalists to the union for official comment, that: “The General Secretary can authorise PSA staff or delegates to speak on his or her behalf on certain matters”.126 There was no direct evidence of authorisation by the General Secretary. However, I infer from the fact the media unit, an area under the control of the General Secretary (who is the CEO of the PSA under its Rules), and the direct involvement in the PSA FCU Campaign of the Assistant General Secretary, that the General Secretary authorised the PSA FCU Campaign and the Applicant’s involvement (as the elected spokesperson by the FOVB) within it. Section 210(1)(h) — Public or Political Activities [164] The Application alleges the Applicant “Engaged in public and/or political activities, as a delegate of the PSA, including to make public statements through media outlets in respect of the industrial interests of fisheries officers”.127 It is obviously not in dispute that Applicant did make public statements through media outlets in respect of the industrial interests of fisheries officers in his capacity as a PSA delegate, in respect of the industrial interests of fisheries officers. I recognise the Respondent argued the Applicant’s conduct was not legitimate conduct of a delegate in communicating in the media, but that is not a relevant consideration under s 210(1)(h). [165] The Respondent submitted: (1) The Applicant’s media statements did not amount to a public or political activity within the meaning of s 210(1)(h) of the IR Act:128 and in any event Page 33 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 (2) The protection in s 210(1)(h) did not apply because the media statements made by the Applicant “interfered with the performance of his duties”.129 [166] The substantive issues are: (1) Whether, by making those media statements at the request of the PSA, in connection with the PSA FCU Campaign the Applicant engaged in a “public” activity and/or a “political” activity; and if so did it (2) Interfere with the performance of the Applicant’s duties as an SFO in the FCU? [167] The Applicant accepted the section is not intended to cover everything done in public,130 but “Properly understood, [this subsection] is directed at employees participating in activities of any description involving, among other things, advocacy in support of their rights, beliefs and/or interests, or in support of those of others”131, or as it was put in oral submissions “activity that has a public flavour, a public or political flavour…Its not public and political, its community minded or community focused or acts of that nature”.132 [168] It was submitted the Applicant “participated in a public and political activity, being the media campaign in support of the PSA’s industrial agenda relating to the safety concerns” 133 for its FOVB members: “Here we’re talking about advocacy and support of rights and advocacy, specifically and expressly, it’s one of the things that Mr Wright is criticised of, to influence the government because some of the changes just simply cannot happen without legislative effect. It’s more nuanced than that. It’s influencing the government by putting pressure on the department to ask the Minister to do things but it’s the same character”.134 [169] As for whether the Applicant’s conduct was a public or political activity, the Respondent’s submissions may be summarised as follows: (1) The concept of a “public or political activity” in s 210(1)(h) has a much narrower focus that simply being anything which might be relevant to public debate or public policy:135 political, meaning a change in government and public meaning something of an official or governmental character.136 (2) A “political activity” is an activity “in the exercise or non-exercise of a public power, namely, legislative, executive or judicial power and bears on government or concerns the relationship between the government and the governed”.137 Cognate expressions using the adjective “political” such as ‘political opinion’, ‘political belief’, ‘political offence’ and ‘political refugee’ have been connected with political control or government of the country or the machinery, processes, form, role, structure, feature, purpose, obligations, duties or some other aspect of government or the state.138 (3) Generally, a distinction is made between action taken for an industrial purpose and action taken for a political purpose. For example, a distinction may be drawn between industrial action that is politically driven as against that which is directed to bargaining.139 (4) The word ‘political’ is not coextensive with general matters of public policy. Contrary to AS [19(a)], the use of the adjective ‘political’ has not been found to convey the broader meaning of “advocacy in support of [an employee’s or other’s] rights, beliefs or interests”. (5) As for “public” activity,140 the Commission has held that a reference to public activity is restricted because of its context, so that not all public activity is protected simply because it is done in public.141 Read contextually, the words ‘public’ and ‘political’ are to be construed to have analogous meanings; that is, the activity has been engaged pursuant to a public function concerning the affairs of government or pertaining to the community142, reflecting one of the ordinary meanings of the word “public” when deployed as an adjective143 (and consistent with its usage in similar expressions such as ‘public officer’, ‘public authority’, ‘public office’ or ‘public service’ to connote a person appointed to discharge a duty of public office in the interests of the public, or the engagement in activities of governmental or official character)144. (6) A union does not perform the role of a governmental or public body, and its powers and functions are not administrative in nature but rather its role is to act as an industrial representative of employees (so it is not a competent administrative authority).145 A union and their officers and delegates perform a private function in representing the industrial interests of employees.146 (7) The Applicant’s media comments were not made in the exercise of a public function or in a public capacity or did not concern the exercise or non-exercise of public power. Nothing the Applicant did in his media commentary involved him in the discharge of his public role as a fisheries officer, and the commentary was not directed to changing the government. Making media comments was no part of his role as a fisheries Page 34 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 officer.147 He did not engage in a public or political activity by making the media comments on 29, 30 September and 8 October 2024.148 [170] As for whether the Applicant’s conduct interfered with his duties, the Respondent’s submissions can be broadly distilled to these propositions: (1) Part 2 of the GSE Act provides the ethical framework for the government sector. Section 7 defines the “core values” of the government sector and sets out principles that guide their implementation. Those values include the values of integrity and trust. The object of the framework includes recognising “the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day” (s 6(a)) and establishing an ethical framework for, amongst other things, “an apolitical and professional government sector that implements the decisions of the Government of the day” (s 6(b)).149 The Code of Conduct provides practical guidance in applying and gives effect to these core values. (2) In commenting on the federal public sector equivalent, the High Court in Comcare v Banerji (2019) 267 CLR 373 observed such objects and values “continue a long tradition of professionalism and political neutrality of officers within departments of State for the administration of which Ministers of State are constitutionally responsible and politically accountable” which forms the foundation for Australia’s political inheritance of the Westminster system of responsible government.150 It is essential to the proper functioning of the system of representative and responsible government that the government have confidence in the ability of the public service to provide high quality, impartial, professional advice, and that the public service will faithfully and professionally implement accepted government policy, irrespective of their individual personal political beliefs and preferences.151 For that reason, the High Court found that social media comments by a public servant (even made on an anonymous basis) risked “damaging the integrity and good reputation of the APS as an apolitical and professional public service”.152 As a public servant, the values therefore mandate that there be a “level of circumspection in the expression of a political opinion in a discussion with a journalist” Banerji [2019] HCA 23; 267 CLR 373 at [93]. (3) To the extent that his comments were critical of Government policy on operational matters, and were in breach of the Code of Conduct (relating to conflicts of interest and communications with the media), the Applicant’s media statements tended to: (a) undermine and damage the integrity and good reputation of the NSW public service and his perceived ability to perform his functions in a professional and apolitical manner by faithfully serving the Government of the day;153 and (b) give rise to an apparent conflict of interest between, on the one hand, his obligations as a public servant to serve the NSW Government and not to undermine its policies and, on the other hand, his own interests and the PSA’s interests. The conflict of interest meant that Mr Wright’s action may be perceived to be prejudicial to the NSW Government’s interests and displayed a lack of impartiality when he commented publicly on NSW Fisheries’ operations and policy without authorisation.154 (4) A member of the public service must adhere to the core values of the public service. In that connection it was said public servants “need to support the decisions of the government of the day” because a failure to do so “can undermine what we would say is an apolitical public service”.155 The Applicant was “expressing a view which may undermine that apolitical nature and demonstrate a conflict of interest”, the conflict in this case said to be between “the personal views and industrial position of the union which is in opposition to the position taken by the department, especially in circumstances where [the Applicant] has [the implementation of government policy] as one of his statutory functions”. The Applicant’s conduct “was contrary to his duties and substantially interfered” with them. The Applicant’s conduct was not protected by s210(1)(h). What are public or political activities? [171] Despite the substance of s 210(1)(h) first appearing as s 95(b2) of the Industrial Arbitration Act 1940,156 following its amendment by the Industrial Arbitration (Amendment) Act 1943, there are but a few decisions considering the meaning of the words “public or political activity” in this jurisdiction. [172] There are a number of analogous statutory protections against detrimental treatment for undertaking political activities and/or holding political beliefs in anti-discrimination legislation around the country, and in the Fair Work Page 35 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 Act 2009 (Cth). I am not aware of (and the parties did not direct my attention to), any equivalent legislative protection for any “public” activity. [173] The first decision I am aware of dealing with the notion of “public” activity under s 95(b2) of the Industrial Arbitration Act was in 1949. Cantour J said this in rejecting a contention that a worker’s participation in a disputes committee amounted to a “public” activity:157 Without attempting to give an exhaustive definition of the words ‘public activity’ — because the question was not argued in any detail — it seems to me that they were intended by the Legislature to apply to activity such as activity pertaining to the people of a country or of a community, or to the people of a locality; or pertaining to the people as a whole; or activity of a person pertaining to the affairs or services of the community; or actions devoted or directed to the general welfare; or the like. (The Oxford English Dictionary.) I am quite clear that the activity of Farrell as a member of the Disputes Committee was not public activity within the meaning of section 95 of the Act, and so it is not activity of the character that would support a prosecution for a breach of the section, even if a case were made that he was dismissed because of that activity. [174] The only other decision I am aware of (or that the parties have drawn to my attention), is that of Commissioner Sloan in Shand v Secretary, Dept of Transport (2018) 282 IR 200(Shand). Commissioner Sloan did not give an exposition on what the phrase “public” activity should mean other than: (1) The Commissioner’s observation (at [22]–[24]) that the word “public” needs to be read in context, such that “the term “public or political activity” should not be construed as equivalent to “public activity or political activity” ”. (2) The Commissioner’s observation that the ordinary and grammatical meaning of the word “public”, divorced from its context, would give rise to an unacceptably wide meaning, as it would mean any activity done in public would be subject to the relevant protection (at [25], [41]). (3) Jury duty was not a public or political activity within the meaning of the phrase in s 210(1)(h) (at [41]–[42]. [175] The proper approach to construction must begin with a consideration of the text itself. The language which has actually been employed in the text — its ordinary and grammatical English meaning viewed in context — is the surest guide to legislative intention. By examination in context, what is meant is viewing the particular words as part of the relevant instrument viewed a whole. In particular, the general purpose and policy of the provision when viewed in that way, and the mischief it is intended to remedy.158 [176] As Commissioner Sloan observed, despite the disjunctive “or” in the expression “public or political activity”, read in whole, I agree the word “political” should inform the meaning of the word “public” (and vice-versa). Respectfully, however, I do not agree that it would be wrong to read the expression “public or political activity” as capturing conduct capable of characterisation as either or both public activity and political activity (cf Shand at [24]). The disjunctive “or” cannot be entirely ignored. In this context, it also cannot be read as the conjunctive “and”. The words public and political when deployed as a characterisation of activity are not necessarily coextensive. [177] Additionally, the meaning to be given to the phrase is informed by its appearance as one of a number of subparagraphs designed to create behavioural norms in the conduct of industrial relations. Those behavioural norms are part of the “fair and just” framework for the conduct of industrial relations that the IR Act creates.159 The protection to employees and prospective employees afforded by the Freedom of Association and Freedom from Victimisation protections are one of the key mechanisms by which the IR Act seeks to “encourage participation in industrial relations by representative bodies of employees and employers …”.160 It is beneficial legislation that ought not be read narrowly161. The remedial or beneficial purpose is relevant to the construction of s 210. That said, I recognise legislation rarely pursues a single purpose at all costs, and usually involves striking a balance between competing interests (as s 210(1)(h) self evidently does). That principle has utility when assessing an interpretation of beneficial legislation that would, if accepted, be detrimental to the persons intended to benefit. But the principle says nothing about the extent to which a provision is intended to benefit a person. As always, the balance of competing interests must ultimately be determined by reference to the text of the provision read in context.162 [178] The word “activity” in this context would, if given the ordinary English meaning best suited to its legislative context, mean “a specific deed or action; sphere of action: social activities ”,163 “Something which a person, animal, or group chooses to do; an occupation, a pursuit. Frequently in plural.”164 [179] In context, the word public is deployed as an adjective qualifying the word “activity”. When deployed as an adjective, the word “public” may have several meanings. The Macquarie Online Dictionary identifies them as including: 1. of, relating to, or affecting the people as a whole or the community, state, or nation: public affairs. Page 36 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 2. done, made, acting, etc, for the people or community as a whole: a public prosecutor. 3. open to all the people: a public meeting. 4. relating to or engaged in the affairs or service of the community or nation: a public official. 5. maintained at the public expense, under public control, and open to the public generally: a public library. 6. open to the view or knowledge of all; existing, done, etc, in public: the fact became public. 7. having relations with or being known to the public generally: a public character. [180] As would be apparent from these sometimes subtly different meanings, the characterisation ‘public’ in each case distinguishes the private, whether it be relating to the interests represented, the interests affected, or the context in which the thing was done or by whom it was seen or known. A public activity is not necessarily the same thing as any activity done in public: an activity may be “of or relating to, or affecting the people as a whole or the community…”, an obvious example of which may be lobbying for legislative reform in relation to matters of industrial relations, and yet not be an activity open to all the people or open to the view or knowledge of the public generally (albeit it may be). It is the activity itself that must have the requisite public character. [181] Section 210 of the IR Act gives statutory protection from victimisation for exercising certain workplace rights, including rights enshrined in international human rights instruments, such as the right to freedom of association.165 The various placita of s 210 operate to protect “employees or prospective employees” against victimisation because of, amongst other matters, things they do in connection with industrial matters or in connection with or relating to a workplace (the making of claims or complaints about matters pertaining to industrial matters, including health and safety, or the participation in proceedings relating to industrial matters etc). [182] I do not accept a “public activity” is confined to an activity using powers, duties or authorities for the public benefit.166 That would not operate contextually. It would not meet the object of protecting any prospective employee for a public activity (such activity, if construed in that way, only being available in the discharge of a power, duty or authority that would require existing employment), or any employee outside of the government sector (such employment not likely having such a power, duty or authority, noting the phrase has been in the same form since 1996 when jurisdiction of this Commission included the private sector). It also would not, if given such a constrained meaning, have any application to action by an industrial organisation towards an employee or prospective employee.167 [183] The first of the ordinary meanings of the word public would appear the best suited to the context of s 210. In my view, public activities are specific deeds or actions by a person or group that relate to or affect the people or a community generally. That view is broadly consistent with the preliminary view expressed by Cantour J in Barclay v Lake George Mines Pty Ltd (1949) 48 AR(NSW) 557 extracted above. However, I would not think it essential that the activities of the employee or prospective employee be directed to the people or community as a whole. [184] To be a public activity, the relevant activity obviously needs to be directed to interests beyond the private interests of the individual employee or prospective employee. However, the broader context of the IR Act includes the object “to encourage participation in industrial relations by representative bodies of employees and employers …”.168 The Freedom of Association and Freedom from Victimisation provisions self-evidently facilitate that object (amongst others), by ensuring employees may participate in the public or political activities of such organisations without fear of victimisation (qualified by the activity not interfering with the performance of the employee’s duties). [185] Representative bodies of employees or employers are typically organised along industry and/or occupational lines. Whilst the activities of representative bodies of employees and employers may well be directed to the people or community as a whole, such as lobbying or other activity directed to reform of generally applicable laws (such as the IR Act, the Work Health Safety Act, or the like), or issues of general public interest (such as changes visited upon industry by an event such as World War II, noting the genesis of the provision in 1943, or the impact of artificial intelligence on society and workplaces), the activity of such organisations are often directed to the industries or occupations whose interests they are eligible to represent. Construing the notion of “public” activity as including activity directed to furthering or protecting the interests of an industry or occupation, being but a portion of the community or public viewed as a whole, would capture activity sufficiently divorced from the interest of the individual employee to be properly characterised as “public activity”. Such an approach would better reflect a purposive and beneficial construction,169 and facilitate the Objects of the IR Act. [186] As for “political” activity, there is again limited assistance to be gained from previous authority of this jurisdiction. In Fire Brigade Employees Union (NSW) v Fire and Rescue (NSW) (2016) 259 IR 252 (leave to appeal being refused Fire Brigade Employees’ Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050), it was not in doubt that a Captain and Station Commander of a metropolitan fire station had engaged in political activity by allowing his photograph, together with an endorsement, to appear in an election pamphlet for Page 37 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 someone standing as a candidate for a seat in the 2015 NSW State election (published during the pre-election Caretaker period). [187] When deployed as an adjective, the word “political” may have a number of relevant meanings. The Macquarie Online Dictionary lists amongst them: 2. of or relating to the governing of a nation, state, municipality, etc: political measures. 3. exercising or seeking power in the governmental or public affairs of a nation, state, municipality, or the like: a political party. 4. relating to or connected with a political party, or its principles, aims, activities, etc: a political campaign. 5. affecting or involving the state of government: a political offence. 6. engaged in or connected with civil administration: political office. 7. having a definite policy or system of government: a political community. 8. of or relating to citizens: political rights. [188] The Oxford English Dictionary Online lists amongst them: 1a. Of, belonging to, or concerned with the form, organization, and administration of a state, and with the regulation of its relations with other states… 3. Involved, employed, or interested in politics; that takes a side, promotes, or follows a particular party line in political debate. Also (somewhat derogatory): having regard to or affected by the interests of a party or parties rather than principle; partisan, factious… 4. Having an organized form of government or society… 5. Relating to or concerned with public life and affairs as involving questions of authority and government; relating to or concerned with the theory or practice of politics. [189] As mentioned above, there are a number of examples of legislative protection from adverse treatment because of political conviction/opinion or political activity found in anti-discrimination legislation,170 and in the Fair Work Act 2009 (Cth).171 The Equal Opportunity Act 2010 (Vic), like many of its equivalents across the country, define the phrase “political belief or activity” to mean (emphasis added) “(a) holding or not holding a lawful political belief or view; (b) engaging in, not engaging in or refusing to engage in a lawful political activity”, but does not define the term “lawful political activity” (nor do its equivalent in other statutes across the country). [190] Those authorities may be of some assistance, but those deriving from protections against an employee’s political opinion or political conviction ought be approached with some caution, particularly where they examine the asserted opinion through its manifestation. The holding of a political opinion and the expression of a political opinion are not necessarily co-extensive: see for example the caution expressed by Perram J in Quirk v CFMEU (2021) 398 ALR 39 at [279] –[282]. [191] Many of the authorities dealing with those analogous provisions draw on the ordinary and grammatical meaning of the word “political” when characterising the belief, conviction or activities captured by the relevant expression.172 For example: (1) Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805 Vincent J endorsed the reasoning of the Equal Opportunity Board of Victoria, that adopted that ordinary meaning (at 816): It is to be noted that in dealing with this question the board adopted, and in my view quite correctly, the ordinary dictionary meanings of the word political in connection with the legislation, so that it was construed as pertaining to government policy, administration and the like. (2) In CPS Management v Equal Opportunity Board (1991) 2 VR 107, again speaking of the expression political belief and political activity in the Victorian discrimination legislation, Marks J having noted what Vincent J had said in Nestle, said (at 111–112): Although as Vincent J, correctly, I think, observed in Nestle, it is unnecessary to attempt an all- Page 38 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 embracing exposition of the meaning of “political belief”, or for that matter, “political activity”, in s 4(1), it can be safely said that a requisite qualifying characteristic is that the belief or activity is one which bears on government. This means that a belief is not political where it has no bearing on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government. (3) LaRoche v President and Members of the Equal Opportunity Board (1991) EOC 92-361, in which Gobbo J of the Supreme Court of Victoria applied both Nestle and CPS Management (at 78,478) in rejecting a contention that public submissions to an inquiry into the reform of the ambulance service was a “political activity”, because: “such activities and/or beliefs by the applicant do not affect or alter the structure of government, the balance of forces within government or the composition of government. Further…the kind of conduct on the part of the applicant in the reform of the Ambulance Service cannot be seen as bearing on government or on its form, role, structure, feature, obligation, duty or any other relevant aspect of government.” (4) In Nevil Abolish Child Support v Telstra Corp Ltd [1997] VADT 44, the Victorian Anti-Discrimination Tribunal, having referred to Nestle, CPS Management, and LaRoche said: In our view, a belief or activity will also bear on government if it concerns the relationship between government and the governed — that is, the citizens of the society in question. (5) In Sayed v Construction Forestry Mining and Energy Union (2015) 327 ALR 460, Mortimer J (as her Honour then was), discussed the meaning of “political opinion” in s 351 of the FW Act by reference to decisions in refugee law173 and anti-discrimination law (at [164]–[177]). Her Honour embraced the general meaning of the word ‘political’ in concluding a member of a political party engaging in the activities of that party (what her Honour described as the manifestation of a political opinion), seeking to “bring about change to governments, and to government policies and priorities”, held a political belief. Her Honour’s discussion was recently referred to with approval by Rangiah J in Lattouf v Australian Broadcasting Corp (No 2) (2025) 341 IR 105. His Honour, having accepted (at [109]) that decisions interpreting the expression “political opinion” in s 351 of the Fair Work Act were equally applicable to the expression “political opinion” in s 772 of the Fair Work Act, said (at [110]): The expression “political opinion” within s 772(1) of the FWA encompasses the opinion of an employee about the policies or actions of the government of a country or its armed forces. (6) In Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 at [104], another case dealing with the expression “political opinion” in s 351 of the FW Act, Manousaridis J said (at [103]–[104], emphasis added): … “Political” certainly pertains to the actual and conceivable institutions and principles by which a society is, or should be, or may be, governed so that an opinion about any of these matters would be a political opinion. But “political” applies to more than this; it also applies to political activity, and to the matters to which such activity is directed at any given time. Political activity is directed to the exercise or non-exercise of public power. Public power, both at the Commonwealth and State levels, is divided into legislative, executive, and judicial power. Political activity, therefore, is directed to such matters as proposals or policies for the enactment, repeal, and amendment of primary and delegated legislation; the formulation, implementation, modification, or abandonment of policies relating to the exercise of executive power; the probity, efficiency, and quality of the exercise of executive power; and the quality, efficiency, and consequences of the exercise of judicial power. An opinion is political if it is about, or if it relates to, any one or more of the matters to which political activity may be directed, or about the persons who engage in such activity, or about the manner in which such activity is conducted, or about the institutions through which or by which such activity is undertaken. Examples of political opinions would include opinions about the suitability or ability of persons engaged in political activity; or about the merits or demerits of existing public institutions; or Page 39 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 about the merits or demerits of proposed legislation; or about whether or not a subject not previously regulated by statute should now be regulated; or about the merits or demerits of a particular policy a minister of the government is implementing; or about a particular minister’s performance of a power vested in him or her; or about the wisdom of a particular decision of a court. (7) KI v Retail Store [2023] TASCAT 10 at [24]174 in rejecting a complaint that service was denied in a retail setting because of opinion expressed as to the appropriateness of female only spaces (and associated matters), was not within the scope of protection as “Neither the activity, nor the beliefs can be classified as political because when objectively viewed they do not bear on government or concern the relationship between the government and the governed.” [192] In its ordinary meaning, viewed in context, I would consider political activity to at least include specific deed/s or action/s by an employee or prospective employee, that is directed to, or directed to influencing, the form, organisation or administration of government, including deeds or actions directed to, or directed to influencing government policy (which I would understand to include deeds or actions directed to proposals for the enactment, repeal or amendment of legislation or delegated legislation), or the relationship between the government and the governed. [193] One of the clearest examples of political activity are activities associated with a political party “such membership and involvement being one of the quintessential ways in which people seek to bring about change to governments, and to government policies and priorities”.175Shand was an obvious example. But an activity is not political merely because it is motivated by a political belief or ideology:176 a person’s political beliefs may lead him or her to do things which are not, by their nature and when viewed objectively, political. It is the activity itself which, when objectively viewed, must by its nature or purpose be political. However, there may be cases where the nature or purpose of an activity will be political because it so intrinsically involves the political beliefs of the people carrying on the activity that it takes its character from the expression of those beliefs. An example is a public meeting, the sole purpose of which is to express protest about a clearly political issue (see for example Williams v Council of Shire of Exmouth [1990] EOC 92–296). Some activities will be clearly political in their nature. Membership of or affiliation with a political party is one of these (Evershed v City of Geraldton [1995] EOC 92–745). But there are many cases in which the line of demarcation between political and non-political activities will be difficult to draw and will depend on the facts of the particular case. [194] It is the activity itself that must have a political character. For example, media comments on the management of the CFMEU and the legitimacy of the Royal Commission in the context of the Royal Commission into Trade Union Corruption, “one of the most heated political debates of the day”177, was political activity (being the manifestation of a political belief). In both Thorne v R (1986) EOC 92–182 and Oldham v Women’s Information and Referral Exchange (1986) EOC 92–158, media comments made to gain public support for changes in police practices and age of consent laws (Thorne), and media comments directed to secure public support to oppose an extension of affirmative action laws into small business (Oldham), were political activities because they were directed to influencing government policy. [195] The Respondent, however, sought to draw a distinction between activity characterised as industrial rather than political. I do not accept such a generic delineation is of any real utility in applying s 210 of the IR Act. [196] In Nestle v Equal Opportunity Board, one of the seminal decisions on the meaning of “political activities” in the context of discrimination law, Vincent J found the Equal Opportunity Board of Victoria had no jurisdiction to hear and determine complaints of unlawful discrimination by 5 workers (all union shop stewards) who were refused re- employment, after having been dismissed in the course of an industrial dispute. They had each participated in or organised a picket line during the dispute, and otherwise described themselves as active shop stewards who had supported the relevant union in various activities. They claimed the refusal to re-employ them, after they had made applications for employment in response to advertisements in a local newspaper, was based on their union activities. They had not, however, asserted those union activities were as a result of lawfully held political beliefs or engagement in political activities.178 [197] The Board had taken the view “that as the participation in union activities by a particular complainant may well have been motivated by a lawfully held political belief, discrimination based upon any such participation could therefore constitute discrimination as a result of the holding of a political belief or the engagement in political activities”. Vincent J held such an approach had “difficulties”, emphasising “A distinction must be drawn between political activities and those which although motivated by some political belief cannot be so characterised”179 and “If Page 40 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 the alleged discrimination is based upon the involvement or the refusal to engage in a particular activity, then it is the activity which must possess a political character”.180 [198] His Honour observed the Board had, “quite correctly”, adopted “the ordinary dictionary meanings of the word ‘political’ in connection with the legislation, so that it was construed as pertaining to government policy, administration and the like”,181 but qualified that meaning of the words when viewed in context, concluding (at 819): The legislation was clearly not intended, in my view, to encompass behaviour of the kind in which the plaintiff in the present case is alleged to have engaged. I find it very difficult to accept the proposition that the legislature intended by the use of the words political belief to bypass the entire body of law and the structure which have been established at both the Federal and State level to deal with the type of purely industrial relations questions which have arisen in the present matter. These considerations reinforce my opinion that the term political” should be given the meaning ascribed to it by common usage which is concerned with the processes of government and, not in general, the structure and interactions of industrial relations. [199] His Honour did, however, in a lengthy but nonetheless important passage (given the debate in the present proceedings), discuss the nature and role of trade unions within the Australian polity, observing many activities of individuals in connection with the advocacy of trade unions may well be properly characterised as political (at 814– 816): In the present case it has been contended on behalf of the second to the seventh-named defendants that belief or participation in the industrial policies and activities of a trade union possess characteristics and relate to matters to which, as a consequence of the role performed by such bodies in our society, the epithet “political” may be property applied. According to this argument no sensible distinction can be drawn between what might be termed the “industrial” and the “political” activities of trade unions and, in any event, their operations possess such importance to the functioning of government at all levels that they should be perceived as an integral part of the body politic. The right of employees to enter freely into combinations or unions for their mutual protection and advancement has, of course, long been accepted as fundamental to the operation of a democratic society. The existence, denial, or even the restriction, of such a right in a given community represents one of the criteria by which the distribution of power including governmental power has been assessed and by means of which the particular community has itself been characterised. However the relationships normally under consideration in such analyses are those which can be seen to bear upon the rights which exist between ordinary members of the society concerned and the individuals or groups which control its government. Attempts to so combine have many times been regarded, as the history of a number of different parts of the world clearly demonstrates, as political activities. On the other hand it is correct, I think, to state that generally speaking in our society, at least at the present time, where the existence of this right is not in issue, its exercise is not necessarily so characterised. Distinctions can be properly drawn between activities undertaken by trade unions which take place within the existing framework of government structures, relationships, and policies, to some of which the designation “industrial” can be applied, activities which although not directed to affecting or controlling the framework itself may have important implications with respect to the approaches of policies adopted by governments and those which are directed in some fashion or other to affecting the framework itself, perhaps by altering its structure, the balance of forces within it, or the composition of the government at one or other level. As a matter of general observation about which it would hardly seem necessary that evidence should be required, there can be little doubt that the activities of trade unions in this community have not only on occasions had substantial influence upon the operations of government at a number of different levels but also upon the determination of which political party or persons control its machinery. In other words, some of these organisations have, from time to time, been engaged in activities which according to even the most restricted definition of the term would be regarded as “political”. However, it must be emphasised that these comments are directed to the possible areas of operation and methods adopted in pursuit of objectives which have been associated with trade unionism generally is Australia. Whether or not they have application to any particular body or in any given set of circumstances is a matter about which appropriate evidence would be required. It is, I think, sufficient for present purposes to state that no simple demarcation can be effected between the industrial and political activities of trade unions in the Australian context. Accordingly, it may well be arguable in some circumstances and with respect to particular organisations that a belief in the “industrial” policies of a particular trade union may be, on this basis, regarded as incorporating a “political” belief. Page 41 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 As it is difficult to separate these notions when considering the role and activities of organisations, so also is it difficult to do so when the beliefs or activities of those who participate in or who find themselves at odds with their objectives, affiliations, and methods of operations, are taken into account. [200] There is no contextual difficulty of the kind discussed by Vincent J in Nestle in construing s 210: the IR Act is part of the body of law developed at the State or Federal level to which his Honour referred. The deployment of the phrase “public or political activity” in a statute framed to create behavioural norms in an industrial relations context would no doubt have been intended to capture an employee or prospective employee’s participation in trade union activities that could properly be characterised as public or political, even if it could also be characterised as industrial. [201] In characterising the Applicant’s conduct, there is no evidential difficulty of the kind identified in CPS Management — it could not be said of the PSA FCU Campaign in which the Applicant participated, that “There is nothing …which suggests that [the PSA] put pressure on the government or attempted to do so or took any particular step in that direction”.182 Obtaining public support for the legislative reform the PSA sought to drive was all about putting pressure on government. Unlike the situation in Nestle, the Applicant here did not assert that by being a delegate and undertaking general organising activity (such as organising and participating in a picket during an industrial dispute), it could be inferred that the activities he undertook were political. The Applicant’s participation in media interviews in his own time and at the request of the PSA, facilitated through the media unit of the PSA, involved the Applicant participating in a campaign advanced by the PSA involving both industrial and political pressure (in the form of garnering public support through the general media) directed to driving legislative reform in connection with commercial fishing activities, for the purpose of improving the safety of members of the FCU in performing their work. [202] In my view, subject to the qualifying words “unless it interferes with the performance of the employee’s duties”, a union member and delegate engaged in a public campaign of the kind being prosecuted by the PSA, directed to changing laws to enhance the safety of workers, is perhaps the quintessential illustration of what the legislature must have had in mind when inserting a protection against victimisation for employees or prospective employees engaging in “public or political activity” when crafting the Freedom from Victimisation provisions in the context of the IR Act. Interference with the performance of the employee’s duties [203] The “public or political activity” the Applicant relies upon is the giving of interviews to media outlets at the request of the PSA in his own time, in connection with and as part of the PSA FCU Campaign. The public or political activity relied upon was not the Applicant having participated in work bans. As such, when considering whether that activity interfered with the performance of the Applicant’s duties, the focus is on the Applicant having given interviews to the media (and what he said in that connection). [204] The Respondent did not argue anything done by the Applicant in connection with the giving of interviews physically interfered with him performing his work in the FCU. The Applicant’s evidence that the media interviews were done in his own time (off duty or when on a break) and so did not interfere with the performance of work when on duty, was not in doubt. [205] The Respondent’s entire argument in this connection is directed to the operation of workplace policies maintained by the Respondent: in particular, the Respondent’s Code of Conduct and Ethics, the Internal Media Procedure, the Media Spokesperson Guidelines, and the Fisheries Compliance Enforcement Policy and Procedure. [206] It was not in dispute that the Applicant, as a member of the Department (part of the public service) employed under the GSE Act, was at the relevant time bound by the Department’s Code of Ethics and Conduct183(the Code), and each of the other policies identified by the Respondent. Of course, the GSE Act must be read harmoniously184 with other legislation of the same polity, including the IR Act and the behavioural norms that it seeks to establish. [207] I note a broader Code of Ethics and Conduct for NSW Government Sector Employees185 which applies across the public sector in lieu of a local departmental equivalent, that seeks to give effect to the Government Sector Core Values186 came into operation on 1 November 2024.187 It did not apply to the Applicant as at late September/ early October 2024 and need not be discussed further (it is a matter, however, to be taken into account in framing relief). However, the Code in evidence has “May 2020” on its front cover, but identifies it was “first published” on 1 July 2020. Its copyright statement refers to “State of New South Wales through DPIRD 2024”. The document name is “RDOC 24 /63475”. There is language consistent with the generic post 1 November 2024 Code of Ethics and Conduct for NSW Government Sector Employees. I have some concern that this form of the Code was not the form of the Code in effect at the time of the Applicant’s conduct in late September/early October 2024. However, in the absence of any particular issue having been raised about it, I will proceed on the basis Ex 3 was Page 42 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 the proper form of the Code (or at the least, there was no material difference with what did apply if it were something else). [208] The Respondent’s argument was not expressly put as reliant upon either a contractual or statutory duty said to be owed by the Applicant, albeit insofar as the Code was concerned the submission was it gave “practical guidance in applying and gives effect to” the core values in s 7 of the GSE Act. I note s 8A(3) of the GSE Act (commenced in 2022) may be said to create a duty to comply with the terms of a Code of Conduct adopted under that section, but it was not said the Code, being a document specific to the Department, operated in that way. [209] The parts of those various policies relied upon (to the extent specific parts were relied upon) are in the nature of a restraint. They are dealt with in detail below, but broadly described, restraints on the making of media commentary as a departmental spokesperson, and in conduct that could create a potential conflict of interest. [210] The point was not argued, but there may be some doubt as to whether in crafting an exception from a protection for undertaking certain activity, said exception being grounded in the interference with the performance of the employee’s duties, the legislature had a policy obligation (meaning ultimately a contractual obligation) to refrain from doing something in mind. [211] The ordinary meaning of “duties” in this context would appear to be (my emphasis): “action required by one’s position or occupation; office; function: the duties of a soldier; the duties of a clergyman”.188 “The action which one’s position or station directly requires; business, office, function.”189 [212] The ordinary meaning of the word “performance” viewed in context would appear to be: “execution or doing, as of work, acts, or feats”.190 “The accomplishment or carrying out of something commanded or undertaken; the doing of an action or operation…. The carrying out, discharge, or fulfilment of a command, duty, promise, purpose, responsibility, etc; execution, discharge.”191 [213] The verb “interfere” in context would appear to mean: “to come into opposition, as one thing with another, especially with the effect of hampering action or procedure: these interruptions interfere with the work. (of things) to strike against each other, or one against another, so as to hamper or hinder action; come into physical collision”.192 “Of things, actions, etc: To come into collision or opposition, so as to affect the course of.”193 [214] Reference to “the performance of the employee’s duties” would appear to be directed to the execution, doing, carrying out or accomplishment of action required by the employee’s position, occupation or station. The exception in the protection against victimisation because of public or political activity in s 210(1)(h) “unless it interferes with the performance of the employee’s duties”, if the words used are given their ordinary and grammatical meaning viewed in context, operates to deny protection for activity that would hamper or cause a collision or opposition with the execution, doing, carrying out or accomplishment of action required by the employee’s position, occupation or station. [215] As noted above, the Respondent did not identify any action required by his position as an SCO within the FCU, that was hampered by the Applicant having undertaken the media interviews in his own time at the request of the PSA. Rather it was said that by making the “unauthorised media comments” and failing to comply with the allegedly relevant restraints, “his activities interfered with the performance of the Applicant’s public functions and obligations such that s 210(1)(h) did not apply as a protection” (RSUB at [92]). [216] There is a tension in the idea the exception operates to exclude protection for activity that hampered the performance of a contractual restraint. If an “employee’s duties” in s 210(1)(h) captures an employee’s contractual duty to comply with an employer’s reasonable and lawful directions (or perhaps a more direct contractual restraint on activity), including by way of a standing direction in the form of a policy or a Code of Conduct, the important protection afforded by the section could be avoided by a mere administrative fiat. Construing the word “duties” in this context as capturing as a contractual obligation (in terms, or as a duty to comply with a reasonable and lawful Page 43 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 direction) to refrain from undertaking activity would denude the protection intended to operate to the benefit of employees or prospective employees to a significant extent (potentially altogether, depending on the terms of the relevant direction or contractual term). That outcome seems so improbable and impracticable as to suggest it is unlikely to have been intended. The ordinary meaning of the words used suggest what was excluded from protection was public or political activity that interference with the ability of the employee to do their job (for example, absenting themselves for work to participate in a protest or picket), not compliance with a policy or contractual restraint. The submission was directed to another issue, but I would agree with the thrust of Mr Saunders submission for the Applicant: The fact that there’s a code that might say, “You’re not allowed to do this at all” isn’t really the question, the Code is subject to the legislation rather than the other way around”.194 [217] On another view, at a factual level, it may be that a direction (or standing direction in the form of a policy) that denuded the employee’s capacity to engage in a public or political activity was not a reasonable and lawful direction. Again, that was not a proposition argued in this case. [218] In light of the conclusion I otherwise have reached, it is unnecessary to finally determine the point, and in the absence of having heard from the parties it would be inappropriate to do so, but I have real doubts as to whether public or political activity that is inconsistent with a restraint contained in a policy (or perhaps by way of an ad hoc direction, rather than a standing direction of that kind) is interference with the performance of the employee’s duties for the purpose of s 210(1)(h) of the IR Act at all. [219] Turning then to the argument as mounted, the Code records that it “sets out the standards of behaviour expected of all departmental employees”, and applies to “all employees of the Department”.195 It records the “Department works to the same ethical framework and values and almost 400,000 other public sector employees”, said framework (reflecting s 6 of the GSE Act):196 — recognises the role of the government sector in preserving the public interest, defending public value, and adding professional quality and value to the commitments of the Government of the day, and — establish an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day. [220] Under the heading “Professional Standards”, the Code states “We all want to be part of a workplace that helps make NSW a place where people want to live and work, and business choose to invest and grow”. To that end “we need to perform our roles to the best of our abilities and meet or exceed commitments by …” a list of actions, and “We need to foster effective collaboration within and between teams”, which is said to mean: — Contributing to decision-making through open, honest and timely advice, — Once a decision has been made, implementing that decision to the best of our abilities — Complying with reasonable requests from your people leader [221] It records “We should take care of ourselves and our workmates” and continues to touch on communication of “the work the Department is doing and how it aligns with the government’s position” (emphasis added):197 We should effectively communicate the work the Department is doing and how it aligns with the government’s position. For this reason, it is important that: — Only authorised employees comment publicly on the activities of the Department, including having conversations with journalists or posting on social media — Public speaking engagements are approved before commitments are given. [222] The Code is crafted in general terms and itself recognises it operates with other Departmental policies (“To make it easier for people to understand their responsibilities this Code links to extra information and procedure where required. It also links directly to supporting systems, where these are available”).198 Relevantly, the Respondent also led evidence of extracts of an “Internal Media Procedure”,199 and “Media Spokesperson Guidelines”200 (I recognise they are not referred to in the Code itself, unlike some other matters). The Procedure states (emphasis added): Department of Regional NSW staff may be approached by journalists or media organisations asking for information about a project or policy. This can occur via phone, email or person, particularly at events. Page 44 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 Staff who are approached for comment should politely refer queries to their agency media team, either by phone or email… … Contact the media team for advice before agreeing to any media interview or activity [223] The Guidelines identify a “media enquiry” as (my emphasis) “requests that come from journalists, media organisations or publications that require an official response, information or comment from the Department of Regional NSW or Minister. Requests may be received by email, phone or in person”201. They state (my emphasis): Only authorised staff members may act as the Department of Regional NSW’s media spokespeople…Staff must not provide comment or information to journalists or media organisations on behalf of the Department of Regional NSW or about Department of Regional NSW’s matters unless authorised to do so. This includes speaking to journalists or media organisations on the record, on background or off the record.202 [224] Under the heading “Making public comment” the Guidelines say (my emphasis)203: Department of Regional NSW staff are entitled to make public comment as a private individual, however, staff are also accountable under the Department of Regional NSW’s Code of Ethics and Conduct. In the first instance, please refer to Department of Regional NSW’s Professional Standards within the Department of regional NSW Code of Ethics and Conduct, which details employee responsibilities in relation to public comment on behalf of the Department of Regional NSW. Public comment includes speaking engagements, comments on social media …, views expressed in letters to the editor, opinion pieces in newspapers or other publications, radio talk-back or TV interviews where the staff member is speaking on behalf of the Department of Regional NSW or can be identified as a the (sic) Department of Regional NSW staff member. … Staff must NOT: — provide internal documents, emails, presentations, information, data or any intellectual property to the media without authorisation from the Department of Regional NSW’s media team — make statements on behalf of the Department of Regional NSW without prior approval — imply or indicate that their private views are those of the Department of Regional NSW when making public comment on a particular issue or participating in political or industrial activities. This includes using Department of Regional NSW templates or letterheads to communicate personal views to media. [225] The Code deals with Managing conflicts of interests,204 providing (emphasis added): A conflict of interests occurs when an individual’s private interests make it difficult to perform official duties impartially in the public interest. Conflicts are common and can arise, for example, from close personal relationships at work, family relationships, social friendships or animosities, and work done outside the Department, including volunteering or any political activities. When we have access to information or are in a position to make decisions, give approvals or authorise expenditure that may benefit or detrimentally affect someone what we have a relationship with, there are possible conflicts of interests. This can include for example, decisions involving recruitment, procurement, community grants or regulatory decisions. [226] The Code describes “actual”, “reasonably perceived” and “potential” conflicts, and continues: If we fail to properly manage conflicts we leave ourselves open to claims of corruption or maladministration. This can affect Page 45 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 the reputation of the Department and individuals. Conflicts must be declared so they can be managed in a careful and transparent way. [227] Conflicts are handled in “a range of ways”, from “removing yourself from the affected process to simply ensuring transparency by declaring the relationship”. The action to take is left to the employee, guided by the Code to “think about things such as the closeness of the relationship and the significance of the benefit or detriment”.205 It lists a series of steps that must be taken if an employee believes they may have a conflict. [228] Central to the Respondent’s contentions on s 210(1)(h) is the contention that the Applicant’s comments were “critical of Government policy on operational matters” (RSUB [89]), or acted to “undermine its policies” (RSUB [91]). At no stage did the Respondent identify with precision what Government policy or policies on operational matters were relied upon in this connection, or (assuming it be the Fisheries Compliance Enforcement Policy) how anything said by the Applicant was “critical” of that/those policies, or operated to undermine them. As I have noted earlier in these reasons, there was no evidence of the Government’s “policy” position on the reforms sought in resolution of the PSA FCU Campaign. I am not prepared to infer from the mere absence of legislative amendment that the government held a policy against any of the legislative reforms being sought by the PSA. The evidence before me indicates the Department supported many of them (at least as explained in the Deputy Secretary Sloan’s letter), and some had even progressed to the point of regulatory drafting at the time of the PSA FCU Campaign. [229] It is no doubt correct that in carrying out his public functions and exercising public powers as an SCO in the FCU, the Applicant was “required … to perform his role in compliance and enforcement impartially and in accordance with the Fisheries Compliance Enforcement Policy” (RSUB at [86]). A copy of that policy was in evidence206 . But there is no evidence the Applicant’s media commentary in connection with the PSA FCU Campaign was inconsistent with the impartial and apolitical application of the Fisheries Compliance Enforcement Policy. The Respondent did not draw my attention to any part of that policy to suggest that the Applicant’s commentary conflicted with anything in the policy, or did, or even could have created an actual, perceived, or even potential conflict of interest. The Fisheries Compliance Enforcement Policy says:207 The department is committed to the safety of its employees and clients during all interactions (eg boarding of vessels, exercising of powers of search, seizure and arrest)… [it lists a number of ways it does this and continues] …Officers will use their training and skills to ensure that they do not risk their own safety or the safety of others when performing compliance functions. The Applicant’s media statements about his personal experiences at work were not inconsistent with that part of the policy. [230] The Applicant’s media commentary was in explanation of bans being imposed by the PSA, bans imposed in an attempt to encourage legislative reform to improve the health and safety of the FCU members when at work. To the extent the Applicant described his work or the work of the FCU more generally, it was largely directed to how, at least to date, officers have been left to use their training and skills to ensure that they do not risk their own safety or the safety of others when performing compliance functions, and how the PSA’s requests would assist. That is not inconsistent with the Fisheries Compliance Enforcement Policy. [231] At no stage is the Applicant critical of any policy position regarding enforcement of the laws administered by the FCU. In fact, his comments are both in terms and substance directed to improving the tools available to the FCU to pursue the enforcement activity contemplated by the policy. I do not see anything in that commentary that said, or that would suggest he (or any other FCU member), would use his/their enforcement powers in anything other than an honest and impartial manner consistent with that policy and the Government Sector Core Values. I do not accept his commentary was “critical of Government policy on operational matters”, or as “tending to undermine and damage the integrity and good reputation of the NSW public service”, or as damaging “his perceived ability to perform his functions in a professional and apolitical manner”, or suggesting he or his colleagues would not “faithfully serve the government of the day” (cf RSUB [89]). [232] Whether an employee’s conduct infringes the values in s 7 of the GSE Act is “a question of fact and degree”: Banerji at [26]. There is nothing in the Applicant’s comments in the media that is so “harsh or extreme in their criticism of Government or Opposition or their respective policies, or of individual members of Parliament whatever their political persuasion” that they could reasonably be seen as “conduct … bound to raise questions about the employee’s capacity to work professionally, efficiently, and impartially” or in a manner “likely to disrupt the workplace”: cf Banerji at [24]. The Applicant’s comments were nothing like the sort of “intemperate, even vituperative…” comments “variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament”,208 in the 9000 or so tweets published by Ms Banerji in Comcare v Banerji (2019) 267 CLR 373. Page 46 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [233] I reject the submission that anything the Applicant did or said in participating in the media interviews in his own time, at the request of the PSA media unit, created a conflict between his interests and those of the Department, or gave rise to any perception that he (or his colleagues) may exercise powers as an SFO or FO in anything other than an impartial and apolitical way. [234] Otherwise, this part of the Respondent’s case relied heavily on the words in the Code extracted in paragraph [221] above dealing with authorised media spokespersons, and in particular the absence of any reference in that part of the Code to whose interests the employee may be speaking for in public or in the media. But the words in that passage of the Code are ambiguous. The reference to “Only authorised employees comment publicly on the activities of the department” are in the context of describing the effective communication of “the work the Department is doing and how it aligns with the government’s position”. That context itself suggests the Code is directed to statements on behalf of the Department. The Guidelines are much more clear. They impose a restraint on those who “may act as the Department of Regional NSW’s media spokespeople”, either “on behalf of the Department of Regional NSW or about Department of Regional NSW’s matters”. They expressly permit “Department of Regional NSW staff …to make public comment as a private individual…”, provided they do not (amongst other things) “make statements on behalf of the Department of Regional NSW without prior approval” or importantly “imply or indicate that their private views are those of the Department of Regional NSW when making public comment on a particular issue or participating in political or industrial activities” (my emphasis). [235] The Guidelines themselves implicitly permit public comment when participating in political or industrial activities as a private individual, so long as they do not explicitly or implicitly represent their views as those of the Department. That would be in direct conflict with the Code, if the Code was read as the Respondent submitted. I do not accept that submission. On its proper reading, I understand the relevant passage of the Code is directed to employees being, or purporting to be, a spokesperson for the Department (or acting in a manner that could suggest they were representing the views of the Department). [236] As for the media Procedures, Guidelines and relevant part of the Code, the Applicant was not approached by a journalist (as contemplated by the Procedures and Code). Media outlets approached the PSA, and the PSA’s media unit facilitated meeting the Applicant. He was not, as the Procedures describe, asked for “information about a project or policy”, or to represent the position of or act as spokesperson for the Department. He was asked to “talk to the media as a union delegate about the industrial action and the associated concerns of the membership”.209 He did not purport to be speaking on behalf of the Department, and I accept he expressly told the media he was not a departmental spokesperson but was speaking as a PSA delegate210, as is in fact noted in many of the articles referred to earlier. He did not: (1) provide internal documents, emails, presentations etc (2) make statements on behalf of the Department of Regional NSW; or (3) imply or indicate his private views were those of the Department when making public comment as part of the PSA FCU Campaign, which, as I have earlier noted, was a public or political activity. [237] As noted earlier in these reasons, the depiction of a public servant in a uniform adjacent to comments may lead a reasonable reader to be confused as to whether the comments of the individual are comments of the agency, but that is not this case. The Applicant should not have worn his uniform in posing for the photographs taken by journalists, but in this case no reasonable reader could mistake the commentary attributed to the Applicant, limited as it was, in the media articles in evidence as reflecting the views of the Department, or as the Applicant having represented the views of the Department. [238] I do not accept the Applicant’s statements to the media interfered with the performance of his duties as an SFO in the FCU. I am otherwise satisfied the Applicant participating in media interviews at the request of and facilitated by the PSA, in his own time, in connection with the PSA FCU Campaign, was a public or political activity attracting the protection in s 210(1)(h) of the IR Act. Section 210(1)(g) — Participate or Propose to Participate in Proceedings [239] The specific allegation is the Applicant “Participated in proceedings relating to an industrial matter, being as an instructor and witness for the PSA in industrial dispute proceedings notified by the respondent in relation to work bans imposed by the PSA…”.211 [240] The “proceedings” referred to in the application were the Dispute — obviously proceedings “relating to an industrial matter.” [241] The two ways the Applicant claimed to have participated in or proposed to have participated in those proceedings, was by providing instructions and as a witness. Page 47 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [242] It is not in dispute that the Applicant did provide a witness statement in those proceedings (on or around 11 October 2024) and did give evidence and was cross-examined at the hearing on 28 October 2025, and thereby did participate in proceedings in relation to an industrial matter.212 [243] However, the Respondent submitted the fact the Applicant both proposed to be and was in fact a witness in the proceedings could not be relevant to the two alleged detriments: (1) The decision to deny the Applicant the opportunity to perform higher duties as the Program Leader, was communicated to the Applicant on 9 October 2024;213 and (2) The email containing the warning, was sent on 8 October 2024. There is no evidence Dr Moriarty had been told the Applicant proposed to be or would in fact be a witness in the Dispute proceedings prior to his affidavit having been served on 11 October 2024. The Respondent says it “did not know, and could not have known, that [the Applicant] proposed to participate in proceedings as a witness” at the time the relevant decisions of Dr Moriarty were taken.214 [244] Whether Dr Moriarty knew the Applicant was to be a witness in the proceedings seems to me to be a distraction. The question is whether the Applicant has demonstrated Dr Moriarty believed the Applicant would be a witness. It seems to me on the chronology of events described below, the suggestion Dr Moriarty did not believe the Applicant would likely be a witness in the PSA’s case in the Dispute, given he was the Acting FOVB Chairperson, FOVB delegate and the public spokesperson for the FOVB in the PSA FCU Campaign, would be naive. But the Applicant did not advance the case in that way. On the evidence, I accept Dr Moriarty did not know the Applicant would be a witness in the PSA case, and there is no evidence he knew the Applicant proposed to be a witness in that case. [245] As for participation or proposing to participate in proceedings by giving instructions, the Dispute was the subject of Conciliation before Commissioner McDonald on 25 September 2024. Dr Moriarty was also in attendance and it may be inferred he observed the Applicant was so involved. The Applicant’s evidence was he “attended the conciliation via audio visual link”215 that day. In the ASUBR at [15], the Applicant’s role on that day was described as providing instructions in the way a union delegate customarily does “ ie by informing union officials of the factual matters in dispute and guiding decisions about settlement, rather than as in a formal client/lawyer arrangement”. In oral submissions it was couched in this way:216 “he’s a delegate in a relatively niche occupation, informing the union as to what is happening and what the work group desires, needs and what the issues are.” [246] The Respondent says there is no evidence the Applicant “gave instructions” in the proceedings to support that submission.217 The Respondent otherwise argues the Applicant has not demonstrated the Applicant had either participated or proposed to participate in proceedings because:218 (1) The word “participate” means “take part in”. In the context of proceedings, to participate in proceedings is to take an active step in the litigation, such as commencing proceedings or giving evidence: Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470; 176 IR 346 at [89] –[90]; Australian Licenced Aircraft engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 at [340] –[341]; Elka Simjanovska and Roads and Traffic Authority of New South Wales [2006] NSWIRComm 267; 157 IR 40 at [15]. (2) Mere “passive attendance” is not participation. [247] The Applicant says: (1) He both “proposed to participate and actually participated” in proceedings in relation to an industrial matter;219 (2) The Applicant’s role in the Conciliation, as noted above, was said to have been to enable him to provide instructions in the way a union delegate customarily does in proceedings before a body such as the Commission “ie by informing union officials of the factual matters in dispute and guiding decisions about settlement, rather than as in a formal client/lawyer arrangement”.220 (3) The authorities relied upon by the Respondent do not go as high as requiring a party to have a role as a party principle or even as a witness, before they can be found to have been a participant in proceedings. (4) There is no basis for the respondent’s submission that the Applicant’s role was limited to “passive attendance”. Page 48 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [248] I accept that by his involvement in the Conciliation proceedings before Commissioner McDonald on 25 September 2025, the Applicant did either or both “participate, or propose to participate” in proceedings in relation to an industrial matter: (1) The Commission’s AVL facilities are not generally available to the public. For the Applicant to have attended the proceedings via AVL, there must have been a specific request by one of the parties to the proceedings made to the Commission to facilitate that arrangement. I infer that was done by the solicitors representing the PSA in the Dispute proceedings before Commission McDonald. There must have been some purpose for that arrangement to have been made. (2) Whilst the Respondent is correct the Applicant did not himself give evidence of the reason for him having been on AVL during the Conciliation, I am not bound by the rules of evidence and in an appropriate case can accept statements from the bar table (or made in submissions) as fact. In this case, the solicitor appearing for the Applicant and instructing Counsel in these proceedings, Mr Trainor, is a solicitor in the direct employ of the PSA. Moreover, Mr Trainor was the solicitor for the PSA in the Dispute proceedings before Commissioner McDonald (and I note Mr Saunders, counsel for the Applicant, was also counsel for the PSA in those proceedings). I accept that the reason the PSA had made arrangements for the Applicant to have attended the Conciliation proceedings via AVL was, as was said in the ASUBR at [15], so he could provide instructions in the way a union delegate customarily does: by informing union officials of the factual matters in dispute and guiding decisions about settlement. (3) In any event, given the Applicant was not only a local delegate for the PSA’s FOVB membership, but also a member of the FOVB executive and its Acting Secretary and Chairperson at the time, and given the fact the work bans imposed by the PSA that lay at the heart of the proceedings in the Commission were imposed by the PSA following a vote of the FOVB membership (no doubt organised by or at least at the request of the FOVB executive), I would infer the Applicant’s attendance in the dispute proceedings was facilitated so he could be a source of instructions about the substance of and potentially settlement of the dispute, in any event and without reference to ASUBR [15]. I note in that connection the PSA Delegates Handbook, in referring to proceedings before the Commission in the context of dispute notifications says (pg 73): Once the matter is listed, the parties are called before the Commission for a conciliation conference. Sometimes matters discussed and agreements reached in conciliation must be treated as confidential and not discussed outside of the hearing. Industrial officers handle the appearances before the Commission. … It is a good idea for delegates to attend the hearings so that they can assist the industrial officer and report back to members. Delegates can sometimes actively participate in a conciliation conference. Members, if necessary, can then determine a future course of action… [249] The protection in s 210(1)(g) operates in favour of those who both participate, and those who propose to participate, in proceedings relating to an industrial matter. None of the authorities referred to by the Respondent support a narrow construction of the word “participate” in this context, so as to require a person to have a specific role in proceedings before the protection in s 210(1)(g) may arise. Jagot J (then of the Federal Court) in Dowling v Fairfax Media Publications (2008) 176 IR 346, in rejecting a submission that proceedings had to be extant at the time any proposal to participate was said to have been made, said (at [89]–[90], emphasis added): The submission does not sit well with the natural and ordinary meaning of the words proposes to participate in … a proceeding under an industrial law. The word participate means to take part in. A person can participate in a proceeding in different ways (as the provisions recognise by drawing a distinction between participating in and giving evidence in a Page 49 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 proceeding, s 793(1)(k) and (l)). People can participate in proceedings by (at least) commencing proceedings, defending proceedings, or giving evidence in proceedings. If participation includes commencement of proceedings (as I think it does) then a proposal to participate in proceedings includes a proposal to commence proceedings. On this basis, it was not necessary for the provision to refer to a proceeding or proposed proceeding as the respondent submitted. The element of futurity captured by the proposal to participate applies to all potential forms of participation, including by way of commencement. This construction of s 793(1)(k) also accords with the purpose of the provision to prohibit an employer from taking proscribed conduct against an employee (as set out in s 792(1)) because an employee wishes to avail themselves of the right to be involved in legal process… [250] Jagot J gave the ordinary expansive meaning to the word “participate” in Dowling (dealing with a federal counterpart of s 210(1)(g)), recognising that it would “at least” contemplate commencing proceedings, defending proceedings, or giving evidence in proceedings, but otherwise acknowledging a person could participate in proceedings in “different ways”. Barker J in ALAEA v International Aviation Services Assistance (2011) 193 FCR 526 went no further than accepting that providing a witness statement amounted to participation in proceedings. The decision of the Full Bench of this Commission in Simanjovska v Roads and Traffic Authority of New South Wales (2006) 157 IR 40 says nothing of the word “participate” but gives an expansive meaning to the word “proceedings” (so as to potentially capture the invocation of an Award’s dispute resolution as participation in proceedings). [251] The ordinary and grammatical meaning of the word “participate” in this context is “to take or have a part or share, as with others; share: to participate in profits”,221 or “To take part; to have a part or share with a person, in (formerly also of) a thing; to share”.222 A union official or member in attendance at proceedings connected with an industrial dispute for the purpose of providing instructions and to enable communication with members is, in my view, one obvious means by which they may take part in or have a part in such proceedings — it is one means by which a union member or official may exercise their right to be involved in the “legal process” (to paraphrase Jagot J in Dowling). It is, to adopt the language from the judgment of Barker J in ALAEA v International Aviation Services Assistance (at [341]), to take part “in a very practical sense.” [252] I am comfortably satisfied that a person (and in particular a delegate) who attends a compulsory conference or conciliation process in proceedings before the Commission for the purpose of: (1) providing information to advocates or those directly instructing advocates about the subject matter and background of a dispute; or (2) to enable advocates or those directly instructing advocates to canvass potential settlement proposals in resolution of the dispute proceedings; or (3) directly observing what occurred so they could facilitate communication to members of a union at a workplace affected by the proceedings about the proceedings, and facilitate decisions by those members as to how to proceed; are a participant in those proceedings, whether or not they are in fact called upon to provide that information or to canvass those settlement proposals. Attending and observing proceedings before the Commission for any or all of these purposes, whether or not the person is actually called upon, is not “mere passive attendance”. In light of my findings I need not consider whether mere passive attendance would be sufficient to invoke the protection in s 210(1)(g) of the IR Act. Section 210(1)(j) — Complaint about a risk to health and safety [253] The Application broadly alleged the Applicant “made complaints about workplace matters that he considers to not be safe and/or pose a risk to health”.223 The Application did not particularise any action of the Applicant that was said to be a “complaint” at all, let alone one made prior to 9 October 2024 that was said to have been the cause of the detrimental action. The only conduct of the Applicant referred on the Application otherwise was his participation in the proceedings (referred to above) and the media statements. The ASUB asserted it was “apparent that…by his actions [the Applicant] made a ‘complaint’ in the relevant sense about a safety issue in his workplace”.224 Other than having participated in the Dispute proceedings before Commissioner McDonald initiated by the Respondent, the only “actions” of the Applicant referred to in those submissions is the Applicant’s participation in the campaign in connection with the work bans by “giving media comment in his capacity as a union delegate between 22 September 2024 and 2 October 2024”.225 The Applicant said that a ‘complaint’ in this context, Page 50 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 need not be a formal complaint or precise grievance, but it was sufficient if the person raised grievances or expressed dissatisfaction about a workplace matter that the person considers is not safe or a risk to health.226 [254] There was no factual dispute about the Applicant having made media commentary, or as to its content and subject matter. [255] The Respondent submitted the Commission could not find the Applicant had made a complaint attracting the protection in s 210(1)(j) for a number of reasons, but in summary: (1) However broad the concept of ‘complaint’, a complaint to the media (whatever its subject matter) is not a complaint to a person or body capable of resolving it: CFMEU v Quirk [2023] FCAFC 163; 300 FCR 171 at [45] –[47], and [344]; and (2) The use of the words “workplace matter” in s 210(1)(j) is deliberate and has a connotation more narrow than “industrial matter” as defined in s 6 of the IR Act. It should be understood as “confined to matters which are related to, and capable of resolution, in the workplace”. The Applicant’s complaints in the media were about matters requiring legislative reform, and were not something within the Department’s control. They were not, as such, complaints about a ‘workplace matter’.227 [256] I do not accept the second submission. A complaint about the absence of relevant safety equipment, or the absence of adequate authority to enable a job to be done safely, or that an employee does not have the same authority or powers as an employee doing ostensibly the same job in another jurisdiction, is readily capable of characterisation as a workplace matter or being related to a workplace. I can see no reason why the phrase ‘workplace matter’ should be constrained to matters that are “capable or resolution, in the workplace” if by that limitation the Respondent’s suggests it must be something within the employer’s direct and immediate control. The Full Bench in Twentieth Superpace Nominees at [33] said the concept of workplace matter “should be read broadly”, and “As such, ‘workplace matter’ should be read to include any matter arising in connection with a workplace”. [257] The ratio of the Full Federal Court in CFMEU v Quirk is not entirely on point. The foundational proposition accepted by Perram J at first instance in Quirk v CFMEU (at [289]–[296]), was that there was no relevant “complaint” made by two former union employees when they purportedly engaged in “whistleblowing to the media”, because a complaint made to the media was not founded in a set of legal norms, and therefore not one they were ‘able to’ make. The Full Court (for differing reasons) found no error in that conclusion (albeit the appeal was otherwise allowed in part). That was important because the allegation against the employer was grounded in a contravention of a workplace right said to be found in s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth). That is not a requirement in s 210(1)(j) of the IR Act. [258] As Katzmann J observed in the Full Court at [343], Perram J at first instance had not decided that to be a complaint the employee was able to make, the complaint had to be made to a person or body who could do something about it, or indeed to anyone in particular. It was in that context her Honour had said (at [344]–[345], emphasis added): As I have already mentioned, his Honour had referred earlier to a submission made by Mr Seck that it was sufficient for something to be a complaint if it “conveys a grievance”, citing Shea at [579]–[581], but did not accept that Shea said this was sufficient. If it did, his Honour added, that reasoning would be inconsistent with the Full Court’s decision in PIA. That is undeniably correct. It would also be inconsistent with Alam where, at [59], the Full Court held that, “[i]n the context of s 341(1)(c), the term ‘complaint’ connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved”. The complaints Mr Quirk and Mr Miller made on national television and in the SMH did not seek consideration of their complaints by, or redress or relief from, the media. They sought a platform on which to publicise their grievances. As the primary judge put it at [38] of his reasons: There is in my opinion no doubt that Mr Quirk and Mr Miller had agreed to speak with 7.30 in order to make public their grievances about the way in which the CFMMEU was being conducted. I did not understand the contrary to be suggested by either party. It follows that, if the point raised by ground 5b of the cross-appeal is the point put in the written submissions, it must be rejected. [259] The genesis of the Full Court proceedings in Alam v National Australia Bank (2021) 288 FCR 301, were a series of internal communications made by an employee of the National Australia Bank alleged to be a complaint or inquiry in relation to the employee’s employment for the purpose of establishing the exercise of a workplace right Page 51 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 under s 341(1)(c)(ii) of the FW Act. There was no dispute that the employer was an appropriate recipient of such a complaint. The issue was whether any of the communications relied upon could in fact be considered either a complaint or inquiry for the purpose of that section. In considering that question, the Full Court said this (at [59]– [60]), emphasis added: In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]–[581] per Dodds-Streeton J (cited with approval in Cummins South Pacific at [13]). Her Honour continued, at [626]–[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form. The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347 at [36] –[37]; and Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as inquiries for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries. [260] The majority of the Full Court (Bromberg J with whom Mortimer J agreed) in Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421, to which the Full Court in Alam had referred, had said (at [13]–[14])228, emphasis added: The natural meaning of the term “complaint” in the context in which it is used in s 341(1)(c) connotes an expression of discontent which seeks consideration, redress or relief from a matter in relation to which the complainant is aggrieved. A complaint is more than a mere request for assistance and must state a particular grievance or finding of fault: Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 314 ALR 346 (Shea) at [579]–[581] (Dodds-Streeton J) and the authorities there cited. Whether an employee has made a complaint is a matter of substance, not form, and is to be determined in light of all the relevant circumstances, it being only necessary that the relevant communication, whatever its form, is “reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”: Shea at [626]–[627] (Dodds-Streeton J). As Dodds-Streeton J observed in Shea at [619], the relevant object of s 340 (in combination with s 341(1)(c)) “is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment”. The protection from retribution is not a protection provided for any and all complaints. What is protected is the right of an employee to complain about the employee’s employment and the matters that relate to it. That seems to be based on the rationale that an employee should be entitled to advocate in support of her or his interests in the employment without fear of retribution for having raised those interests with her or his employer or another person or body to whom the employee has turned for assistance. [261] Again, the issue in Cummins229 was whether the ability of an employee to make a complaint in relation to their employment had to be sourced in, or be about, a right or entitlement held by the employee in order to fall within the scope of s 341(1)(c)(ii) of the FW Act. It had nothing to do with the issue in these proceedings. [262] In its ordinary meaning, “complaint” means “an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding…a cause of grief, discontent, lamentation, etc”230, “Outcry against or because of injury; representation of wrong suffered; utterance of grievance”231 or in connection with “a”, “An utterance or statement of grievance or injustice suffered”.232 [263] The Full Bench in Twentieth Superpace Nominees v Transport Workers Union of New South Wales233 heard an appeal from a decision of Commissioner Murphy in which he found the Appellant had unlawfully victimised a truck driver for raising safety concerns connected with the over-filling of bins of sugar cane, by writing letters, participating in a petition, and in meetings with management as a co-delegate for the workers. One of the issues Page 52 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 that arose was whether the truck driver’s various expressions of concern was sufficiently particular as to amount to a complaint. The Full Bench found: (1) the phrase “makes a complaint”, “should be construed broadly and does not require a formal accusation. A complaint can be inferred from conduct, or a course of conduct, involving raising concerns, objections or disagreements and should be seen to encompass the myriad of ways in which an employee would ordinarily raise issues or make complaints in a workplace”234 (2) that the phrase “about a workplace matter” gave meaning to the word “complaint”. Specifically, the context within which “complaint” is included in the section connotes something which is informal in nature akin to the statement of grievances or expression of dispute in a workplace context and thereby having the following attributes: (a) the complaint may be in the nature of a grievance or dispute rather than a formal complaint; (b) the complaint may be made in any one or more of the ways in which employees would ordinarily make complaints in the workplace, and (c) there is no requirement as to form, such that the complaint could be made orally or in writing, ultimately concluding (at [29]): …having regard to the ordinary meaning of the word “complaint”, the context in which the phrase “makes a complaint” is used in s 210(1) and the protective nature of the section, we are satisfied that the phrase “makes a complaint” should be construed broadly and that it is not necessary to point a specific formal accusation as constituting the making of the complaint. Expressing dissatisfaction about a workplace matter may well amount to the making of a complaint. This may arise from an instance or the statement of a grievance or, when viewed in context, a course of conduct involving the expression of dissatisfaction or the raising of concerns or objections. [264] The broad rationale underpinning s 210(1)(j) (and for that matter s 210(1)((i), (ia), (ib), (ic), or (k)), albeit directed to complaints of a particular kind (namely complaints about a workplace matter that the person considers is not safe …”) appears to be accurately captured by the judgment of Bromberg J for the majority in Cummins (at [14]): “…an employee should be entitled to advocate in support of her or his interests in the employment without fear of retribution for having raised those interests with her or his employer or another person or body to whom the employee has turned for assistance.” [265] It appears likely, given its immediate neighbours in s 210(1), the absence of any recipient for the complaint contemplated by Section 210(1)(j) was deliberate. The subsection does not confine the complaints it protects to particular or identified recipients. That is to say, it would appear the legislature deliberately chose not to limit the protection for complaints about a workplace matter the person considered was not safe, to complaints made only to particular bodies or entities (similar to the reference to “any person” in subsections (i), (ia) and (ic), but unlike subsection (ib) and (k) where a particular entity is identified). [266] That said I accept, however generously one may approach the idea that a compliant ought express discontent or a grievance, when read in context the term ‘complaint’ connotes not only an expression of discontent but one that additionally “seeks consideration, redress or relief from the matter [here, the “workplace matter that the person considers is not safe or a risk to health”] about which the complainant is aggrieved” (to paraphrase Katzmann J in Quirk), or is made to someone “to whom the employee has turned for assistance” (to paraphrase Bromberg J in Cummins). That arises not only from the ordinary meaning of the word “complaint” viewed in context, including the other placita of s 210(1) and the general subject matter of s 210(1) directed to the creation of behavioural norms in industrial relations, but additionally because the complaint is but one part of the protection conferred by the subsection — the other being where the employee “exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011”. [267] Part 5 of the Work Health and Safety Act 2011(the WH&S Act) deals with, amongst other things: (1) Consultation required by a person conducting a business or undertaking (a PCBU) when making certain decisions or proposing changes that may affect the health or safety of workers,235 including direct consultation with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. In the course of that consultation, workers are Page 53 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 entitled to receive information, to express their views and raise work health or safety issues in relation to the matter, and to contribute to the decision-making process relating to the matter.236 (2) Requests by a person (of course including an employee) that a business or undertaking facilitate the election of a health and safety representative,237 which triggers a process of negotiation and agreement about relevant work groups, failing which an employee (any person) party to the negotiations can request the regulator appoint an inspector to decide work groups. 238 Employees can nominate for election, are entitled to vote in an election for the representative for their work group, and if elected have specific powers and obligations about matters relating to their work group,239 including the power to direct that unsafe work cease in certain circumstances,240 and issue enforceable provisional improvement notices in certain circumstances;241 (3) The right of employees to cease unsafe work in certain circumstances.242 [268] I consider the Applicant’s communication with the media akin to the ‘whistleblowing to the media’ considered in the Quirk litigation. The Applicant’s statements to the media (such as they are in evidence before me, in the articles subsequently published), did raise matters capable of characterisation as complaints about workplace matters the Applicant considered were not safe and presented a risk to the health and safety of himself and other members of the FCU. However, the Applicant’s media communication was not to seek consideration of his complaints by, or to seek redress or relief from, the media. I am not satisfied the comments made by the Applicant in the media were “a complaint about a workplace matter that the person considers is not safe or a risk to health” within the meaning of s 210(1)(j) of the IR Act. This ground of the application can be put to one side. REBUTTABLE PRESUMPTION [269] To successfully prosecute an application alleging a contravention of s 210 of the IR Act, the onus is on the Applicant to ultimately satisfy the Commission that detrimental action was taken because of a protected characteristic within s 210(1).243 The rebuttable presumption in s 210(2) aids the Applicant in that exercise. The Full Bench in Lee v Ausgrid (No 6) (2013) 237 IR 63; [2013] NSWIRComm 62 at [87], observed long ago that: Section 210(2) is the legislature’s recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability arising under the provisions of s 210(1) and 213, the employer must negative the statutory presumption that its conduct has been for the reasons condemned by s 210(1). This is not a technical requirement. As was submitted by the appellant, it serves the important public interest of ensuring that justice is done and the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue. [270] The terms of s 210(2) are clear: once an employee has demonstrated detriment as a result of an action by an employer and alleges the cause of that detriment falls within the classes of victimisation in s 210(1), then (assuming the employee establishes the elements of the subsection/s of s 210(1) relied upon), it is presumed that employee was victimised. Once the presumption in s 210(2) is engaged, the onus is on the employer to show that the “alleged matter” was not “a substantial and operative cause of the detrimental action”.244 To borrow from the judgment of Mason J in Bowling extracted earlier in these reasons, the consequence is that the Applicant is not bound to adduce evidence that the Respondent was actuated by (one of the s 210) reasons. The Applicant is entitled to succeed if the evidence is consistent with the hypothesis that the Respondent was so actuated and that hypothesis was not displaced by the Respondent. [271] The Respondent outlined a number of propositions with respect to the application of the rebuttable presumption that were said to be “settled” principle (RSUB [101], albeit reference is made to s 361 of the FW Act I understand the Respondent to say they are equally applicable here). No particular issue was taken with that summary. I would not necessarily accept the propositions as framed, but (save for one matter, dealt with at [274] below) to the extent I hold any different view (or would describe the proposition differently), they do not affect the determination of the current proceedings and so can be ignored. [272] The Applicant has established detriment. He alleges the Respondent, via Dr Moriarty, imposed that detriment because he (ASUB [15]): (1) participated in a public or political activity per s 210(h) ie made media comment as part of a campaign directed to (amongst other things) changing laws to enhance the workplace safety of FOVB members when at work; Page 54 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 (2) participated in proceedings relating to an industrial matter, being the dispute notified by the Secretary, within the meaning of s 201(1)(j); (3) was an elected representative of employees and acted in that capacity per s 210(1)(a); and/or (4) made a complaint about a WHS matter per s 210(1)(j). [273] The Applicant has established the elements of three of those grounds. The rebuttable presumption is engaged. The question is whether the Respondent satisfies the Commission that the alleged protected characteristics were not a substantial and operative cause of the detrimental action. The indefinite article “a” is significant. It is by that mechanism the IR Act deals with the potential for an employer to have multiple reasons for imposing a detriment. Where there may be multiple reasons for imposing a detriment, an employer seeking to discharge the rebuttable presumption will need to demonstrate none of the protected characteristics that are relied upon to invoke it were a substantive and operative reason for the detriment. [274] The Respondent submitted (RSUB [102]): The evidence will demonstrate that the Department took the alleged detrimental actions against Mr Wright because he breached the Code by making the media comments. Even if the media comments are capable of being characterised as an alleged protected ground or activity, the authorities make clear that it will be sufficient to demonstrate that the Department characterised the conduct differently. The Department submits that the Commission will accept the Department’s evidence for the following reasons. [275] I do not accept the underlined portion of that submission. The phrase “will be sufficient” overstates the position. [276] I accept that where the reason for the adverse action is capable of being characterised as being connected to the exercise of protected right or activity (or status), it does not necessarily follow that the action was taken by reason of protected characteristic: RSUB [101(h)]245. Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 make clear a protected characteristic does not need to be entirely disassociated with the reason a detriment is imposed to displace the rebuttable presumption. That is so because the focus of the rebuttable presumption is on the subjective reason of the person (or where applicable, people) who made the decision to impose the detriment. [277] By way of illustration, if the conduct of the employee can on the one hand be characterised as the exercise of a workplace right, but on another also misconduct, and the subjective reason of the decision maker to impose a detriment was said to be exclusively based on a view the behaviour was misconduct (and that evidence is accepted by the Court), then the rebuttable presumption may be discharged. The reverse is also true. As Commissioner McDonald said in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Cmr of Police [2024] NSWIRComm 1001 at [35]246 (emphasis added): …[C]ounsel for the PSA was correct when she submitted that the fact of being a delegate cannot provide some impervious armour against any misconduct, but equally it’s not sufficient for an employer to discharge the onus by hiding behind the cloak of a disciplinary investigation. Expressed another way, the fact that all the alleged misconduct was engaged in as part of Mr Saraceno’s duties as a delegate does not, in and of itself, protect him against the consequences of any substantiated misconduct. However, equally the Respondent cannot escape a finding of victimisation if in fact it pursued Mr Saraceno for misconduct (even if such allegations are substantiated) because he was engaging in duties as a delegate, including by instructing the PSA in relation to the Award Proceeding and proposing to be a witness in the Award Proceeding. [278] In the absence of evidence from the decision maker of an innocent explanation (an explanation that is accepted as credible), if the conduct of an employee identified as the reason for the imposition of a detriment is capable of characterisation in more than one way, one establishing a contravention and the other not, whilst not impossible (it is necessarily fact dependent), it will be difficult for the Respondent to discharge its burden of demonstrating the prohibited reason was not a substantial and operative reason for the imposition of the detriment. The position would be akin to that identified by Mason J in Bowling at 242 (extracted earlier in these reasons): the Commission would be left with a reason for the dismissal which did not exclude the possibility of an additional reason infected by the protected characteristic. [279] There are three grounds under s 210(1) invoked by the Applicant that enliven the rebuttable presumption in s 210(2). The Respondent must satisfy the Commission that none of them were a substantial and operative cause for the presumption created by s 210(2) to be discharged. Page 55 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [280] The Respondent submitted that in the absence of evidence of Dr Moriarty, the decision maker, it is still necessary for the Commission to have regard to all the circumstances to see whether or not the evidence is capable of discharging the rebuttable presumption created by s 210(2). The absence of evidence from the decision maker does not mean the Respondent must fail in discharging its onus247. The onus of proof required of the Respondent in that connection is the ordinary civil standard. I agree with all three of those propositions. [281] In that connection the Respondent submitted: (1) In the absence of evidence from Dr Moriarty, the Commission is left “to look at the objective evidence that exists”248 to determine what were Dr Moriarty’s reason/s for imposing the detrimental action. (2) The contemporaneous documents, said to be “often the surest guide”, record and corroborate Dr Moriarty’s reasons for his decisions. (3) The proximity in time between the Applicant’s media comments and the taking of the detrimental action are consistent with the contemporaneously stated reason of Dr Moriarty for taking the actions he did. [282] The Respondent also submitted the Commission should not draw a Jones v Dunkel inference against the Respondent because evidence was not led from Dr Moriarty. The absence of his evidence is explained. I accept that submission, but that does not go so far as to avoid the drawing of an adverse inference of that kind from the absence of others who may be thought to have given evidence that may have reflected on Dr Moriarty’s reasons for taking action against the Applicant. In particular, Mr Connor Wilson, Senior HR Business Partner, who spoke to Dr Moriarty between 9.52am and 1.45pm on 8 October 2024, and apparently drafted the 8 October 2024 email from Dr Moriarty to the Applicant (the Second Detriment relied upon by the Applicant) after having had a discussion with him. The potential significance of Mr Wilson’s evidence will become apparent when seen in the context of what transpired between 30 September 2024 and 8 October 2024. To be clear, I appreciate the inferences that may be drawn from the absence of Mr Wilson are limited. At best, his absence may lead to an inference that anything Mr Wilson may have said would not have assisted the Respondent. I proceed on that basis. [283] As for records in evidence, the Respondent pointed to: (1) The terms of the 8 October 2024 email from Dr Moriarty itself, and the proximity in time between the media interview on 8 October 2024 and the email from Dr Moriarty that day; (2) The email sent to all staff by the Deputy Secretary on the afternoon of 30 September 2024, said to be a reminder of employee obligations under the Code; (3) Contemporaneous Teams messages and text messages sent by Dr Moriarty to Ms Burdett-Symons (which I understand to be Ex 8 [17] LBS8, [19] LBS9, [23] LBS11, and [25] LBS13), and a Teams Message from Dr Moriarty to Mr Wilson on 9 October 2024 (Ex 5 [48(d)] AR24).These were said to be contemporaneous records that tended “to support the thought processes of Dr Moriarty being focussed on the media comments that were made”;249 (4) A file note said to be from Dr Moriarty’s diary, attached to the affidavit of Ms Ange Royal (Ex 5 [48(c)), dated 22 October 2024. The Respondent accepted absent explanation from Dr Moriarty, all this note can be given is the weight which is apparent from the face of the document,250 but says it did appear to record Dr Moriarty’s thought process and why he decided to withdraw the acting up position.251 The Applicant said it should be given little weight because it was not contemporaneous, having been made several weeks after the decisions on 8 and 9 October, and was ‘reactive to proceedings’. The only proceedings on foot at that time related to the Dispute before Commissioner McDonald. I understand this to be a reference to the Applicant having raised concern (in substance if not form) about victimisation after having been told by Ms Burdett-Symons, on 9 October, that Dr Moriarty denied him the acting up opportunity, and requested reasons for the decision in writing (which was refused); (5) The email exchange on 22 October 2024 between Dr Moriarty and others regarding the meeting with the Applicant Dr Moriarty proposed in the 8 October 2024 email. [284] The Respondent accepted that the burden it bore, if the rebuttable presumption was engaged, “is trying to demonstrate that other reasons weren’t in [Dr Moriarty’s] mind”252 (I understand that to mean there were no other substantive and operative reasons for Dr Moriarty’s decisions), recognising that “the industrial proceedings” were on foot at the time. In the result, the Respondent submitted that despite the absence of Dr Moriarty, the Commission should be satisfied that the one and only substantive and operative reason for Dr Moriarty’s decision for taking the detrimental actions was because he believed the Applicant breached the Code by making the media comments.253 Page 56 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 Ambiguity in the evidence is only a problem for that submission if it bares upon an adverse inference that may be drawn as to the reason for Dr Moriarty’s decision — if ambiguity in the evidence does not bare upon an adverse inference of that kind, the ambiguity is a neutral consideration.254 [285] For the reasons explained below, I do not accept the Respondent has discharged the rebuttable presumption created by s 210(2) of the IR Act. I am not satisfied a belief the Applicant had engaged in misconduct by making what Dr Moriarty described as unauthorised media statements was the only substantive and operative reason for his decision to impose the detriments identified. It is convenient to express my reasons as part of a chronological examination of the evidence. [286] As would be apparent from what is set out above, over the weekend of 28 and 29 September 2024, and on Monday 30 September 2024, following Conciliation proceedings before Commissioner McDonald that week, a number of media articles were published that related to the PSA FCU Campaign, the imposition of the work bans by the PSA in support of the Campaign, and the Dispute. [287] At 6:30am on Monday, 30 September 2024, Dr Moriarty sent a meeting invitation via Teams, to Ms Burdett- Symons and four other persons. The title of the meeting invitation was “SLT Check In re articles” and was to occur at 9am that morning. I understand SLT means Senior Leadership Team. The timing of that email is significant, as is the timing of the media publications referred to above. [288] The Senior Leadership Team of the FCU (the SLT, made up of the “program leaders” and the Director, Dr Moriarty) would apparently hold regular meetings.255 The meeting on 30 September 2025 was not one of those meetings. It was described as a “special meeting” of the SLT convened specifically to discuss the “recent media coverage of comments made by the PSA and Mr Wright”.256 [289] In her written evidence, Ms Burdett-Symons originally described that meeting as the usual SLT weekly meeting on 8 October 2024. She corrected that in her supplementary statement to 30 September after having identified additional records in response to a summons to produce. In her first statement she described having become aware at that meeting “that Dr Moriarty was shocked that Mr Wright had made comments to the media and that he had appeared in the media in his Fisheries uniform, without approval from the Department”. 257 In her supplementary statement she described that first account of the meeting as “accurate”258 (I assume she meant, save for the date and the fact it was not a usual weekly meeting). [290] Her oral evidence was to a different effect. [291] Ms Burdett-Symons took no notes of the meeting. Notes of the meeting were, however, prepared by Ms Chrisina Rae (described by Ms Burdett-Symons as a “very highly” skilled and “exceptional employee” including as a note-taker in meetings).259 Those notes were produced under summons and were tendered by the Applicant260. [292] Ms Burdett-Symons was the only person who gave evidence in the Respondent’s case as to what transpired at that meeting. In cross-examination she described the minutes taken by Ms Rae as “a fair recollection” of the meeting261. Those minutes demonstrate Ms Burdett-Symons’ initial account of the meeting at paragraph [20] of her first statement (Ex 7) was not “accurate”, or perhaps to be more fair to her, far from a complete account of what transpired at that meeting. [293] Under cross-examination Ms Burdett-Symons described Dr Moriarty’s demeanour in this meeting as “extremely agitated, extremely wound up, very angry”262 (not ‘shocked’ as in the statement). That appears consistent with the tenor of the language attributed to Dr Moriarty at the meeting in Ms Rae’s minutes. I appreciate they are but notes, and are not and do not purport to be an exact account of all that Dr Moriarty said at the meeting. However, all the comments recorded on the minutes263 were apparently made by Dr Moriarty,264 including: (1) Referring to “Joe”, plainly a reference to the Applicant, Dr Moriarty used the words “Pinup Boy”, “Hero” and “Marta”. I understand the last word to be “martyr”. A reference in this context to “someone who is put to death or endures great suffering on behalf of any belief, principle, or cause”265, appears to fit the context of the meeting more than a woman’s name. I do not understand that to be in issue. The Respondent invited me to accept these were “merely adjectives to described how he perceived Mr Wright may have presented himself” and “has to be a reference to what he’s been doing out in the media”.266 (2) A reference to having met with a law firm well experienced in employment law, notably the firm on the record in these proceedings, “to discuss the Breach of Code of Conduct by Joe — Nil approval to do Media — attack on Dept and Minister” (emphasis added). The Respondent emphasised the “Nil approval to do Media”, as being consistent with that being Dr Moriarty’s concern about the Applicant’s conduct.267 A little later in the notes this is recorded (emphasis added): LB to consider who would be best as the SFO Far North as DFC does know how long Mr Wright will be around. Jackie maybe but she was in the IRC [last] week and don’t know she would be much better.. Maybe someone left field that would like the opportunity Page 57 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 There is no suggestion in the evidence that “the SFO Far North Coast”, the Applicant, would be going anywhere prior to this notation. It appears to me the word “does” is a typographical error and what was likely said was “doesn’t” (the sentence simply makes no sense in terms or context otherwise). I understand “Jackie” to be a reference to another PSA delegate268 who was in attendance in the proceedings before Commissioner McDonald some 5 days prior. LB was a reference to Ms Burdett- Symons. In cross-examination, Ms Burdett Symons gave this evidence: Q What did you understand Dr Moriarty to mean by saying he didn’t know how long Mr Wright would be around? A. I took that to mean that there would be some action taken against Mr Wright for his comments in the media. I didn’t really understand what action that would be. The Respondent submitted the reference to the Applicant is too vague to draw any reliable inferences, and in any event, to the extent it is capable of being read as Dr Moriarty expressing the view some action may be taken against the Applicant, in context it would be because of his doing media commentary without approval. (3) “FOVB Not running the FCU — DFC is and its got him pissed off” and “FOVB members beating their chest and pumped up”. I understand “DFC” to be a reference to the Director, Fisheries Compliance, being Dr Moriarty — it was Dr Moriarty, the decision maker here, described as being “pissed off” with the FOVB. The Respondent submitted that this was “clearly” a reference to the media comments that are being made, “they’re [the FOVB] the ones who are going out there and seeking to dictate the agenda because they’re out there beating their chest…that can be the only reference there”.269 (4) “DFC hasn’t started to track emails yet but well within his ability to do so. Emails in error Ange Royal has with staff using work emails and work time to discuss the Ban and when the best time would be to release it, the most impact for Media. Anthony Jesus was one of them.” (emphasis added) (5) Finally, a number of other observations were recorded that were apparently also directed to the proceedings before Commissioner McDonald in the week prior (emphasis added): Those who turned up to the IRC last week didn’t get DFC approval to do so — they clearly don’t think they need approval, Ange going back to PSA to say so are we docking pay are they submitting leave etc etc The reply is due Wed/Thurs this week at 4pm, our job [is] to debunk their safety theory and have the Commissioner see there is NO safety issue and to give a Direction to Return to Work. If choose not to return to work dock pay. Backed us into a corner, need them back to work that is what the aim is that is the end game. Lie their ass off just to win the argument and get them back to work. [294] The last sentence is not particularly clear. The “and” between the first and last parts of the sentence appears to be an error, reflecting the fact these are but minutes of something said by Dr Moriarty in a meeting rather than a transcript of what was said. I infer references to “Lie their ass off just to win the argument” was not Dr Moriarty having said in front of the entire SLT, that someone from the Respondent would lie their ass off just to win the argument and get workers back to work. I understand that reference to “Lie their ass off just to win the argument” to be referable to what the PSA would say (or given this is post conciliation, perhaps had said) regarding the “safety Page 58 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 issue” and “safety theory” that Dr Moriarty was saying the Respondent would seek to “debunk” in the proceedings. I don’t understand that to be in issue. [295] On the Respondent’s submission, whilst that reference to “Lie their ass off” appears to be a reference to the IRC proceedings, and collectively, the perception, rightly or wrongly, that “the union or the FOVB were trying to win an argument”, it does not relate to a protected attribute of the Applicant. As the submission went, “it might be an indication of a general attitude that Dr Moriarty had a feisty and robust disagreement with the PSA’s position in the Industrial proceedings. That doesn’t convert it into an inference that he acted for an unlawful reason”.270 [296] The Respondent accepted that there were a number of inferences that could be drawn from the file note.271 The Respondent accepted the evidence demonstrated that Dr Moriarty was annoyed, and that both the FOVB and the PSA were “vexing him”, but that does not necessarily mean actions were taken against the Applicant for one of the prescribed reasons.272 When looking at the contemporaneous documentation in whole “one has to construe it and properly understand what the inferences are on the balance … the fact that there might be a possible inference available doesn’t necessarily mean its the most reasonable inference to be drawn”.273 [297] The Respondent accepted that the minutes demonstrate (together with Ms Burdett-Symons evidence) that Dr Moriarty was “annoyed”, but “he was annoyed by Mr Wright’s actions.” The question, it said, is whether those actions were for a prescribed reason. That requires inferences to be drawn from the documents and context, noting “the fact that there might be a possible inference available doesn’t necessarily mean it’s the most reasonable inference to be drawn.”274 [298] In substance, the Respondent invited me to conclude the proper inference that should be rationally drawn from Ex 1, was corroborative of what the evidence otherwise showed about Dr Moriarty’s comments and actions towards the Applicant, and to the extent they bare upon Dr Moriarty’s reason for taking action against the Applicant, that it was because he had engaged in unauthorised media comments in breach of the Code. [299] I do not accept that submission. In my view, it is not the preferable inference to be drawn on the balance of probabilities from the whole of the evidence. [300] The Respondent’s submission on Ex 1 closely parses the terms of a file note (not a transcript), seeking to characterise particular parts in favour of its case, whilst largely ignoring the document as a whole and viewed in context (or at least some of the surrounding context). [301] Dr Moriarty is the Director of Fisheries Compliance. Work bans were imposed by the PSA, at the urging of (and following an overwhelmingly vote by) its members within the FCU — ie the FOVB — seeking reform. That is no doubt what Dr Moriarty was referring to when he said words to the effect of “FOVB Not running the FCU — DFC is and its got him pissed off” and “FOVB members beating their chest and pumped up”. The Applicant at that time was a member of the FOVB, the FOVB delegate for the area, and was also not only a member of the FOVB executive but its Acting chairperson and Secretary. He was the person nominated by the FOVB to be the FOVB spokesperson for the PSA FCU Campaign and it was in that capacity he came to speak to the media. That was stated in terms in many of the media articles that were published, to which Dr Moriarty no doubt had regard by 8 and 9 October 2024. [302] Statements to the effect the “FOVB [and] members beating their chest and pumped up”, and to the “FOVB Not running the FCU — DFC is and its got him pissed off”, by Dr Moriarty, a man described as appearing “extremely agitated, extremely wound up, very angry”, cannot rationally or reasonably in context be understood as solely directed to the Applicant’s media statements. In terms, entirely consistent with the surrounding context, it is the FOVB and its members, no doubt including the Applicant, that had “pissed off” Dr Moriarty for, as he perceived it, trying to run the FCU and making his job as DFC more difficult. [303] It is in that context this “extremely agitated, extremely wound up, very angry”, man raised matters such as: (1) action against those who “turned up to the IRC last week” (noting it would appear he was of the view those behind the IRC proceedings had or would “Lie their ass off just to win the argument”); (2) that the Applicant may not be around for long; (3) if he were not, his replacement perhaps ought not be “Jackie” (another PSA delegate) apparently because “she was in the IRC [last] week and don’t know she would be much better” (whether that was because she was a participant in those proceedings, she was also a Delegate, or may also engage in public activity in support of the PSA FCU Campaign doesn’t matter, because in context any of those inferences would be reasonably available); and (4) to starting to track emails because some of the FOVB had used work emails and work time to “discuss the Ban and when would be the best time to release it, the most impact for Media.” Page 59 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [304] Seen in that context, it is not only rational and reasonable to draw an inference that what angered Dr Moriarty, and what was prompting him to consider taking action (against more than just the Applicant), went well beyond the Applicant having made unapproved comments to the media. It seems far more likely Dr Moriarty’s anger was also directed to the PSA FCU Campaign more generally, which had both industrial and media aspects to it, and to those participating in it, obviously including the Applicant. [305] That is reinforced by the apparently pejorative references to the Applicant as a “Pinup Boy” and a “martyr” (perhaps to a lesser extent ‘hero’) — language reflecting a focus on the Applicant because of his participation in the advancement of a cause or belief, rather the simple act of a public servant making media comment without authorisation. [306] I have no doubt Dr Moriarty referred to the Applicant in the way he did in that meeting for reasons that included the Applicant having made statements to the media without approval (whether the Applicant did or didn’t require approval may be put to one side for assessing Dr Moriarty’s reasons for decision — I accept Dr Moriarty likely thought he did need approval — it is noted in Ex 1 and in multiple other documents), but there is no reason in terms or logic to ignore the Applicant’s role in the FOVB, including the fact he was a delegate and involved in that capacity in the PSA FCU Campaign more generally, including his participation in the IRC proceedings some 5 days before, when describing the Applicant as a “pin-up boy”, “hero” and “matyr”, or in suggesting action be taken against him. [307] Some of the latter correspondence emanating from Dr Moriarty personally after 8 October 2024, discussed below, further reinforces that view and further that this view was still operating on Dr Moriarty’s mind when he came to impose the detriments on 8 and 9 October 2024 (and at least up until 22 October 2024). [308] That Dr Moriarty was angered not merely by the Applicant having spoken to the media without approval, but by the PSA campaign more generally is again further reinforced when close regard is paid to the content of the published media to which Dr Moriarty was most likely referring, when attending that meeting at 9am on 30 September 2024. [309] The first indication of what articles Dr Moriarty may have had in mind when going into the meeting on 30 September 2024, comes from an out of hours text message sent from Dr Moriarty to Ms Burdett-Symons at 7:27am on Sunday, 29 September 2024. It contained a link to the ABC news article extracted at length earlier in these reasons (the first article referred to in the evidence). [310] The Teams invitation to the 30 September 2024 SLT meeting described earlier was, according to the notation under the heading “Tracking” on LBS-8, sent by Dr Moriarty to 5 participants (the SLT) at 6:30am Monday 30 September 2024. The meeting itself was to occur between 9 and 9:30am. Ms Burdett-Symons confirmed it occurred at that time.275 [311] The evidence shows that Dr Moriarty received an email from a company known as “Isentia” entitled “Daily Fisheries Media Report”, at 9:52am Monday, 30 September 2024276 , containing links to the first tranche of media articles identified in the evidence. A daily media report “is a regular report prepared by the Department’s Communications team which sets out anything in the media that might impact or be relevant to the Department”.277 [312] At 9:59am that morning, 30 September 2024, apparently after the SLT meeting, Dr Moriarty forwarded that Isentia email and the attached Daily Fisheries Media Report to the Deputy Secretary Fisheries and Forestry for the Department, Sean Sloan, the Senior HR Business Partner, Connor Wilson, the Manager Industrial Relations, Ange Royal, and the Acting Director Media, Lyndall Hilder, together with a screen shot of a webpage showing an ABC interview that morning, saying: “See highlighted story from below — Joe has also undertaken a radio interview for ABC and it is doing the rounds this morning”.278 [313] The evidence shows a second tranche of media commentary was forwarded to Dr Moriarty by Lyndall Hilder at 9.55pm on 30 September 2024.279 [314] Dr Moriarty’s decision to trigger the ‘special meeting’ of the SLT (presumably made around the time the Teams invite was sent at 6.30am Monday morning), and indeed the meeting itself, on the evidence, occurred before the Daily Media Report was sent to Dr Moriarty at about 10am, and certainly many hours before the email Dr Moriarty received later from Ms Hilder. That meeting invitation was sent prior to many of the media articles contained in the Isentia Media Report (or otherwise described in the Respondent’s evidence) having even occurred. [315] The only media in the evidence that Dr Moriarty could have been referring to when referring to “articles” in his Teams invite sent at 6:30am on Monday 30 September 2024, are those referred to in paragraphs [43]–[60] above. As mentioned above, unlike the matters attributed to the Assistant General Secretary of the PSA, nothing attributed to the Applicant in any of that media can, on a reasonable reading of it, be described as an “attack on Dept and Minister”. It appears to me the far more rational and reasonable inference is the anger being displayed by Dr Moriarty at that time was about much more than just the Applicant’s media statements. It is, in my view, far more likely that Dr Moriarty was angered not only by the Applicant’s personal conduct, but by the actions of the PSA more generally, including the imposition of the bans and the PSA Media Release which, as noted already, received far more media attention than did the Applicant’s benign commentary. So much appears almost obvious when one Page 60 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 sees the words “FOVB not running the FCU — DFC is and its got him pissed off” and “FOVB and members beating their chest and pumped up” in context. [316] That view about what was generally aggravating Dr Moriarty, is also consistent with the fact no-one bothered to reach out to the Applicant personally and tell him to stop what he was doing — no-one even appears to have suggested to him that he stop making media comments until the 8 October 2024 email. [317] I recognise, as noted above, that on 30 September 2024 at 4.40pm the Deputy Secretary, Fisheries and Forestry, Mr Sean Sloan, sent a broadcast email to a mailbox for all fisheries and forestry staff, including all the staff in the FCU,280 but it relevantly said nothing more than: All staff are reminded to follow the Department’s Code of Conduct and Ethics, as well as relevant policies and guidelines. If you are unsure of these, please ask your Director or Executive Director. Any media inquiries on these matters should be referred to the Department’s media unit… [318] That is hardly a proper way to have drawn concerns about the Applicant’s conduct to his attention. To the extent any inference can be drawn from this email at all, it is far more consistent with attempts to deter PSA/FOVB members generally from participating in the PSA FCU Campaign. [319] It would appear there was a usual SLT meeting on 8 October 2024. The timing of that SLT is not known. The context and circumstances surrounding the creation of the document are not known, but a document said to be a diary entry of Dr Moriarty was produced under summons (Ex 6), in which it seems Dr Moriarty made notes under the heading “FCU SLT check in” on 8 October 2024. By reference to “work ban” it is noted “Submission this Thurs Aft”, “PSA have til thurs 4pm to respond”, and relevantly, “need to watch staff who may want to participate in work time — FOVBE”. The reference to the PSA response would have been to the PSA’s evidence and submissions in the Dispute. Subject to some administrative matters, appearing as a witness for the PSA entitles a PSA delegate to paid special leave: Award cl 54.1.6. Again, there are a number of inferences that may be drawn from this last passage, but one of them is Dr Moriarty was still highly concerned about the conduct of the FOVB executive, which includes the Applicant, and the potential they may wish to participate in the Dispute (including, one may infer, giving evidence). Again, no-one had told the Applicant to cease making statements to the media at this time. [320] As noted in describing the background to the Second Alleged Detriment, at 7:41am on 8 October 2024, the Applicant gave an interview to an ABC Central Coast journalist. That appears to have been drawn to Dr Moriarty’s that morning. At 9:52am Dr Moriarty sent an email to Mr Wilson, the Senior HR Business Partner saying “FYI — he’s still doing it!!!”. That led to a meeting between Dr Moriarty and Mr Wilson, and to Mr Wilson sending a draft email to Dr Moriarty at 1:45pm that day. On 2:24pm, Dr Moriarty, having amended the email slightly to include reference to a meeting between himself and the Applicant when the Applicant returned from leave, sent the email to the Applicant. That meeting between Dr Moriarty and the Applicant never occurred, for reasons described below. [321] One might reasonably infer that in the “discussion” between Dr Moriarty and Mr Wilson, the Senior HR Business Partner who drafted the email to the Applicant, Dr Moriarty would almost certainly have discussed what he wanted to have happen (perhaps including to the Applicant, given what occurred in the 30 September 2024 SLT meeting) and more importantly, why. He was, it would appear, the HR person to whom Dr Moriarty turned to for advice when he appreciated “He’s still doing it!!!”. [322] In the circumstances, albeit the inferences that may be available from his absence are a relatively minor consideration on the whole of the evidence, I infer that Mr Wilson’s evidence would not have helped the Respondent establish that the only substantial and operative reason for the detriments imposed on the Applicant were Dr Moriarty’s subjective view he had engaged in misconduct. [323] The Applicant gave evidence that on 9 October 2024 at about 10:20am, he received an email place-holder meeting invitation advising him that Dr Moriarty had organised a meeting for 15 October 2024 at 10:00AM. The subject of the meeting was ‘Discussion around conduct’. At this time, the Dispute proceedings before Commissioner McDonald was listed for hearing on 18 October 2024.281 [324] The Applicant says “just after 10:20am”, he missed a call from Ms Burdett-Symons. He returned that call. The initial call from Ms Burdett Symons appears to have its genesis in a conversation she had with Dr Moriarty that morning. I will refer to her evidence about that below. The Applicant, however, described a conversation he had with Ms Burdett-Symons when he returned her call282 (emphasis added): On 9 October 2024 just after 10:20AM, I missed a call from Ms Burdett-Symons. A short time later I returned her call and we had a conversation to the following effect: Page 61 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 Ms Burdett-Symons: Hi Joe. The DFC has directed that you will not be given the acting program leader opportunity. He said that it was due to your recent industrial action and your associated comments to the media. Mr Wright: Right okay. Can I please get this in writing? Ms Burdett-Symons: Yes okay, I will take this to the DFC and either he or I will respond in writing. I refer to the decision of Dr Moriarty to withdraw my temporary assignment, as communicated via Ms Burdett-Symons as the ‘PLNE Decision’. I felt that I needed to request for Dr Moriarty’s final decision in writing because I intended to seek PSA’s assistance as I was concerned (and I remain concerned) that Dr Moriarty was taking action against me because of my activities as a union delegate. [325] In her first statement (Ex 7), Ms Burdett-Symons referred to a conversation she had with Dr Moriarty that morning during which it would appear she disclosed to him the arrangement for the Applicant and Mr Audet to share the acting position of PLNE during her period of upcoming leave. Ms Burdett-Symons said, having described the arrangement (at [21]–[24], underlining added): Dr Moriarty said words to the effect of, “I do not think it is appropriate for Joe tobe acting in that role at this time”. I do not remember if Dr Moriarty explained why he said this. From the Fisheries Compliance Unit Senior Leadership team meeting of 8 October 2024 (set out in paragraph 19 above) and my conversation with Dr Moriarty of 9 October 2024 (set out in paragraph 21 above), I understood that the reason Dr Moriarty did not think it was appropriate for Mr Wright to be acting in the PLNE position was because Mr Wright had made comments to the media and appeared in the media in his Fisheries uniform. 23 Later that day, on 9 October 2024, I spoke with Mr Wright about the PLNE acting opportunity. I cannot remember exactly what I said, but to the best of my recollection we had an exchange in words to the following effect. I said: “Hi Joe. Andrew has said that it would not be appropriate for you to act in my role when I’m on leave, due to the industrial action and you being the spokesperson for the PSA.” Mr Wright said: “Ok, I’m not surprised. Can I get that in writing?” I said: “Good question, I’ll go and ask”. 24 When I said to Mr Wright that the reasons that he would not be given the opportunity to cover my role were “due to the industrial action and [him] being the spokesperson for the PSA”. I assumed that the reason that Dr Moriarty had said that it was not appropriate for Mr Wright to be acting in the PLNE role at this time was generally due to the Fisheries Officers work ban and that Mr Wright was appearing in the media. This assumption was based on the timing of the NSW Fisheries Officers industrial action and the decision by Dr Moriarty to not allow Mr Wright to act in the PLNE role. It was not based on any direct knowledge of Dr Moriarty’s reasons. [326] In her second statement (Ex 8), Ms Burdet — Symons gave additional evidence qualifying some of what she said in the above passage. [327] First, she states she found an additional Teams exchange between herself, Dr Moriarty, and Ms Rae. It is undated but it must have occurred after the 8 October 2024 email was sent. The exchange was as follows (underlining added): Moriarty: Morning both — the backfill arrangements for PLNE — did I approve these? Page 62 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 LBS: We didn’t get any applicants from the EOI. On approaching Ben and Joe neither wanted to do it for the 6 weeks but was willing to share. This was before the work ban. Moriarty: Given Joe has just received an email from me around his conduct he will not be suitable. Please engage Ben to do the full 6 weeks or if he refuses then they will both report to me for the gap (3 weeks). LBS: Ok I will inform him [328] Second, she states she identified text messages between herself and Dr Moriarty around 10:28am on 9 October 2025, in which Ms Burdett-Symons indicated she had just spoken to the Applicant and “he had asked for him being denied A/PL in writing…do you want me to send an email or from you?”. Dr Moriarty indicated “nothing in writing” as per the way the arrangement was set up, and “We have a meeting on Tues next week regarding his conduct — he can raise it then if he likes.” [329] Third, she qualified what she said in her first statement about having had a conversation with Dr Moriarty on 9 October 2024: At the time of making my First Witness Statement, I did not recall the 9 October Teams Exchange taking place, though I did recall the substance of what had been communicated between Dr Moriarty and me. Now that I have found the 9 October Teams Exchange, I cannot recall 100% either way whether or not I also had a conversation with Dr Moriarty about the same or similar subject matter on 9 October 2024. I therefore wish to clarify paragraph 21 of my First Witness Statement by saying that I may have had a conversation with Dr Moriarty to the effect set out in that paragraph which was consistent with the 9 October Teams Exchange but I am not certain that it occurred. I recall I took the screenshot of the 9 October Teams Exchange because there was a lot happening at the time and I thought that it could be controversial, in the sense that Dr Moriarty’s position that Mr Wright was not permitted to act in my role due to his conduct seemed unusual to me. I can see in the 9 October Teams Exchange that Dr Moriarty refers to Mr Wright not being suitable to act in my role due to his conduct, which Dr Moriarty says he sent Mr Wright an email about. I interpreted the reference to the email to mean the 8 October 2024 email that Dr Moriarty sent to Mr Wright, and to which I was copied, regarding Mr Wright’s “unapproved public comments” to the media. … I acknowledge that the 8 October 2024 email [from Dr Moriarty to the Applicant] refers only to Mr Wright’s activity in the media. However, in my mind and at the time I did not draw a distinction between Mr Wright’s media activities and his participation as a delegate in the industrial action. This was in part because in at least one of the articles in which Mr Wright made comments to the media there was also commentary about the work bans that were taking place at the time. … I had assumed that Dr Moriarty’s actions in relation to Mr Wright were because of his media activities which I had assumed from the context were not said on behalf of the Department and said on behalf of the PSA, but Dr Moriarty never said that to me that those were the reasons for his actions. That is the reason I made the statement to Mr Wright in paragraph 23 of my First Witness Statement that it would not be appropriate for Mr Wright to act as PLNE “due to the industrial action and you being the spokesperson for the PSA. [330] It perhaps goes without saying that Ms Burdett-Symons was not a reliable historian. In her second statement (Ex 8) she said, as I have noted above, that the meeting referred to in the underlined passage at [21] of her first statement was not the usual SLT meeting on 8 October 2024, but was in fact the special meeting of the SLT called by Dr Moriarty at 9am on 30 September 2024, at which she described Dr Moriarty appearing angry, and at which he made various references to “FOVB and members beating their chest and pumped up”, and “ FOVB Not running the FCU — DFC is and its got him pissed off”. It would appear highly likely that her observations of Dr Moriarty in that 30 September 2024 ‘special’ meeting of the SLT (albeit wrongly identified in her first statement as having occurred on 8 October 2022) was part of what led Ms Burdett-Symons to the “assumption”, perhaps more accurately an inference, that the reason Dr Moriarty took the unusual step of interfering with the arrangement she had made to have the Applicant act up in her absence was, as she had said to the Applicant, “due to the industrial action and you being the spokesperson for the PSA.“ Page 63 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 [331] Dr Moriarty sent a Teams message Mr Wilson at 10.36am on 9 October 2024, relating to his decision to deny the Applicant the opportunity to act in Ms Burdett-Symons position. He said, having described the background to the arrangement, amongst other things (emphasis added): I have indicated to Lee that I did not approve it [the acting up opportunity for the Applicant] and that Joe is not suitable due to the email I sent him yesterday about his conduct. Lee has informed him of this and now Joe is claiming he is being denied an A/PL opportunity and wants it in writing. I have indicated that as per the way the arrangement was set up (without my approval) and verbally is the way it will also be removed — I have indicated that I will not be sending anything to him in writing and that if he has an issue he can call me or we can discuss it at the meeting set up on Tues next week regarding his conduct. This is in line with Sean’s discussions with me also. [332] I understand “Sean” is likely a reference to Mr Sean Sloan, Deputy Secretary Fisheries and Forestry. He did not give evidence in these proceedings. There is no evidence as to what he had “discussed” with Dr Moriarty, or what Dr Moriarty meant by the phrase “in line” with that discussion. It is not at all clear whether the “This” Dr Moriarty is referring to in the concluding sentence is denying the Applicant the A/PL opportunity, or the denial of reasons for this decision, or both. [333] Dr Moriarty’s Teams message says the “email” he sent the Applicant yesterday was what made him “not suitable” for the acting up position. Precisely what he meant, and why he just didn’t refer to unauthorised media statements if that was what he meant, is not clear. The Teams message is, however, significant as it demonstrates that Dr Moriarty was aware the Applicant had apparently had a concern about the reason for the acting up opportunity being declined (hence the request for the reasons in writing), as at 9 October 2024 (well before his handwritten note of 22 October 2024 referred to below). [334] At that stage the Applicant was due to meet with Dr Moriarty on 15 October 2024, and the hearing of the Dispute was to occur on 18 October 2024. It would appear someone within the Respondent’s “IR unit” had formed the view that the meeting between Dr Moriarty and the Applicant should not proceed (perhaps Mr Wilson, but there is no evidence of that). Precisely why is not explained in the evidence, but to the extent there is any evidence of an explanation, it is either because of the “impending IRC matter”,283 or because the email of 8 October 2024 was “self-explanatory and no meeting is needed”.284 Whatever the reason, Dr Moriarty appears to have been concerned that the meeting take place. What he said about it in his internal email correspondence (Ex 1 pages 8 and 9) is, in my view, significant. [335] The first reference to the meeting not going ahead is made in an email from the Applicant to Dr Moriarty, amongst others, on 15 October 2024. In his email the Applicant refers to advice from the PSA that the “NSWDPIRD IR Unit would be taking steps for this meeting about my conduct to be cancelled/suspended” given the impending IRC proceedings. The electronic meeting invite apparently remained active, so the Applicant, in his email of 15 October, was enquiring as to whether the meeting was going ahead. It did not. [336] On 22 October 2024, obviously enough after the hearing of 18 October 2024 had been vacated due to Dr Moriarty having come down with COVID19, Dr Moriarty sent an email (at 8:37am) to three human resources/industrial relations staff of the Respondent: Ange Royal, Manager Industrial Relations, Jennifer Grainger, Senior Industrial Relations Specialist, and Mr Wilson, Senior HR Business Partner. It stated (emphasis added):285 I don’t believe that leaving this hanging and allowing the PSA to influence internal Departmental processes is wise. I am proposing to respond. Please let me know if any discussions have taken place ASAP. [337] Ms Grainger replied (to the group) at 1:08pm that day, describing the “letter” (I understand this to be referring to the email of 8 October 2024), as “self explanatory and no meeting is needed unless Joseph has some questions”, followed by a draft response that, amongst other things cancelled the meeting. [338] Dr Moriarty replied (to the group) at 1:20pm that day stating (emphasis added): There is a principle involved here Jen that flows to the issues at hand I believe. IE me being able to fully acquit my role as a Director and with out outside interference. A senior person in my team has exhibited behaviours outside of what the Department expects and not in a minor way! It is my role to call out the behaviour — which I have done in an email and which I believe verbally over Teams is also warranted — this also allows Joe to put any circumstances to me and we can discuss them. Page 64 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 I have moved the meeting to 10am Fri — Connor cannot make it. If you wish to attend I am fine with it. [339] The emails in Dr Moriarty’s own words emphasise his concern was to not allow the PSA to “influence Departmental processes” — it would appear that was how this latest communication about the triviality of a meeting “flows to the issues at hand”. A strong inference from this exchange is that it was the “principle” Dr Moriarty was concerned about. The intermingling of the issue of “principle” with consideration of the Applicant’s conduct, appears to reflect the mindset evident in the angered use of the words “pin-up boy” and “martyr” in the SLT meeting on 30 September 2024. The HR team were advising Dr Moriarty all that was required was the email. Dr Moriarty plainly wanted the Applicant to be paraded before him over Teams so he could verbally express his displeasure (and, being generous, potentially hear any explanation), I would infer in part to deal with the “principle” of PSA interference with the running of the FCU (as Dr Moriarty saw it). [340] Again, consistent with what I believe is the preferable inference on the balance of probabilities from the evidence as a whole, it is, in my view, far more likely that Dr Moriarty was angered not only by the Applicant’s personal conduct, but by the actions of the PSA more generally, and likely the Applicant’s part in it. The “principle” Dr Moriarty referred to in this email exchange on 22 October 2024 reflect his comments in the 30 September meeting: “FOVB not running the FCU — DFC is and its got him pissed off” and “FOVB and members beating their chest and pumped up”. It reflects the concern about FOVBE participation in the Dispute (in the context of the PSA’s evidence being due) in the SLT meeting file note of 8 October 2024. [341] Finally, there is a document said to be a handwritten notation in a diary of Dr Moriarty, dated 22 October 2024, 8:53am. Ms Royal, who introduced the diary note as a business record, says it reflects a conversation between Ms Burdett-Symons and Dr Moriarty on 9 October 2024. How or why she says that in light of it being dated 22 October 2024 is unknown. [342] In the notation it appears (the handwriting is somewhat difficult to decipher in parts) to refer to a conversation with Ms Burdett Symons around her having offered the Applicant and Mr Audet the acting up opportunity. It relevantly says (underlining added): I said you don’t arrange anything of this nature without my approval. I said I have concerns about Joe’s decision making given his recent media interviews done without my approval — I intimated to the relevant email I sent to Joe. I instructed Lee to fix this by going back to Joe and letting him know that I had not approved this acting and it won’t be approved given his recent behaviour of undertaking unsanctioned media interviews and that I have a question mark regarding his decision making. I also said that if Joe wants to discuss my decision not to have him act then he can do it at the upcoming meeting to discuss my email to him regarding his recent behaviour. [343] Ms Burdett-Symons was not sure if there was a conversation directly with Dr Moriarty about his reason for denying the Applicant the acting up opportunity, emphasising what she had said to the Applicant was based on her assumption of what those reasons may have been. This file note of Dr Moriarty dated 8:57am on 22 October 2024 suggests there was a conversation between Dr Moriarty and Ms Burdett-Symons as to why he denied the Applicant that opportunity, but does not corroborate the date suggested by Ms Burdett-Symons, and introduces an entirely new reason, apparently directed to the Applicant’s “decision making”. [344] There is absolutely nothing in the evidence indicating any concern as to the Applicant’s decision making at any time prior to the PSA FCU Campaign, or the Applicant’s participation in that campaign. That Ms Burdett- Symons was offering the Applicant the opportunity to act in her stead whilst she was absent reflects an absence of concern about his performance or decision making, including his capacity to exercise judgment in that higher role in her absence, from his immediate line manager. [345] I do not consider the terms or circumstances surrounding this note dated 22 October 2024 can be given any real weight. On any view of it, it is a post facto justification for why he denied the Applicant the acting-up opportunity — but how or why Dr Moriarty would come to make this particular note, dealing with this subject, on 22 October 2024 is entirely unexplained in the evidence. Reference to the Applicant’s ‘decision-making’, in context, is also capable of referring to a number of factual matters. [346] For example, there is no reason the reference to ‘decision-making’ should be limited solely to a reference to the decision to participate in media about the PSA FCU Campaign without first seeking approval, albeit that was no doubt one of the things Dr Moriarty would have had in mind (having regard to the whole of the evidence). It may well have been Dr Moriarty thought it inappropriate for a person who was a delegate and FOVB member to have been acting in a more senior mid-level manager type role, when the FOVB was taking industrial action. The fact Dr Moriarty had, in the special SLT meeting on 30 September 2024, indicted he thought ‘Jackie’, another PSA delegate who had attended the Conciliation before Commissioner McDonald on 25 September 2024, may not be an Page 65 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 appropriate person to fill even the Applicant’s team leader type role if he was no longer there, lends weight to the idea Dr Moriarty had an issue with a delegate connected with the PSA FCU Campaign being in a leadership position. [347] The Respondent, quite rightly, emphasised caution when drawing inferences. The parties did not address on the point, but an often-cited passage that encapsulates the proper approach to finding facts based on inference in a civil case can be seen in the judgment of the Full Court in Bradshaw v McEwans (1951) ALR 1 at 5 (emphasis added): Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678 [348] The onus on the Respondent, on the case it has advanced on the operation of s 210(2) of the IR Act, is to establish, by reasonable and definite inference (given the absence of Dr Moriarty), that the only substantial and operative reason for Dr Moriarty having imposed the detriments upon which the Applicant relies, was that Dr Moriarty was subjectively of the view the Applicant had breached the Code by making unapproved statements to the media (RSUB [102]). I have no difficulty accepting that concern was at least one of the substantial and operative reasons Dr Moriarty had for imposing the detriments. I go so far as accepting that it may have been the predominant factor in Dr Moriarty’s mind. But on the balance of probabilities, I do not accept the evidence permits a finding (a reasonable and definite inference) that it was the only substantive and operative factor influencing Dr Moriarty’s decision to issue the 8 October 2024 warning email or deny the Applicant the acting up opportunity on 9 October 2024. The evidence does not permit a finding (a reasonable and definite inference), that none of the protected characteristics relied upon by the Applicant were not also substantial and operative reasons. Each of those reasons, including the suggested breach of the Code by having made unapproved media comments, is consistent with the evidence. [349] I have discussed the inferences that I think are appropriately drawn from the minutes of the special meeting of the SLT on 30 September 2024 and the media containing comments from the Applicant up to that time at [291]– [312] above. I do not accept that the apparent anger displayed at the meeting at 9am on 30 September 2024, including the thinly veiled threat to take action against the Applicant, referred to by Dr Moriarty as a “pin up boy” “hero” and “martyr”, can be attributed solely to his media statements as part of the PSA FCU Campaign. [350] In the context of the work bans, the Conciliation of the Dispute on 25 September 2024, a dispute Dr Moriarty appears to have believed was based on lies (“Lie their ass off jut to win the argument”), and the media articles over 29 and 30 September, which involved far greater coverage of the more pointed comments of the Assistant General Secretary in the official PSA Media Statement (the “attack on Dept and Minister”) than the relatively benign comments of the Applicant, I am comfortably satisfied Dr Moriarty was angered by the PSA FCU Campaign generally, and those who participated in and/or supported it. So much appears obvious from the words attributed to Dr Moriarty at that meeting: “FOVB and members beating their chest and pumped up” and “FOVB not running the FCU — DFC is and its got him pissed off”. That Dr Moriarty was frustrated by the actions of the PSA and the FOVBE is still evident as at 22 October 2024, two weeks after the imposition of detriments on the Applicant, where he rails against “allowing the PSA to influence internal Departmental processes”, and him “being able to fully acquit [his] role as Director …without outside interference” — as he described it, the “principle involved here”. [351] That is also consistent with Dr Moriarty’s apparent concern about the participation of FOVBE members in the Dispute proceedings, evident in the minutes of the 30 September 2024 special SLT meeting, but also in the notes of the regular SLT meeting on 8 October 2024. [352] The evidence does not permit me to exclude the Applicant’s participation in the PSA FOVB Campaign (by making statements to the media in support of that campaign), a public or political activity as I have found, that clearly angered Dr Moriarty, was a substantial and operative reason for Dr Moriarty imposing the detriments. It is entirely possible (in my view, highly likely), that Dr Moriarty took the detrimental action in retribution for, and to prevent further, participation by the Applicant in the PSA FCU Campaign by making statements to the media, not only because he believed the Applicant was acting in breach of the Code by doing so, but because he was angered Page 66 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 and frustrated by it (hence the three exclamation marks in the email of 8 October 2024, “He’s still doing it!!!”, and him questioning the Applicant’s “decision making” despite there being no suggestion in the evidence there had ever been any reason to doubt his decision making in the course of his job). [353] The evidence also does not permit me to exclude the possibility that the fact the Applicant was an FOVB executive member, acting FOVB Chairperson and importantly FOVB delegate, of the body that unanimously voted to impose work bans, and the local face of and significant influence in the PSA FCU Campaign (the “hero”, “Pin-up Boy” and significantly “martyr”), a campaign that apparently angered and frustrated Dr Moriarty because it interfered with Departmental processes and his ability to fully acquit his role as Director, was a substantial and operative reason for Dr Moriarty imposing detriments on the Applicant, in retribution for being the FOVB delegate or to discourage him from continuing in that FOVB delegate role, or both. [354] The same can be said for the Applicant’s participation in the Dispute. The Applicant and Dr Moriarty both participated in the conciliation on 25 September 2024, and from that one may infer Dr Moriarty was aware of his participation. The evidence demonstrates Dr Moriarty had expressed concerns with FOVB members participation in the Dispute proceedings (not only the Applicant), in the special SLT meeting minutes from 30 September 2024 (Ex1) and the handwritten notes of the SLT meeting on 8 October 2024 (Ex 6) (which is recorded in connection with the date the PSA was to file its material in those proceedings). The evidence does not permit me to exclude the possibility the Applicant’s participation in the Dispute proceedings was a substantial and operative reason for Dr Moriarty imposing the detriments. [355] The situation is not greatly different to that reflected in Bowling. To paraphrase Mason J’s reasoning, I am left with a reason for the detriments (breach of the Code via unapproved media statements) which does not exclude the possibility that it was associated with the circumstance that the Applicant was a PSA delegate and elected representative of the FOVB membership, was engaged in a public or political activity (which I have found did not interfere with his duties), and/or had participated in the Dispute. If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor, but I have already said enough to indicate why the possibility cannot be so regarded. CONCLUSION [356] For the reasons outlined above, I am comfortably satisfied the Applicant has proved he suffered detriment at the hands of the Respondent (as claimed), and had three of the protected characteristics upon which he relied in alleging a contravention of s 210 of the IR Act. In those circumstances, s 210(2) of the IR Act provides “it is presumed that [the Applicant] …was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action”, unless that “presumption is rebutted”. The presumption will be rebutted “if the employer …satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action” (emphasis added). I accept one of the substantial and operative reasons Dr Moriarty imposed the detriments was because he was of the view the Applicant had breached the Code by making unapproved media statements, but I am not satisfied the evidence permits a finding that was the only substantial and operative reason for taking that action. The evidence otherwise leaves open the possibility (indeed, in my view, probability) that each or all of the protected characteristics relied upon by the Applicant were also a substantial and operative reason for Dr Moriarty having taken the detrimental actions. [357] I find the Respondent did, by the decisions and actions of Dr Moriarty, unlawfully victimise the Applicant as alleged. RELIEF [358] The Applicant seeks orders pursuant to s 213 enforcing the protections under s 210 by: (1) requiring the Department to formally withdraw the 8 October 2024 email (described as a caution or a warning), and confirm same in writing; (2) reimburse the Applicant for wages lost due to the denial of the acting-up opportunity; and (3) prohibiting the Department and Dr Moriarty from taking further action against the Applicant or any other PSA delegate for speaking to the media about industrial campaigns, except to the extent that any such participation impedes the employee’s ability to perform their duties. [359] The Respondent denied the Applicant was entitled to any remedy, but additionally: (1) To the extent the Applicant claims he suffered a loss arising out of the acting up opportunity, “he has not established that he would have accepted this opportunity. To the contrary, the evidence shows that Mr Wright was not interested in the opportunity”: RSUB [107]. Page 67 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 (2) The final Order sought is in the nature of a permanent injunction against Dr Moriarty and the whole of the Department. It ought not be made. [360] I am satisfied that it is appropriate to grant the first two orders for relief sought by the Applicant, but not the third. [361] The first and second Orders sought are obviously causally connected with the findings I have made, and directed to redressing the detriments identified. The Respondent’s contention the Applicant has not established he would have accepted the acting up opportunity is obviously mistaken on the facts. I understand the RSUB (dated 26 May 2025) containing that submission, may have been made prior to the location of emails between the Applicant and Ms Burdett-Symons (produced under summons and contained in her supplementary statement Ex 8), in which the Applicant clearly had in fact agreed he would accept the acting up opportunity. In any event, I reject the submission. I accept the Applicant had agreed to undertake the second tranche of acting up (the latter 3 weeks of Ms Burdett-Symons 6 week leave period) and has lost that opportunity because of Dr Moriarty’s decision to deny him it. The financial value of that acting up period was agreed as $892 (gross). I am satisfied it is appropriate to Order the Respondent pay the Applicant $892, reflecting the denial of that opportunity, plus interest. [362] As to the third Order, I agree it is in the nature of a permanent injunction. It may be open and appropriate to make an Order of that kind in an appropriate case, but I am not satisfied it is appropriate to do so here. The Respondent raised a number of matters against the making of those orders (RSUBR at [16]–[18]). For present purposes it is sufficient to note amongst those matters were: (1) The Applicant bares the onus of satisfying the Commission the relief sought is appropriate; (2) Whilst the Commission has a broad discretion in granting relief to enforce the protections in s 210286, orders enforcing the prohibitions in s 210 ought not (indeed, cannot) extend beyond that which is causally connected with and directed to enforcing the contravention of said protections found by the Commission. (3) The relief sought in this connection extends well beyond the circumstances of the Applicant (extending to all PSA delegates), well beyond the facts (the facts being directed to the PSA FCU Campaign, which continues and there is no suggestion of further action against the Applicant or any other delegate), and beyond the subjective decision making of Dr Moriarty (who is no longer the DFC). It is not properly causally linked to any protected characteristic in s 210(1) or the actions of the Respondent. It seeks a permanent injunction directed to the whole of the Department in circumstances where there is no basis in the evidence for a concern a similar situation may arise again. The proposed Order could potentially create unnecessary conflicts with the new Code of Conduct post 1 November 2024 (which provides greater guidance on appropriate engagement in public and political activity in a person’s private capacity). Additionally, there are new protections in s 209(3) and s 210 of the IR Act that could influence the potential for such decisions to be reached in the future. [363] The Applicant accepted that any relief granted to ‘enforce’ the Freedom from Victimisation prohibitions in s 210, can only be directed to the contraventions found.287 [364] The injunctive Orders sought by the Applicant go well beyond the specific findings I have made. The findings I have made, particularly in relation to the operation of s 210(1)(j), are directed to the present facts, including my finding that the Applicant’s media commentary did not interfere with the performance of his duties. In another case media comments may well, depending on what they are and the context. I recognise the third order sought is qualified its operation by the words “except to the extent that any such participation impedes the employee’s ability to perform their duties”, but such a qualification is inherently uncertain in its operation, such uncertainty itself counting against the imposition of a mandatory injunction. I am not satisfied an injunction of the kind ought (or on the facts in this case, any injunction) is a form of relief reasonably adapted and appropriate to the enforcement of s 210 of the IR Act in light of the findings I have made. ORDERS [365] I make the following Orders pursuant to s 213 of the IR Act: (1) The Respondent is to formally withdraw the 8 October 2024 email from Dr Moriarty to the Applicant, and confirm same in writing, within 21 days of this decision being published. (2) The Respondent is to pay to the Applicant an amount of $892, plus interest calculated in accordance with s 372 of the IR Act (in other words, interest ought be calculated as though these proceedings were a Page 68 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 recovery of money proceeding of the kind to which s 372 directly applies), within 21 days of this decision being published. Order The Commission finds the Respondent unlawfully victimised the Applicant. Orders are made to enforce the Freedom from Victimisation provisions of the Industrial Relations Act 1996. Counsel for the applicant: Mr L Saunders Counsel for the respondent: Mr M Seck Solicitors for the applicant: Mr B Trainor, PSA Solicitors for the respondent: Ms S Moten, Landers & Rogers 1 Ex 5 at [22], pg 214. 2 Ex 2 at [28]. 3 TS 10/6/2025 pg 49 at lines 8 to 16. 4 Ex 2 at [28]. 5 Ex 2 at [27]. 6 Ex 5 at [32]. 7 TS 10/6/2025 pg 49 line 18 to 20. 8 Ex 5 AR 12 pg 268. 9 Ex 2 at [40]; Ex 5 at [35]. 10 Ex 2 at [43];. 11 Industrial Relations Secretary (on behalf of the Dept of Primary Industries and Regional Development) v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (Work Bans by Fisheries Officers) [2024] NSWIRComm 1065 at [7]. 12 Industrial Relations Secretary (on behalf of the Dept of Primary Industries and Regional Development) v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (Work Bans by Fisheries Officers) [2024] NSWIRComm 1065. 13 Ex 2 at [47]. 14 Ibid at [20]. 15 Ibid at [20]. 16 Ibid at [19](e). 17 The decision refers to the Police Minister, but a permit to possess or use a prohibited weapon, such as a taser or OC spray, is granted by the Commissioner of Police: see Weapons Prohibition Act 1998. 18 TS 10/6/2025 pg 44 line 42 to pg 46 line 1; pg 48 line 40–pg 50 line 5; pg 54 line 8–pg 56 line 22;. 19 Ex 5 AR 12 pg 268. 20 TS 10/6/2025 pg 49 line 37 to pg 57 line 13. 21 TS 10/6/2025 pg 50 line 36 to 55. 22 TS 10/6/20205 pg 50 line 36 to 38. 23 TS 10/6/2025 pg 50 line 9 to 30. 24 TS 10/6/2025 pg 57 line 15 to 24. 25 Ex 2 at [29]. Page 69 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 26 Ex 2 at [30]. 27 Ex 2 at [31]. 28 Ex 2 at [32]–[33]. 29 Ex 2 at [34]–[36], [38]. 30 Ex 2 at [36]. 31 Ex 2 at [37]. 32 Ex 5 AR18 pg 318. 33 TS 10/6/2025 pg 61 line 37 to 46. 34 Ex 5 AR 15 pg 302–310, Ex 8 LBS12 pg 26–34. 35 Ex 5, AR18 pg 318. 36 Noting the publication time recorded on AR14 pg 275, copy at AR15 pg 297–300. 37 Ex 5 AR15 pg 31121–312. 38 Ex 5 AR 15 pg12 295. 39 Ex 5 pg 32812. 40 Ex 5 AR15 pg 286, 294, 296 and theoretically pg 282 on 30 S12eptember 2024 at 6.22am. 41 Ex 5 pg 295. 42 Ex 5 pg 29612. 43 Ex 5 pg 284, 326–327. 44 Ex 5 pg 313–314, and partially at pg 279. 45 Ex 5 pg 278. 46 Ex 5 pg 277. 47 Ex 5 pg 54. 48 Ex 5 pg 283, 325. 49 Ex 5 pg 335, although I note the full article is not included. 50 Ex 5 pg 336. 51 Ex 5 pg 286, 294, 334. 52 Ex 5 pg 280, 281, 286, 294, 282 & 333, although the two line comment in these transcripts do not attribute any quote to anyone and in fact refer to New South Wales Fisheries having made a comment on officers being threatened too often by poachers and organised criminals. 53 Ex 5 pg 321–324. 54 Ex 5 pg 331–332. 55 Ex 7 at [8] and LBS1. 56 TS 11/6/2025 pg 13 line 13–14. 57 TS 11/6/2025 pg 13 line 16–24. 58 Ex 7 at [15]–[16]. 59 TS 10/6/2025 pg 72 line 4–8. 60 TS 10/6/2025 pg 72 line 20–22. 61 TS 10/6/2025 pg 76 line 37–38. 62 Ex 7 at [18]. 63 Ex 8 at [15]; TS 11/6/2025 pg 16 line 24–26. 64 TS 10/6/2025 pg 77 line 32 to 49. 65 Ex 8 at [15]. Page 70 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 66 TS 11/6/2025 pg 13 line 30–31. 67 TS 11/6/2025 pg 13 line 33–36. 68 TS 11/6/2025 pg 16 line 28–30. 69 Ex 5 AR21 pg 119. 70 See s 2(b), Schedule 1 items [13]–[17], and [38] of the Workplace Protections Act. 71 Fisher v Hedderburn Ltd (1960) 105 CLR 188 at 194, now reflected in Interpretation Act 1987 s 30(1)(b)–(e). 72 Workplace Protections Act, Sch 1, item [38]. 73 Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Cmr of Police [2024] NSWIRComm 1001 at [62] –[64] per Commissioner McDonald and Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Cmr of Police [2024] NSWIRComm 1062, in which the Full Bench affirmed the Commissioner’s decision at first instance. See for example Paula Lee v Ausgrid (No 6) [2013] NSWIRComm 62 at [64] –[65]; Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [123] –[128]. 74 A copy of the Respondent’s Code of Conduct (Ex 3); A copy of the PSA Delegates Manual (Ex 4); A copy of the relevant Delegations Manual for the Respondent (Ex 9); A copy of the PSA Rules (Ex 10); FCU People Plan (Ex 11); a letter addressed to Dr Moriarty dated 23 July 2025 (Ex 12); and a copy of the role description for the position Dr Moriarty now occupies on a permanent basis, being the Director Aquatic Assessment Regulation and Engagement, (Ex 13). 75 The email dated 14 August 2025 from the Respondent’s solicitors containing that information will be marked Exhibit 14 in the proceedings. 76 TS 4/8/2025 pg 3 at line 812. 77 TS 4/8/2025 pg 3 line 17 to 43. 78 TS 4/8/2025 pg 4 line 4 to 15. 79 TS 4/8/2025 pg 14 line 33. 80 TS 4/8/2025 pg 13 lines 35–44. 81 Lee v Ausgrid (No 6) (2013) 237 IR 63; [2013] NS12WIRComm 62 at [87]. 82 RSUB Further Note at [2], referring to PSA v Cmr of Police [2025] NSWSC 624 at [68] –[70] , [75]. 83 See for example Kinninmont [2020] NSWIRComm 1064; Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Cmr of Police, New South Wales Police Force [2024] NSWIRComm 1062 at [48] –[52]. 84 ASUB at [18]; TS 4/8/2025 pg 4 line 30–50. 85 Janssen v SWSLHD [2018] NSWIRComm 1022 at [8] –[14] per Seymour C; Davis v Amalgamated Amalgamated Television Services Pty Ltd (1998) 81 IR 364 at 380 –381. 86 TS 4/8/2025 pg 15 line 5–9. 87 RSUB [24], referring to PSA v Teterycz [1997] NSWIRComm 159; Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 at 380 –381; Buchanan v Fire and Rescue NSW [2020] NSWIRComm 1019 at [39]. 88 TS 4/8/2025 pg 15 lines 11–16. 89 Like “unfavourable treatment” under discrimination laws: by way of illustration, see Kidman v Casino Canberra Ltd [2020] ACAT 1250 at [30] considering the concept of “unfavourable treatment” in the Disability Discrimination Act 1991 (ACT). 90 TS 4/8/2025 pg 6 line 50 to pg 7 line 22. 91 Ex 14 demonstrates a loss of over $850 for that period. 92 ASUB at [20]–[22]. 93 ASUBR at [6]–[7]; TS 4/8/2025 pg 6 line 26 to pg 7 line 22. 94 Reference was made to cl 20 of the GSE Regulation 2014 and the Delegations Manual (Ex9) pg 15 that confirms a Manager (such as Ms Burdett-Symons) can approve a temporary assignment allowance, and pg 16 which showed that a Manager did not have delegation to “Approve temporary assignment of a non-executive to another non-executive role (either at or above level) for up to 2 years”. Page 71 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 95 TS 4/8/2025 pg 22 line 46 to pg 23 line 14; RSUB [32], referring to Jackson v Heart Research Institute Ltd [2025] FCA 301 at [240] –[241]. 96 TS 10/6/2025 pg 77 line 4 to 21. 97 TS 4/8/2025 pg 6 line 26 to pg 7 line 22. 98 ASUBR at [3]–[5], referring to Kidman v Casino Canberra [2020] ACAT 50. 99 TS 4/8/2025 pg 5 line 31 to 47. 100 (2002) 120 FCR 170 at [156] –[158]. 101Kidman v Casino Canberra [2020] ACAT 50 at [31]. 102Finance Sector Union v ANZ Banking Group (2002) 120 FCR 170 at [138] –[139]. 103TS 4/8/2025 pg 15 lines 18 to 42. 104FCU v ANZ Banking Group (2002) 120 FCR 107 at [157]. 105TS 4/8/2025 pg 16 lines 11–13. 106See s 69(4). 107Cf Wilcox CJ in FSU v ANZ Banking Group at [157]. 108The term used in Dr Moriarty’s email sent at 1.20pm 22 October 2024, extracted at [121] above. 109See for example Alam v National Australia Bank (2021) 288 FCR 301 at [20] –[24]. 110Rule 30 of the PSA Rules: Ex 10 pg 19. 111See paragraph [35] above. 112ASUB [19(c)], ASUBR [8]. 113Referring to Re Dispute at Broken Hill Pty Ltd Steel Works, Newcastle [1968] AR 48 at 66. 114RSUB at [40]–[49]. 115Here, specifically Section 5 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. 116RSUB at [50]–[65]; RSN at [5]–[7]. 117Ex 10 pg 61. 118RSUB [62]. 119At [185]. 120At [186]. 121At [190]. 122Ex 4 pg 45. 123 [2020] ACAT 50 at [2], [34]–[37]. 124Cf Ex 10, Rule 143. 125Ex 5, AR18 CB pg 318. 126Ex 4 pg 18. 127CB Tab 1 pg 3 at [3(b)]. 128RSUB at [71]–[84]. 129RSUB [85]–[92]. 130TS 4/8/2025 pg 7 line 48–49. 131ASUB at [19(a)]. 132TS 4/8/2025 pg 7 line 48–49. 133ASUB at [23(a)]. 134TS 4/8/2025 pg 8 line 3–7. Page 72 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 135TS 4/8/2025 pg 40 line 43–46. 136TS 4/8/2025 pg 40 line 48–50; pg 41 line 3–5. 137Referring to CPS Management v Equal Opportunity Board [1991] 2 VR 107 at 114 –115; Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805 at 819; Cairns Regional Council v Carey [2012] QCATA 150 at [62]–[89]. 138V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355 at [33]; Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460 at [167] –[177]; Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 at [104]; KI v Retail Store [2023] TASCAT 10 at [24]. 139Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Age Co Ltd (2004) 133 IR 197 at [46]; Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291 at [130]. 140RSUB at [78]. 141Shand [2018] NSWIRComm 1055; (2018) 282 IR 200 at [23] –[42]. 142P.C Barclay v Lake George Mines Pty Ltd (1949) 95 NSWIG 20 at 33. 143RSUB at [77]. 144RSUB [79]–[80]. 145CSR Viridian Ltd v Claveria [2008] FCAFC 177; 171 FCR 554 at [54] –[59]. 146Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; 262 CLR 456 at [29][50] and the cases cited therein. 147RSUB at [83]. 148RSUB at [82]. 149RSUB at [86]. 150Banerji [2019] HCA 23; 267 CLR 373 at [70] –[77]. 151Banerji [2019] HCA 23; 267 CLR 373 at [34]; [100]–[104]. 152Banerji [2019] HCA 23; 267 CLR 373 at [36]. 153RSUB at [89]. 154RSUB at [91]. 155TS 4/8/2025 pg 44 line 10–15. 156Later s 481(1)(h) of the Industrial Relations Act 1991 (NSW); with respect, Commissioner Sloan was incorrect in his observation in Shand at [34], that there was no equivalent provision in the Industrial Arbitration Act 1940, albeit that comment was certainly true if one has regard to the form of that Act when first made. 157Barclay v Lake George Mines Pty Ltd (1949) 48 AR(NSW) 557 at 558; 95 NSWIG 32 at 33. 158See Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at 389 –390 at [23] –[26]. 159IR Act, s 3(a). 160IR Act, s 3(d). 161Twentieth Superpace Nominees Pty Ltd v TWU (2006) 156 IR 323 at [27] –[29]. 162See La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 at [57] per Gordon and Steward JJ See also Edelman J at [130]–[140]. Each of their Honour’s referring to New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (“Berrima Gaol”) (2016) 260 CLR 232 at 255 –256 [32]–[33], 270-271 [91]– [94], 288 [146], 297 [174] (quoting IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 , 39 (in turn quoting Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333) and R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433) and Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at 143 [5]. See also Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at 632 –633 [40]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at 270 – 271 [92]–[94]. 163Macquarie Dictionary Online. 164Oxford Dictionary Online. 165Ashton v New South Wales [2025] NSWIRComm 1028 at [22]. Page 73 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 166Akin to the notion of a ‘public authority’ in Renmark Hotel Inc v Cmr of Taxation (1949) 79 CLR 10; or public officer in R v Whitaker [1914] 3 KB 11283 at 1296 –1297 ; cf RSUB [79]–[81]. 167Such as in the factual circumstances reflected in McPaul v Williams (1990) 34 IR 299, Tripp v Australasian Society of Engineers (1953) 78 CAR 149 and Lane v Australian Workers’ Union (1938) 39 CAR 322. Those matters concerned rules that apparently stifled political activity by members within a union (and so were struck down as being oppressive). Section 210 would appear designed in part to protect employees of industrial organisations where their actions may be directed to the proper democratic control of the union (subject to the qualification it must nonetheless not interfere with the performance of duties). 168IR Act, subs 3(d). 169Twentieth Superpace Nominees Pty Ltd v Transport Workers’ Union at [25]–[28]. 170See s 6(k) of the Equal Opportunity Act 2010 (Vic); s 7(1)(n) of the Discrimination Act 1991 (ACT) regarding “political conviction” which is defined to mean “having [and not having] a political conviction, belief, opinion or affiliation” and “engaging in [or not engaging in] political activity”; Pt IV of the Equal Opportunity Act 1984 (WA) dealing with discrimination on the ground of “political conviction”; s 7(j) of the Anti-Discrimination Act 1991 (Qld); s 16(m) and (n) of the Anti-Discrimination Act 1988 (Tas); s 19(1)(n) Anti-Discrimination Act 1992 (NT). 171See sections 351 and 772(1)(f) of the FW Act. The FW Act also identifies a term of a proposed enterprise agreement that discriminates against an employee on the grounds of, amongst other things, their political opinion, a “discriminatory term” (see s 195(1)), and is thereby an unlawful term (see s 194(a), which would prima facie prevent the approval of the proposed agreement: see s 186(4) of the FW Act. 172See for example, Vincent J in Nestle at 813–814. 173For example, V v Minister for Immigration (1999) 92 FCR 355 at [33] per Hill J. 174Generally discussed at [19]–[25]. 175Sayed at [172]. 176Nevil Abolish Child Support v Telstra Corp Ltd [1997] VADT 44. 177Quirk v Construction, Forestry, Mining and Energy Union [2021] 398 ALR 39 at [38]. 178Pg 809. 179Pg 816. 180Pg 817. 181Pg 816. 182Cf CPS Management at 114. 183Ex 3. 184Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62 at [23] per Kiefel CJ, Keane, Gordon, Steward JJ; Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 at 28 [78] per Crennan, Kiefel and Bell JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 –382 [70] per McHugh, Gummow, Kirby and Hayne JJ. 185See s 8A(3) of the GSE Act. 186In s 7 of the GSE Act: see. 187A copy was contained at Tab 14 of the Respondent’s Bundle of Authorities filed 1 August 2025. 188Macquarie Online Dictionary. 189Oxford Dictionary Online. 190Macquarie Online Dictionary. 191Oxford Dictionary Online. 192Macquarie Dictionary Online. 193Oxford Dictionary Online. 194TS 4/8/2025 pg 9 line 25–30. 195Ex 3 pg 5. 196Ex 3 pg 6. Page 74 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 197Ex 3 pg 7. 198Ex 3 pg 5. 199Ex 5 AR1 CB pg 228–230. 200Ex 5 AR1 CB pg 235. 201Ex 5 AR1 CB pg 232. 202Ex 5 AR1 CB pg 233. 203Ex 5 AR1 CB pg 234. 204Ex 3 pg 12. 205Ex 3 pg 12. 206Ex 5, AR15. 207Ex 5 CB pg 266. 208at pg 375. 209Ex 1 at [30]. 210Ex 1 at [37]. 211Application paragraph [3](a), CB Tab 1 pg 3. 212RSUB at [66]. 213Ex 1 at [52]. 214RSUB at [69]. 215Ex 2 at [40], CB Tab 3 pg 31. 216TS 4/8/2025 pg 8 lines 21–24. 217RSN at [8]. 218RSN at [10]. 219ASUB at [23(b)]. 220ASUBR at [15]. 221Macquarie Dictionary Online. 222Oxford English Dictionary Online. 223CB Tab 1 pg 3 at [3(c)]. 224ASUB at CB Tab 2 pg 20 [23(c)]. 225ASUB at CB Tab 2 pg 15–16 at [3]. 226ASUB at CB Tab 2 pg 19 at [19(d)], referring to Twentieth Superpace Nominees v Transport Workers Union of NSW (ob Purdy) [2006] NSWIRComm 219 at [18] –[29], and Janssen v SWSLHD [2018] NSWIRComm 1022. 227RSUB at [95]–[97]. 228Applied to the facts later in the judgment at [69]–74]. 229Discussed at [36]–[68]. 230Macquarie Dictionary Online. 231Oxford English Dictionary Onlne. 232Oxford English Dictionary Online. 233 (2006) 156 IR 323 at. 234 156 IR 323 at [23]. 235WH&S Act s 49. 236WH&S Act s 48(1)b). Page 75 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 237WH&S Act s 50. 238WH&S Act s 54. 239WH&S Act Part 5, Div 3, Subdivision 5. 240WH&S Act s 85. 241WH&S Act Part 5, Division 7. 242WH&S Act s 84. 243RSUB [25], referring to Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43]; cited with approval in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [62] , [84]; Basan v Cmr of Police (No 3) [2023] NSWIRComm 1028 at [53]; Jaggi v Health Secretary (in respect of Western Sydney Local Health District) [2022] NSWIRComm 1032 at [184]. 244Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43]. 245referring to Barclay at [62]; BHP Coal at [89]–[93]; Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 at [32]; Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [303] and [307]; Western Union [2019] FCAFC 181; 272 FCR 547 at [146] –[153]. 246By reference to Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [304] –[307] and the judgment of Gageler J as the current Chief Justice then was) in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 at [91] –[93]. Commissioner McDonald’s decision was affirmed on appeal and again on judicial review: Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Cmr of Police [2024] NSWIRComm 1062 and PSA v Cmr of Police [2025] NSWSC 624. 247RSUB [101] (e) and (f). 248TS 4/8/2025 pg 45 line 49 to pg 46 line 4. 249TS 4/8/2025 pg 48 line 43–46. 250TS 4/8/2025 pg 47 line 6–8. 251TS 4/8/2025 pg 48 line 11–12. 252TS 4/8/2025 pg 48 line 47–48. 253RSUB [102]. 254TS 4/8/2025 pg 52 line 16–18. 255Ex 8 at [17]. 256Ex 8 at [17]. 257Ex 7 at [20]. 258Ex 8 at [18]. 259TS 11/6/2025 pg 17 line 4–16. 260The first page of the bundle marked Ex 1. 261TS 11/6/2025 pg 17 line 23–27. 262TS 11/6/2025 pg 17 line 47–48. 263Which are the first page of the bundle that was marked Ex 1. 264TS 11/6/2025 pg 17 line 33–34, pg 18 lines 5–10. 265Macquarie Online Dictionary. 266TS 4/8/2025 pg 49 line 36–41. 267TS 4/8/2025 pg 49 line 45 pg 50 line 1. 268TS 10/6/2025 pg 26 line 3–4. 269TS 4/8/2025 pg 50 line 5–12. 270TS 4/8/2025 pg 55 line 8–10. 271TS 4/8/2025 pg 49 line 20–21. Page 76 of 76 Wright v Industrial Relations Secretary o/b Dept of Primary Industries and Regional Development (No 2), [2025] NSWIRComm 1087 272TS 4/8/2025 pg 54 line 31–44. 273TS 4/8/2025 pg 54 line 17–21. 274TS 4/8/2025 pg 54 line 14–21. 275Ex 8 at [18]. 276Ex 5 AR14 pg 270. 277Ex 5 at [40]. 278Ex 5 AR14 pg 270. 279Ex 5 AR17 pg 315. 280Ex 5 at [43]. 281Ex 2 at [51]; see also Ex 5 at [48(c)]. 282Ex 2 at [52]–[54]. 283Ex 1 pg 9, email from the Applicant to Dr Moriarty and others on 15 October 2024. 284Ex 1 pg 8, email from Jennifer Granger to Dr Moriarty, 22 October 2024. 285Ex 1 pg 9. 286See Ters v Health Secretary (in respect of the South Western Sydney Local Health District) (2023) 323 IR 120. 287TS 4/8/2025 pg 56 line 30–33. End of Document