Ambulance Service of NSW v HSU East

Judgment 1Wayne Anthony Flint (Mr Flint) sought leave to intervene in proceedings for declaratory relief under s 154 (the substantive proceedings) of the Industrial Relations Act 1996 (the Act). In the event the Court were to grant leave, Mr Flint also sought an adjournment of the substantive proceedings to allow him to file evidence and submissions as to what, if any, declaratory relief should be granted. Mr Flint's application was refused by the Court with reasons to be provided later. This judgment constitutes my reasons for refusing the application. 2Mr Flint's application was made by way of Notice of Motion on the first day of the hearing of the application under s 154 of the Act (the substantive application). His application was opposed by both parties to the substantive application. The applicant to the substantive application (Ambulance Service of NSW (AS NSW)) objected to leave being granted to file the application on the basis that Mr Flint had been aware of the substantive proceedings for many months, but had not made his application until the first day of hearing. The principle basis upon which the AS NSW opposed Mr Flint's application to intervene was that he has no standing and no interest in the substantive proceedings. The respondent to the substantive application (Health Services Union East (HSUE)) did not object to leave being granted to Mr Flint to file his application and accompanying affidavit in Court, but opposed the application to intervene, "on the basis of standing". The Court received the Notice of Motion and accompanying affidavit and proceeded to hear the parties' contentions on the Motion. 3Before dealing with the merits of the parties' respective submissions on the issue of intervention, it is necessary to provide some background to the substantive application. 4The AS NSW claims a declaration and an interpretation of the Operational Ambulance Officers (State) Award 2010 (the Award). The claim is set out in the application in the following way: Declaration "The Court declares that on the proper construction of clause 23(f)(i) of the Operational Ambulance Officers (State) Award 2010 (the Award): (1) the duty of the Employer to pay weekly on call allowance is confined to: (a) an employee who is required by the Service to be on call on a roster other than a modified hours roster as defined in clause 4 of the Award; or (b) an employee employed on or before 31 July 1988 who was required by the Service to be on call on a modified hours roster on 31 July 1988 and has continued thereafter to be required by the Service to be continuously on call since 31 July 1988; or (c) an employee required by the Service to be on call on a modified hours roster where weekly on call allowance applies by agreement between the parties. (2) the right of an employee to be paid weekly on call allowance is confined to: ... 5Clause 23(f)(i) of the Award first appeared in its present form in 1998 as clause 12(d)(i). Otherwise, the wording of the clause has remained unchanged. Clause 23(f)(i) provides: (i) The weekly on-call allowance as set out in Item 4 of Table 2C - Allowances, of Part B, Monetary rates, shall apply in the following circumstances: (1) Employees required by the Service to be on call on a roster other than a modified hours roster; (2) Employees employed on or before 31 July 1988 who are required by the Service to be on call; or (3) Employees who are required by the Service to be on call as part of a modified hours roster where the weekly on call allowance applies by agreement between the parties. 6The AS NSW seeks to import into clause 23(f)(i)(2) additional words reflective of a construction consistent with confining the employees referred to in the sub-clause to those employees employed on or before the operative date who were as at that date (and subsequently) working on a modified roster while being continuously on call. 7An affidavit of Noel Quinn, a senior industrial relations specialist in the employ of the AS NSW, referred to an unnamed paramedic employee who in mid-2011 made a claim for payment of the weekly on-call allowance under clause 23(f)(i)(2), backdated for a period of six years. According to Mr Quinn, the employee had been in receipt of a daily on-call allowance since at least 1998, while stationed at Ulladulla, in regional New South Wales. Mr Quinn explained that the employee's claim relied on a simple construction of the sub-clause, namely, that the weekly allowance applied to employees who met only two criteria: employment in the Ambulance Service prior to 1988, and rostered on-call. Although not entirely clear to the Court, it seems that the unnamed employee has been in the employ of the AS NSW since at least 31 July 1988 and has been rostered on-call, although not on a continuous basis, and in receipt of the daily on-call allowance since 1998. The daily on-call allowance (a less generous allowance than the weekly allowance) is dealt with in clause 23(f)(ii) and applies in all other circumstances where an employee is required to be on-call. 8Mr Latham, of counsel, appeared on behalf of Mr Flint on the Notice of Motion. He could not say with any degree of certainty, when pressed, that Mr Flint was the unnamed paramedic employee referred to by Mr Quinn. In his accompanying affidavit on the Motion, Mr Flint said he commenced proceedings for the payment of an on-call allowance in the Chief Industrial Magistrate's Court some time in mid-2011, but that those proceedings were settled on a confidential basis. Mr Flint also stated that he is the Secretary/Treasurer of the Emergency Medical Service Protection Association of New South Wales (EMSPA), a body which is seeking registration as an industrial organisation in New South Wales. Mr Flint also stated that EMSPA (notwithstanding its unregistered status) opposes the making of the declaration and that he has applied to intervene, "to oppose the application for a declaration personally". The Court understands from these statements that Mr Flint seeks leave to oppose the substantive application in his capacity as an individual employee of the AS NSW. Further submissions made by Mr Latham on behalf of Mr Flint suggested that Mr Flint also purported to represent the interests of other unnamed individual employees covered by the Award. It was submitted in this regard by Mr Latham that the declarations being sought "affect every single person that is covered by the Award and who currently receive the on-call allowance; and, that it would be, "a breach of procedural fairness for those people not to be given the right to be heard". 9Mr Latham submitted that the right to intervene in proceedings is a broad discretion that resides in the Court to allow persons to intervene if they have a sufficient interest in the proceedings or if they are affected by the outcome in an indirect way. Mr Flint, it was submitted, is a person with sufficient interest in the present proceedings because under s 12 of the Act, the Award is binding upon him as an employee of the applicant. While acknowledging that Mr Flint's application was, "a very late application", it was submitted on his behalf that the Court has an obligation to balance "the rights of justice" to both sides and to consider any prejudice that may reasonably follow if Mr Flint was granted leave to intervene and the substantive application was adjourned. 10Mr Latham also submitted in support of the Motion that it is desirable for the Court to have a proper contradictor and it is not certain here that the respondent to the substantive application is such a contradictor. 11Mr Pearce, appearing on behalf of the AS NSW, submitted that ss 11 and 12 of the Act do not provide any proper statutory basis for intervention. Mr Flint's reliance on s 12 arises solely from the fact that he is an employee governed by the terms of the Award. However, there is clear authority that ss 11 and 12 provide no basis which would permit an employee to become a party to the Award or be joined as a party. Mr Flint's assertion that he has standing because as an employee he falls within the terms of the Award is not a recognised by the Commission as forming a basis upon which a right to intervene may be granted. In support of the submission, Mr Pearce relied on the Full Bench decision in the Operational Ambulance Officers (State) Award [2011] NSWIRComm 61; (2011) 207 IR 272 at [88]. 12The Court notes at this point that s 11 of the Act, in terms, precludes individual employees, otherwise bound by the terms of an Award under s 12 of the Act, from bringing, or being joined as parties to, an application to make an Award. However, Mr Flint's application falls into a different category, that is, he is not applying to be joined as a party to an application to make an Award, but to intervene in the s 154 proceedings which are concerned with the interpretation, or construction, of the Award. In relation to the application to intervene, Mr Pearce relied on the observations of the Full Bench at [88] (concerning the rights of a group of employees to intervene to disturb a consent arrangement) as providing a clear indication that, in the absence of compelling circumstances, an individual would not be granted the right to intervene in relation to proceedings concerning the interpretation of an Award. The relevant passage from [88] of the decision is extracted below: We find that the 1996 Act precludes an individual employee from either becoming a party to the making of an award or from being joined as a party to an award under Pt 1 of Ch 2 of the 1996 Act. Without delving into the merits of the motion, we would observe that, in the ordinary course, a group of employees (whether members of a union party to proceedings or not) disaffected by an agreement reached between industrial parties, would not appropriately be granted, under these principles, a right to intervene to disturb a consent arrangement. The very nature of negotiations by parties to an award is that outcomes will differ between work classifications and groups, be influenced by cost considerations and compromises reached between parties. ... 13According to Mr Pearce, the observations of the Full Bench in the passage extracted above are relevant and applicable to the present circumstances where Mr Flint seeks leave to intervene in proceedings which concern an interpretation of an Award. 14At the commencement of the substantive proceedings the HSUE advised the Court that it neither supported the substantive application, nor opposed it. On behalf of Mr Flint, it was submitted that it was "quite clear" that HSUE was not a proper contradictor. At that stage, given the lack of opposition by HSUE, the Court formed the view that it might be assisted by some input from the person seeking leave to intervene in the substantive proceedings. Accordingly, the Court, on the second day of hearing, granted Mr Flint a right to intervene limited to the making of submissions. It should not be suggested that this proceeded from any concluded view of the Court that the application for declaratory relief otherwise lacked a proper contradictor, in the sense that HSUE did not have, or may not have had, a "true interest" in the AS NSW case. There is authority to the effect that a respondent party may have a true interest in an applicant's claim for declaratory relief, "even if that party came to see that interest served by not opposing the relief claimed": see Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 (ACCC v MSY) at [16] to [18]; [30]. 15Whether the HSUE at that stage had a "true interest" in the substantive application, in the sense referred to in ACCC v MSY, was not explored, nor did it become necessary to do so. On the third day of hearing, the HSUE, now represented by Mr Murphy of Counsel, informed the Court that acting upon advice it had received in the interim period, it actively opposed the claim for declaratory relief. Mr Murphy contended, in effect, that this change in approach removed any basis which might have otherwise justified Mr Flint's continued presence in the proceedings. 16Mr Latham, on behalf of Mr Flint, made submissions in reply to the submissions of the HSUE. During the course of those submissions, the following exchange took place between Mr Latham and the Court: LATHAM: Your Honour, the association that I represent has at least 50% of the staff employed under the Ambulance Service's Operational State Award. HER HONOUR: Are you representing the association or Mr Flint? LATHAM: Both. My clients wish to ensure that staff covered by this award do not have their rights adversely affected without being able to put arguments as to the proper meaning of the award. Those staff who are members of the organisation and Mr Flint, himself, have a significant financial interest in the determination of this matter. At least until today the HSU has either refused to or been unwilling to put a position contrary to the position the Ambulance Service in these hearings. The position today of the HSU, we say, is deeply ambiguous and the HSU doesn't constitute a proper contradictor in terms of the case law in relation to interventions it is quite clear from the Way Services Case that there is a broad discretion that the Commission and the Court may exercise, particularly in relation to people who have a significant interest in the proceedings. I submit that my clients do have that interest. Unless there's anything further they are the submissions that we make. 17I mention this particular exchange in order to make clear the basis upon which I have approached the application to intervene. No application was made on behalf of EMSPA to intervene in the proceedings. The Notice of Motion nominates one person only as the applicant, that is Mr Flint. Mr Latham did not apply at any stage during the hearing of Mr Flint's application to amend the Motion to add EMSPA as a second applicant. I have considered and decided the application therefore on the basis that Mr Flint is the applicant to the Motion seeking leave to intervene, not EMSPA. 18In submissions opposing Mr Flint's application to intervene, Mr Murphy also relied on the decision of the Full Bench in Re Operational Ambulance Officers (State) Award [2011] NSWIRComm 61. The decision concerned an application by individual ambulance officers who were members of EMSPA to set aside or vary orders of his Honour Justice Staff making the Award which is the same Award the subject of the present substantive application. One of the issues raised before the Full Bench was whether the applicants, being individual employees, had standing to make the application. The Full Bench found that they did not: at [112]. In coming to this conclusion, the Full Bench undertook an extensive review of past and prevailing industrial legislation in this State, as well as relevant authorities which had dealt with the issue. At [44] of the decision the Full Bench remarked: It has never been contemplated in any of the antecedent legislation to the 1996 Act that individual employees could be parties to awards. From the outset, the legislature relied on registered industrial organisations of employees to represent the interests of employees in an industry or calling in the award making process. This conformed with the stated objects of industrial legislation in New South Wales over this whole period. In the 1996 Act, this was reflected in the objects in s 3(d) and (g), the dispute resolution provisions in Ch 3 (noting that these processes are often the foundation for or actually result in award making) and the elaborate mechanisms for the registration of organisations in Ch 5. The notion of common rule ensured that the award made bound all employers and employees in the relevant industry or calling. 19Although the remarks of the Full Bench in the passage extracted above were directed towards whether individual employees could be parties to an Award, Mr Murphy submitted, in reliance on the passage, that there is no relevant difference between the Award making process and a process whereby the true meaning and effect of an Award is tested. 20One argument mounted by the applicants before the Full Bench in support of their contention that individual employees could become parties to Awards was that s 11(3), s 11(4), s 12 and s 209 of the Act evinced a legislative intention to the effect that individual employees could apply to become parties to Awards. The Full Bench rejected this argument in the following passages: [48] This is a contention at odds with the decision of Cahill J Re Cobar Mines Pty Ltd Consent Award 1995, where his Honour stated: The Commission ruled against the application for intervention made by Mr Roach. While it is true that the Commission possesses a wide discretion to allow intervention, the present circumstances, in my view, are insufficient to warrant the granting of intervention in the present case. The Act, with regard to award making, recognises the rights of application and appearance of industrial organisations of employees, not employees individually. So much is evident from s 11, which provides that an application for an award may be made only by an employer, an industrial organisation of employers or employees, or a State peak council, and that "anyone who can apply for an award may become a party to any proceedings for making an award". Section 17 of the Act, which empowers the Commission to vary or rescind an award, provides that s 11 shall apply in regard to any such variation or rescission. Section 166, relied on by Mr Roach, concerns representation of parties in proceedings. The fact is, as I am informed, that all the unions parties to these proceedings had members employed under the award before the retrenchments took place. However, as I further understand the position, in 1997 a large number of employees who were members of the AWU made a conscious decision to resign from that body and join the Rural Workers Union, an unregistered organisation for the purposes of the Act. In doing so, they effectively ruled themselves out of representation in the award-making procedures prescribed by that legislation. It cannot reasonably be said, in the circumstances, that they should nevertheless be allowed to participate in such proceedings either individually or by an agent or by a body unrecognised by the Act, of which they are members, or that it would be a denial of natural justice if participation on such a basis were not permitted. (emphasis added) [49] If, notwithstanding Cobar Mines, the applicants are correct in their contentions it would mean (and the applicants conceded this) that individual employees would not have standing to apply for the making of an award, but having been made a party to an award, the individual employees could apply to vary or rescind the award, to appeal any decision and indeed, to be engaged in any conciliation and arbitration process involving renewal or replacement of the award. In our view, this would create a chaotic situation (both in terms of award regulation and dispute resolution) and would undermine the status of registered organisations. There is no rational basis for bestowing status on a registered organisation to apply for an award and to be a party to an award to bind all employees in an industry or calling, only to provide individual employees with standing to vary or rescind the award or to participate in negotiations in respect of the making of the award or variation of the award. It would be completely inconsistent with the object of the 1996 Act expressed in s 3(d) "to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies". It would not encourage representative bodies of employees if individual employees were given equal standing as a party to the making of a common rule award. [50] If the applicants are correct, many thousands of individual employees could apply to become parties to the making of an award and each of them would be required to be served in relation to any application concerning the award: r 6.9(5) of the Commission's Rules. The applicants submitted that this would be manageable because the Commission would retain the discretion of having to be first satisfied that an individual employee had a sufficient interest in an award before he or she could be made a party. But if the provisions of Div 1 of Ch 2 of the 1996 Act are to be construed in the manner contended for by the applicants, namely, an individual employee may apply to become a party to the making of an award that is to bind the employee, it must follow that the employee would have sufficient interest. This would create its own acute difficulties in the case of enterprise awards, but, in the case of awards applying across sectors, occupations or industries, the result would be to render the system effectively unworkable, in a way that the legislature set its mind against by the provision of a system for the fair and orderly regulation of industrial relations. 21Later in the decision, the Full Bench also dealt with some relevant principles to be applied when considering applications to intervene in proceedings: [80] The jurisprudence in this Commission regarding intervention is usually regarded as stemming largely from a decision of McKeon J In re Special Constables (Police Department) Award [1956] AR (NSW) 880 (although there is an earlier authority to the same effect In re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341). What his Honour there determined has been adopted as the practice in this jurisdiction in relation to applications to intervene (subject to the provisions of s 167 of the 1996 Act). [81] The following principles may be drawn from Plumbers and Gasfitters and Special Constables: (a) whether a person is to be granted leave to intervene is a matter that lies within the discretion of the tribunal; (b) the granting of leave to intervene does not confer upon the intervener the full right of a party; (c) intervention in a proceeding for an award should be treated as a protective step to ensure that the interest that the intervener has in the case is fully appreciated and adequately protected and is not prejudiced or placed in jeopardy; (d) the Commission retains the power to restrict or limit the intervener in such manner and to such extent as it may think fit. Duplication should be avoided; (e) the Commission, when it permits intervention, should actually exercise at all times a careful and strict control over the extent to which an intervener may participate in the case and should set its face against allowing interveners to go beyond such point as the Commission is satisfied is necessary to protect their own particular interest. 22Although the remarks of the Full Bench were directed towards an application made by individual employees to intervene in proceedings concerned with making or varying an Award, I took the view that the remarks, together with the earlier observations of the Full Bench (at [48] to [50] of the decision) were of equal application to the present circumstances, which involve an interpretation or construction of the Award. It seemed to me that if all the individual employees governed by the Award could apply to intervene in proceedings concerned with the interpretation of the Award then, "this would create a chaotic situation ... and would undermine the status of registered organisations": Re Operational Ambulance Officers (State) Award at [49]. If any number of individual employees could apply to intervene at various times in the proceedings when their interests (as employees governed by the Award) otherwise are adequately protected by a registered organisation, this would have the potential to result in considerable and unnecessary disruption to those proceedings. Here, the HSUE is a proper contradictor to respond to the substantive application by reason of its active opposition to the claims of the AS NSW. Although Mr Flint is not a member of the HSUE, he is an employee governed by the Award and in this regard it may be understood that his interests will be adequately protected by the HSUE, a registered organisation representing the interests of a large body of employees also governed by the Award. It also follows from this course of reasoning that there can be no abuse of procedural fairness in not permitting individual employees who may be affected by the outcome of the substantive application to be heard in relation to that application if their interests will be, or are likely to be, adequately protected by a proper contradictor, representing the interests of other employees also governed by the Award. 23My comments also take into account the principles drawn by the Full Bench in Re Special Constables (Police Department) Award [1956] AR (NSW) 880 and Re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341. This Court has a broad discretion to grant or refuse to grant an application to intervene. The factors addressed above weigh against granting the application. In short, the Court, has a proper contradictor to respond to the substantive application. There is no reason to suggest that Mr Flint's interests as an individual employee governed by the Award will not be sufficiently protected by the opposing submissions put by HSUE on behalf of those employees also governed by the Award. Hearing only one set of opposing submissions also serves to avoid any duplication of argument. 24Accordingly, the Orders sought by Mr Flint in the Notice of Motion are refused and the Motion is dismissed.