Application by Health Secretary for Broken Hill Health Employees’ (State) Award (No 3) [2022] NSWIRComm 1004

Drafting observations

1. There is significant commonality in the terms of the draft awards provided by each of the Ministry and the BHTEU, with the differences in some of the proposed clauses being matters of style rather than substance.
2. In drafting the New Award I have attempted to adopt plain English language. I have avoided the anachronistic and sometimes dense drafting adopted by the parties. This is consistent with the objects in s 3 of the Industrial Relations Act and of the approach to the resolution of industrial disputes which s 163 of that Act encourages the Commission to take. It is in any event my view that the terms of an award should be accessible and comprehensible to the employees to which it applies, and the use of out-dated and unnecessarily prolix language is an impediment to that objective.

Coverage and classifications

1. For the purposes of the discussion which follows, and for the sake of convenience, clarity and brevity, I note: 1. In their draft awards, the Ministry and the BHTEU defined the classifications contained in the Industrial Agreement as "BIC Classifications". I will adopt the same term. 2. The Commission has made a number of awards that would apply to employees in the Broken Hill Health Service ("BHHS") were it not for those awards excluding the County of Yancowinna from their coverage. I will refer to these as "Relevant Awards". 3. I will refer to the classifications contained in Relevant Awards as, naturally, "Relevant Award Classifications". 4. Employees in the BHHS who are not employed in a BIC Classification and whose employment would be regulated by a Relevant Award were it not for that award excluding the County of Yancowinna from its coverage, will be referred to as "Non-BIC Employees". The Ministry referred to these employees as "Award Free Employees", but as the New Award will apply to those employees (for the reasons which follow) I consider that the use of such a reference in this decision is apt to cause confusion.

Assignment of employees in BIC Classifications to a State Award Classification

1. In the Decision I made the following determination in respect of the New Award's coverage: "247. It would be consistent with my observations at [231] above and my determination at [241] above for coverage of the New Award to be set by reference to the Schedule 2 Awards rather than by the historical coverage of the Industrial Agreement. On that basis I determine that the New Award will apply to those classifications to which the Schedule 2 Awards would apply, but for those awards excluding the County of Yancowinna from their operation. Any classifications existing under the Industrial Agreement which do not have a reasonably equivalent counterpart under a Schedule 2 Award will be dealt with on an exceptions basis."
2. Consistent with that determination, each of the draft awards proposed by the Ministry and the BHTEU would apply to employees in BIC Classifications and to Non-BIC Employees. The difference between the parties stems from the classification structure to be contained in the New Award, and in particular whether the New Award ought to draw a distinction between BIC Classifications and Relevant Award Classifications.
3. In the Decision I made the following direction: "265. I direct the parties to confer with a view to agreeing on the classifications to which the New Award will apply. Consistent with this decision: (1) the classifications in the New Award will be those contained in the Schedule 2 Awards and any additional classifications which presently exist under the Industrial Agreement for which there is no reasonably equivalent classifications under a Schedule 2 Award; (2) the parties should seek to reach agreement on matching each classification under the Industrial Agreement to the nearest equivalent classification under a Schedule 2 Award; and (3) for any classifications under the Industrial Agreement for which there are no reasonably equivalent classifications under a Schedule 2 Award, the parties should seek to reach agreement on the appropriate classifications for inclusion in the New Award."
4. The parties have been unable to reach agreement on the classification structure to be contained in the New Award.
5. The Ministry no longer presses for the "translation" of BIC Classifications to Relevant Awards Classifications. The Ministry's Draft Award maintains the BIC Classifications, with a separate classification structure for Non-BIC Employees derived from Relevant Awards.
6. The BHTEU's Draft Award does not include a classification structure. Rather, it anticipates ongoing transitional arrangements, proposing a clause in the following terms: "11. Transitional Arrangements 1 Employees in BIC classifications at the time the Award is made, shall be transitioned as soon as possible following agreement to the equivalent State Award classification. 2 The weekly rates of pay of employees in BIC classifications shall be preserved under this Award provided that: (a) where the weekly rate of pay of employees in any BIC classification is greater than the combined State rate plus the Broken Hill Town and Versatility Allowance, the rates of pay shall be increased in accordance with Clause 12 - Increases to Wages and Allowances; or (b) where the weekly rates of pay of employees in any BIC classification is less than the combined State rates plus the Broken Hill Town and Versatility Allowance, the rates of pay shall be adjusted in accordance with Clause 4 - Broken Hill Town and Versatility Allowance. (c) the weekly rates of pay referred to at subclauses 2(a) and 2(b) above shall also apply to new employees under this Award. 3 For the avoidance of confusion regarding the application of pay rates and allowances, the State Award classification will include the prefix "BH" for those classifications that have transitioned from a BIC classification. 4 Where there is no equivalent State Award classification or there is no agreement between the parties about an equivalent classification, the employee will remain in the BIC classification, subject to the outcome of any dispute resolution proceedings or subsequent agreement between the parties. 5 Any disputes in relation to the transition arrangements will be subject to the usual dispute resolution procedures in Clause 10." (Emphasis in original)
7. The Ministry's Submissions contained the following contentions: "40. The Union's proposal requires the parties to agree at a future time on a classification transition table. This would result in the new Award not fully finalising or settling the disputes that gave rise to the Award Application. 41. The Ministry has filed three proposed drafts of a BIC classification transition table. Most recently on 26 July 2021, the Ministry proposed a transition table that retained 73 BIC classifications as BIC classifications that had no reasonably equivalent State classification. It proposed that the other 71 BIC classifications were transitioned to HSU State Award classifications. … 44. To date, the Unions have not provided any feedback on the Ministry's draft classification schedule filed on 26 July 2021 or on either of the two earlier filed drafts, other than to indicate their general dissatisfaction and to now delete it from their proposed Award. It seems incongruous that the Unions are now suggesting that there can be meaningful progress on settling a classification transition table and transition process outside of the Award and without the assistance of the Commission. 45. Such an approach is likely to cause further uncertainty for staff about which classifications they are likely to be transitioned to, what it means for them in the meantime and for management in terms of workforce planning. … 47. This issue needs to be resolved and finalised in the making of the Award. Given the lack of any meaningful progress on this, and the Union's proposed Award now not including any transition table, the Ministry respectfully requests that the Commission consider removing the classification transition table and process entirely from the Award, instead retaining the BIC classifications in full. 48. The Ministry initially proposed the transition table to support its Award Application to move BIC classifications to State Award classifications with new staff being employed under the State Award classifications' rates of pay. The Commission did not accept the Ministry's position in this regard and in its decision retained BIC classification rates of pay for existing and new staff (including after any transition to State Award classifications). 49. Given this, and on reflection, the original purpose of the transition table no longer applies. Any transition to State Award classifications would be in name only and potentially add little other value. The BIC classifications, once transitioned, would need to retain a prefix in front of their classification name (to show that they are different to the State classifications for payroll purposes), they would still retain BIC rates of pay inclusive of BHTVA, and would enjoy the State Award terms and conditions except for those preserved in the Commission's decision. … 51. The Ministry's view is that deleting the transition table/process and retaining the BIC classifications would not contradict or frustrate the Commission's decision. The BIC classifications would still have their preserved rates of pay (inclusive of the BHTVA) with the terms and conditions of the relevant State Award, except for those conditions preserved by the Commission's decision. 52. Deleting the transition table and process and retaining BIC classifications would also have the desirable benefits of providing a simpler Award, allowing the Award to be made in its totality and providing closure on this issue. 53. The Ministry's proposed Award defines the BIC classifications as being those from NSW Health's 2018 Information Bulletin IB2018 039 providing the structure for management of BIC classifications in Broken Hill Health Service. This definition has been retained in the Union's proposed Award. The Ministry has, however, conceded to the Unions that a number of BIC classifications which are no longer in use in Broken Hill Health Service are retained in the Ministry's proposed list of BIC classifications at Schedule 1 of Part B of its proposed Award. …" (Footnote omitted)
8. The BHTEU's Submissions contended: "13. The Applicant seeks to restrict the entitlement to payment of the BHTVA to classifications listed in IB2018_039. The Union claims that the Ministry's view is inconsistent with the Commission's Decision. Whilst the BHTVA is included in the rates of pay of those listed classifications, the Union maintains that there are existing employees who are employed under the terms and conditions of the Industrial Agreement but either the employee's classification is not listed or employees are currently classified incorrectly… … 18. The Ministry's previous Award proposal included a proposed classification schedule which deleted existing classifications prior to any further discussions with the Union. The Ministry's proposed classification schedule also removed existing classifications from the Industrial Agreement with the sole intention of replacing those classifications with a State Award classification at a lower rate of pay. 19. In subsequent discussions between the parties, the Ministry confirmed that the Applicant's proposed classification schedule would not include any rate adjustments even when matched with a State Award classification, for example the Patient Transport Officer would continue to be paid the Motor Vehicle Driver rate of pay. Alarmingly, the Ministry also confirmed that it would not be offering apprenticeships if the Industrial Agreement rates were to apply. 20. The Union remains committed to the 'transitioning' arrangements, that is to match Industrial Agreement classifications to a State Award classification. With the exception of a couple of classifications, all other classifications under the Industrial Agreement can be readily matched to a State Award classification if the only change is the classification title, for example changing the classification title from Clerk to Administration Officer. The challenge would be to identify whether any existing employee is correctly classified and if additional classification levels and/or grades are required. 21. The Union's position remains that the parties commit to a fair and transparent process and that no employee should be disadvantaged by the outcome of that process."
9. The HSU Submissions included the following submissions: "6. At paragraphs [39] to [53], the Applicant has proposed to retain the BIC classification structure in its entirety and not to include any transition to the State Award classifications. 7. We do not agree with this approach. The new award must include transitional arrangements from a BIC classification structure to State Award classification structure, with no adverse impact on the minimum wages (BIC classification rates of pay for existing and new employees) being received by employees. The transition will also assist in achieving a modernised award. 8. Further, for BIC classifications that cannot be transitioned due to no equivalent classification in the State Award, it must be retained in its current form in the new award."
10. I accept the position advanced by the Ministry. In broad terms, the proposal that employees in BIC Classifications be assigned to Relevant Award Classifications was premised on the Ministry's primary position in the proceedings that, subject to certain grandparenting arrangements in respect of particular entitlements, the terms and conditions of the employees in the BHHS would be set by reference to the Relevant Awards. As the Decision makes clear, the Ministry did not achieve this outcome in all respects. In the circumstances, the need for the transition of classifications is less immediately apparent.
11. Further, in the Decision I determined that certain terms deriving from the Industrial Agreement ought to be maintained. Some of these were to be maintained only in respect of the employees presently covered by the Industrial Agreement. That calls for a differentiation of classifications between those historically captured by the Industrial Agreement and those separately derived from the Relevant Awards.
12. I also observe that the alignment of conditions of employment and classifications under the Industrial Agreement with those of other awards of the Commission was contemplated in memoranda of understanding between the Ministry and the Barrier Industrial Council dated 17 June 2005 and 30 June 2010. Despite the written commitments of the parties at those times to consult in this regard, there is no evidence of particular progress having been made.
13. The parties were given a further opportunity through the directions made in the Decision to confer and reach consensus on these matters. Over the course of nearly a year the parties made little, if any, progress on reaching agreement on assigning employees in BIC Classifications to Relevant Award Classifications.
14. Requiring the process contemplated by the BHTEU's Draft Award is likely to further protract the disputation between the parties referred to in the Decision. These proceedings have been on foot since 11 March 2019. I accept the Ministry's contentions that the New Award should be aimed at providing a measure of finality to the dispute.
15. This is not to say that the classifications contained in the New Award are set in stone. If the parties identify classifications which should be, but are not, covered under the terms of the New Award, an appropriate application for variation can be made pursuant under the provisions of the Industrial Relations Act. It would be expected that any such application would be preceded by consultation between the parties.
16. The same observations can be made in respect of the HSU submissions that a transition of classifications would assist in the making of a more modernised award. The parties are encouraged to continue to consult with a view to resolving their differences in relation to the classification structure.
17. That being said, it is not necessary to resolve those differences in order for the New Award to set fair and reasonable terms for the employees to whom it applies. While I encourage ongoing consultation between the parties, I do not propose to make it a condition of the New Award.
18. As noted at par 53 of the Ministry's Submissions, reproduced at [18] above, the Ministry has derived the BIC Classifications listed in the Ministry's Draft Award from NSW Health Information Bulletin IB2018 039. It proposes that the reference to the Information Bulletin be included in the New Award. This is unnecessary. All of the BIC Classifications are listed in Schedule 1 to the Ministry's Draft Award. The New Award need not state the source from which that list was derived, even assuming that the reference would have meaning or be accessible to the employees covered by the New Award (having regard to my observations at [10] above). To the extent that the source of the list of BIC Classifications ever needs to be identified, this decision suffices.
19. The BIC Classifications proposed by the Ministry include a number which it submitted "are no longer in use" in the BHHS. The BHTEU accepted that some of the classifications were "obsolete", but that others were either unoccupied or have had a change of title. I was provided with no assistance in drawing the distinction, which is perhaps explained by the union's preferred position that all BIC Classifications be matched to Relevant Award Classifications.
20. I have reservations about including potentially obsolete classifications in the New Award. However, I am unable to resolve this matter on the information available. To the extent that there are BIC Classifications in the New Award which are obsolete or have no utility, I expect that the parties can address this as part of any further consultation or applications for variation. At the least, it may be a matter that can be attended to when the New Award is subject to review under s 19 of the Industrial Relations Act.
21. In short, I have adopted the classification structure proposed by the Ministry. The New Award will apply to employees in BIC Classifications and to Non-BIC Employees. The BIC Classifications and the classifications for Non-BIC Employees, derived from Relevant Awards, are contained in separate schedules to the New Award.

Relevant State Awards

1. The Ministry's Draft Award contains this provision: "4. Employees in State Award Classifications … ii) With the exception of the Annual Leave provisions specified in Clause 5 of this Award, employees under this clause are employed by reference to the full terms and conditions and wage rates and allowances of the relevant State Award listed in Schedule 3 of Part B and/or as set out in Schedule 4 of Part B, as varied from time to time."
2. Schedule 3 to the Ministry's Draft Award contains a list of 29 awards, which are defined in the draft as "Relevant State Awards". Schedule 1 contains a list of the BIC Classifications, against which are identified the "Relevant State Awards" by which the terms and conditions for each classification are to be determined, subject to the award itself. There are two such awards. Schedule 4 lists the classifications derived from the "Relevant State Awards", which the Ministry has identified are presently occupied in the BHHS (that is, Non-BIC Employees). Against each of those classifications the Ministry has identified the "Relevant State Awards" from which rates of pay and conditions of employment for employees in those classifications are to be determined. There are nine such awards, one of which is contained in Schedule 1.
3. Patently, there are more "Relevant State Awards" in the Ministry's Schedule 3 than appear in Schedules 1 and 4. On its terms, proposed cl 4.ii) suggests that the lists of classifications in the Ministry's proposed Schedule 4 is not exhaustive. Further, the use of "and/or" leaves open a construction that the terms and conditions for employees in those classifications may be derived from "Relevant State Awards" beyond those identified in Schedule 4.
4. On 10 February 2022 I arranged for the Registry to send an email message to the Ministry, copied to the other parties, which stated in part: "Commissioner Sloan writes: In reviewing the material that has been filed by the Ministry, I am confused as to the intention of the Ministry's draft award as to the source of terms and conditions for what it describes as 'Employees in State Award Classifications'. Column 3 in Pt B Sch 4 lists against each classification the 'Relevant Award that sets conditions of employment'. On the face of the table in Sch 4, terms for those classifications are set by a total of 9 'State Awards'. However, cl 4.ii) suggests that terms and conditions of employment might also be set by reference to one of the 29 awards appearing in Pt B Sch 3 of the Ministry's draft award. If this is the intention, the draft does not enable a determination as to which of the classifications in Sch 4 each of the awards in Sch 3 applies. If the Sch 3 award does in [fact] set conditions of employment for a classification, then it seems that it should be included in column 3 of Sch 4 to avoid confusion. I would be grateful if the Ministry could clarify the intended effect of its draft award in this respect. If it is the case that for any 'State Award Classification' the conditions of employment might be set by reference to an award other than that appearing in column 3 of Sch 4, I ask that it provide to the Commission and the other parties a table containing in column 3 all of the relevant awards. This will allow for a proper consideration of the implications and effect of the Ministry's proposal."
5. The Ministry responded in an email received by the Registry on 18 February 2022. That email stated in part: "Thank you for your email message forwarded below about the intent of Schedule 4 in the Ministry's proposed Broken Hill Award. We regret any confusion caused. These matters are industrially complex and have been the subject of multiple redrafting over time to accommodate discussions with unions and the Commission's decision. • Schedule 4 was originally included when the proposed award was to include a transition schedule. It was intended to distinguish between state award classifications in use at the time of the making of the award (which receive the wage rates as set down in the State awards) and state award classifications following transition from BIC classifications (which were to maintain the higher BIC rates of pay). It was to avoid any doubt about the State Award classifications in use at the time of the making of the award. • At that time, it was not intended that awards other than those already listed in Schedule 4 would be added to set the terms and conditions of those classifications listed in Schedule 4. • Schedule 3 was subsequently included to list the state awards that are relevant for any state classifications that could be used in the district and which would come under the Broken Hill Award. • Clause 4 (and Schedule 3 and 4) was intended to just clarify that while there are a limited number of state award classifications in use in BH presently, the making of this award would not prevent the district from adopting other classifications (than those listed in Schedule 4) from any of the state awards listed in Schedule 3. • If BIC classifications are maintained as BIC classifications as per the Ministry's proposed award, our view is that there is no longer a need to distinguish between the state award classifications which continue with state award rates of pay (ie those in schedule 4) and those which would have had the higher BIC rates of pay (ie after transition). If the Commission is minded to adopt this approach, Schedule 4 is no longer required. • Schedule 3 continues to be required as it specifies from which state awards classifications may be drawn and therefore which set their terms and conditions (other than those conditions established in the Broken Hill Award)" (Sic)
6. For the reasons which follow, I am not persuaded to adopt the Ministry's approach. Further, while the email from the Ministry went on to identify two alternative bases on which this issue might be resolved, it is not necessary to traverse them as I have determined not to take either course. Given these conclusions I did not consider it necessary to hear from the BHTEU or the HSU on the matters set out in the Ministry's email.
7. It is common ground that many of the BIC Classifications are the same as, or are closely equivalent to, Relevant Award Classifications. There is at least the possibility that in future new employees who might otherwise be, and would previously have been employed in a BIC Classification will be regarded as having been employed in a Relevant Award Classification, and so not be entitled to the benefits conferred by the New Award on employees in BIC Classifications. This is not the outcome anticipated by the Decision.
8. For the reasons set out above, I am willing to accept the Ministry's revised position that there need be no assignment of existing employees to Relevant Award Classifications. However, the corollary is that the BIC Classifications continue to apply for all purposes, and not be at risk of a potential, de facto grandparenting arrangement.
9. As already observed at [18] above, in resisting the BHTEU's proposal that the award mandate ongoing consultation regarding the classification structure, the Ministry contended that the Commission ought to avoid an outcome which "would result in the new Award not fully finalising or settling the disputes that gave rise to the Award Application"; that the issue of the classification structure "needs to be resolved and finalised in the making of the Award"; and, the award should "be made in its totality and providing closure on this issue". I agree with those submissions. The same considerations, though, apply equally to the Ministry's Draft Award. There is a distinct lack of finality, and the potential for further conflict and disputation, in the Ministry's proposal that the New Award "not prevent the [Far West Local Health District] from adopting other classifications…from any of the state awards listed in Schedule 3".
10. Having regard to these matters, I have determined that the New Award will contain only the BIC Classifications and those identified by the Ministry in its Schedule 4. The Ministry has had ample opportunity to identify the Relevant Award Classifications currently in use in the Far West Local Health District to which the New Award will apply. It has identified in its Schedule 4 the Relevant Awards from which the terms of employment for those classifications, outside of the New Award, should be derived. A provision such as its proposed cl 4.ii) is prone to create uncertainty and conflict.
11. Consistent with my observations at [26] above, it is open to the Ministry to apply if necessary for a variation to the award if it wishes to add additional classifications. These might include existing classifications that it may have failed to identify, or new classifications which become, but are not currently, used in the Far West Local Health District.
12. I have included the Ministry's proposed Schedule 3 only for the purposes of permitting the classifications contained in Schedule 4 to be defined and understood. I note that Schedule 3 made reference to the Public Hospital Residential Services Assistants (State) Award 2018, which was rescinded on 30 July 2021. That reference has been removed.

The "Broken Hill Town Allowance" and "Versatility Allowance"

1. The parties are in dispute as to whether the combined Broken Hill Town Allowance and Versatility Allowance ("BHTVA") should be paid to Non-BIC Employees. The Ministry proposes that payment of the BHTVA be confined to employees, existing and future, engaged in a BIC Classification.
2. The BHTEU's Draft Award would require the BHTVA to be paid to all employees to whom the award applies. The BHTEU submitted at par 14 of the BHTEU's Submissions that it would be consistent with the Decision that there "be no distinction in the rates of pay paid to existing employees as opposed to new employees".
3. The HSU submitted at par 4 of the HSU's Submissions that "the BHTVA allowance should be payable to all employees current and existing. No employee should be disadvantaged by the making of the new award".
4. The Ministry's position accurately reflects the Decision. The matter for determination in the earlier proceedings was whether payment of the BHTVA should be "grandparented", and only be paid to existing employees under the Industrial Agreement for as long as they remained in their current position. I found against the Ministry, and determined that the BHTVA should be paid to all existing and new employees engaged in a BIC Classification: see Decision at [213]. The preceding discussion at [199]-[212] of the Decision was clearly in the context of considering whether employees (or classifications) should be deprived of a benefit that they had historically enjoyed.
5. There was no determination that in making the New Award the BHTVA should become payable to employees who had not previously received it. Leaving aside the implications that might arise under cl 6(1)(a) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation") were the New Award to extend the BHTVA to those employees, it was simply not in contemplation.
6. As Non-BIC Employees have not previously received payment of the BHTVA, I do not consider that they would be disadvantaged, in the manner suggested by the HSU, if the New Award maintains the status quo in that regard. I draw attention to the discussion at [135]-[138] of the Decision and my conclusion at [139] that "the provision of fair and reasonable conditions of employment is not predicated on all employees being treated in exactly the same manner".

Minimum wage provision

1. The BHTEU's Award contains a provision to the effect that the minimum rates of pay for employees will be the sum of the applicable Relevant Award rate and the BHTVA. In the BHTEU's Submissions the union contended: "16. Consistent with the Commission's Decision, the classifications in the new Award will be those contained in the State Awards. The State Awards also set the minimum rates of pay for classifications. The weekly rates of pay for classifications under the new Award must not be less than the weekly rates of pay under the State Awards. 17. Setting aside the fact that the BHTVA is an allowance added to the weekly rates of pay, the Union's position is that where it is identified that the rate of pay of any classification under the Industrial Agreement has fallen below the minimum State Award rates, the weekly rate must be adjusted accordingly. Employees should not be penalised for being employed in a classification under the Industrial Agreement."
2. The HSU supported the BHTEU's position.
3. The Ministry opposed the inclusion of the BHTEU's provision in the New Award. In summary, it contended that: 1. the BHTEU's provision was premised on the dual assumptions, neither of which the Ministry agreed ought to be made, that all employees under the New Award: 1. would be assigned to a Relevant Award Classification; and 2. would be entitled to receive the BHTVA; and 1. the proposed clause might result in a small number of employees in BIC Classifications receiving an increase in their rates of pay above 2.5% per annum, in contravention of cl 6(1) of the Regulation.
4. I accept that the BHTEU's position is premised on the assumptions identified by the Ministry. I have dealt above with the classification structure to be included in the New Award and the entitlement of employees to receive the BHTVA. In light of my determination in respect of those matters, the premise of the BHTEU's submissions falls away.
5. While this is sufficient to dispose of the BHTEU's claim, it is worth observing that there is nothing in the BHTEU's Submissions which addresses the application, or potential application, of the Regulation. The BHTEU's Draft Award at cl 12 recognises that employees will have received effective increases of 2.5% for each of the years commencing 1 July 2019 and 1 July 2021. There is at least the possibility that the proposed minimum rate clause would result in additional increases for some employees.
6. As I observed at [151] of the Decision, "the Commission [was] not asked to award increases in remuneration or other conditions of employment that would result in employee-related costs increasing by more than 2.5% per annum". In light of the risk of the BHTEU's proposed clause being contrary to cl 6(1) of the Regulation, and in the absence of this matter having been addressed by the BHTEU, it would not be appropriate to include the minimum rates clause, even were it not for the matters identified at [54] above.

Preservation of the terms of the Industrial Agreement

1. The BHTEU's Submissions included the following: "24. Contrary to the Ministry's view; the Respondent has proposed an alternative Award which provides more detail and clarity of the new Award's terms and conditions of employment, particularly in relation to minimum rates of pay, annual leave entitlements and the accrual of long service leave for existing employees. 25. The Unions seek to include provisions which ensure that the new Award does not adversely impact any employee due to any unintentional oversight or misinterpretation of the terms and conditions of the new Award."
2. The BHTEU's Draft Award includes the following provision: "3.3 Nothing contained in this Award shall operate to reduce the wages and conditions of employment available to any employee at the time of the Award coming into effect."
3. In the HSU's Submissions it was submitted that the proposed clause was "uncontroversial". The HSU described the aim of the clause as protecting the entitlements of employees, "should they be inadvertently impacted by the creation (drafting) of the new award".
4. The Ministry's Submissions included the following: "62. The insertion of the BIC Agreement clauses would muddy the waters in relation to the terms and conditions that apply to the BIC classifications. These additional clauses provide further uncertainty and lack of clarity over terms and conditions which are otherwise established by reference to the State Awards, except for the conditions preserved by the Commission's decision. 63. The insertion of BIC Agreement clauses were subject to determination in the Commission over nine days. The Ministry's understanding of the Commission's Decision is that it preserves certain BIC agreement conditions and otherwise determined that the BIC classification's [sic] terms and conditions are to be established by reference to the relevant State Award. … 65. In addition, inserting a clause that specifically enables claims regarding the previously unclear terms and conditions of the BIC Agreement will mean that the BIC Agreement will continue to be the subject of ongoing disputation after the making of the Award. This frustrates the decision and means that the new Award will not finalise or settle the areas of dispute that led to the Application for the new Award." (Footnote omitted)
5. In the Decision I observed: "231. I have found at [78] above that a special case exists for the making of a New Award. I am satisfied on the evidence that the history and drafting of the Industrial Agreement has created disputes arising out of confusion and disagreement as to both what terms the Industrial Agreement contains and as to how those terms are to be interpreted and applied. For this reason, coupled with a history of conflict between the Ministry and the BHTEU as to what provisions go to make up the Industrial Agreement, I do not consider that it would be appropriate to use the Industrial Agreement as a template for the New Award. To do so is only to invite further conflict. … 256. In its Closing Submissions the HSU stated: '70. There are a range of other differences between the award sought by the Ministry and the alternative proposal advanced by the BHTEU which do not appear to be subject of particular submission including the following: (a) Wording differences in the hours of work provisions (clause 3); (b) Rostering provisions (clause 4); (c) Part-time and casual employee provisions (clause 6); (d) Retention of leading hand allowance (clause 8); (e) Meal breaks (clause 9 and 14); (f) Overtime provisions (clause 11); (g) Retention of various allowances (clause 12); (h) Sick leave paid on termination (clause 18); (i) Termination of employment (clause 20); (j) Provision of uniforms (clause 23).' 257. I recognise that the differences between the parties are not limited to the matters I have considered in this decision. The proposal advanced by the BHTEU was said to incorporate terms from the Industrial Agreement and awards applying elsewhere in the NSW Health Service. As already observed, though, the BHTEU did not make its own application for an award. 258. Of the matters listed by the HSU, I have dealt with the question of allowances. In the absence of the parties having raised particular issues with me for determination, I do not propose to traverse the other provisions identified by the HSU."
6. The Ministry has correctly stated the effect of the Decision. I have already observed that the earlier proceedings determined an application by the Ministry which would have had the effect that terms and conditions of employment would be set by wholly by reference to Relevant Awards, subject to the grandparenting of particular conditions arising from the Industrial Agreement. The Decision determined which provisions of the Industrial Agreement should continue to apply, and on what terms.
7. The provision sought by the BHTEU does not reflect the Decision. Further, consistent with my observation at [231] of the Decision, it would only "invite further conflict".

Wage rates and allowances

1. The wage rates proposed by each of the Ministry and the BHTEU incorporate increases that were previously awarded to the relevant employees, but not passed on pending the making of the New Award. These were 2.5% from the first full pay period on or after 1 July 2019, 0.3% from the first full pay period on or after 1 July 2020 and 2.04% from the first full pay period on or after 1 July 2021.
2. Each of the Ministry's Draft Award and the BHTEU's Draft Award contains a provision to the effect that the rates of pay incorporate these historical rate increases. Strictly speaking, such provisions are unnecessary. However, the employees to whom the New Award will apply have been waiting some time to see an increase to their rates of pay. It is appropriate that the New Award make it clear to them that the rates of pay in the New Award incorporate all increases.
3. The Ministry's Draft Award includes a table containing weekly rates of pay for employees in BIC Classifications. It includes rates for each of the financial years commencing 1 July 2019, 1 July 2020 and 1 July 2021. The BHTEU has not called into question the accuracy of the calculation of those rates. As I result, I have adopted the Ministry's numbers.
4. For the same reason I have adopted the Ministry's quantification of the allowances for which the New Award provides.

Annual leave

1. In the Decision I determined that all employees under the New Award should receive five weeks annual leave per annum, which I found to be a consistent standard across the BHHS. The draft awards provided by the Ministry and the BHTEU give effect to this determination.
2. The annual leave provision in the BHTEU's Draft Award, however, provides for additional annual leave for employees "rostered to work their ordinary hours on Sundays and/or public holidays". This is drawn from cl 10.3 of the Industrial Agreement.
3. This particular aspect of the Industrial Agreement was not the subject of determination in the Decision. Regardless, it is appropriate that it be retained for employees in BIC Classifications. The Decision sought to ensure that employees did not lose an existing annual leave entitlement, either directly as a result of the Decision or as a consequence of the grandparenting arrangements sought by the Ministry. It was not intended to reduce an employee's existing entitlements.
4. As to Non-BIC Employees, the BHTEU's provision would extend the additional annual leave entitlements drawn from cl 10.3 of the Industrial Agreement to all employees under the New Award. This has prompted me to consider whether there are similar entitlements in Relevant Awards that would apply to employees to be covered by the New Award. Each of the Health Employees' Conditions of Employment (State) Award 2021 ("Health Employees Award") and the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2021 ("Public Hospitals Award") - both of which are identified as "Relevant State Awards" in the Ministry's Draft Award - confer an entitlement to additional annual leave on employees "who are rostered to work and do work…ordinary hours shifts occurring on Sunday and/or public holidays", in terms similar but not identical to cl 10.3 of the Industrial Agreement.
5. The effect of the Ministry's Draft Award is that conditions of employment for employees who are not in a BIC Classification will be determined, in the main, by the Health Employees Award and the Public Hospitals Award. In so far as annual leave is concerned, any entitlements will be derived from either of these awards.
6. The controversy in these proceedings has centred on whether the New Award ought to maintain an entitlement to five weeks annual leave per annum, when the entitlement for other employees in the NSW Health Service is determined by the Annual Holidays Act 1944: see for example cl 16(i)(a) of the Health Employees Award and cl 12(i) of the Public Hospitals Award. This entitlement, simply speaking, is four weeks per annum. The controversy concerned the "base" entitlement to annual leave.
7. It was not suggested that the determination in the Decision that employees be entitled to five weeks annual leave per annum should be taken to include any additional annual leave entitlements arising under the Industrial Agreement or a Relevant Award. It may be that I am tilting at windmills and that no party contemplates such an approach. However, for an abundance of caution I have included in the New Award a savings provision to preserve any entitlements an employee may have beyond the "base" entitlement.

Long service leave

1. Each of the parties' draft awards deals with the question of long service leave. Both are consistent with the Decision in confining the enhanced long service leave benefits in the Industrial Agreement to existing employees, that is, those employed in the BHHS as at the date the New Award is made. However, the Ministry's Draft Award limits the enhanced benefits to employees in BIC Classifications, while the BHTEU's Draft Award extends the benefits to all employees under the award.
2. I accept that the BHTEU's Draft Award gives literal effect to the direction at [266(3)] of the Decision, that the New Award "must provide that employees who are employed in the BHHS as at the date on which the New Award is made … will accrue long service leave at the rate of 1.3 weeks per year of service for as long as they are employed under the New Award". However, on reflection that direction was imprecisely drafted and did not properly reflect the reasoning in the Decision.
3. In the Decision I observed: "192. Further and significantly, there was no evidence to suggest that the entitlement to a higher rate of long service leave accrual was enjoyed by employees of the BHHS outside the coverage of the Industrial Agreement. It is noteworthy that in his evidence summarised at [162] above, Mr Lyons of the HSU made no reference to those members of the union outside the coverage of the Industrial Agreement receiving the more generous rate of long service leave accrual."
4. At [195] I further observed that "there is no evidence as to the history of the long service leave provisions before 1995 or that they reflect a broader community standard in Broken Hill".
5. In light of these observations and the analysis in the Decision, it was not the intention that the New Award confer on employees a greater entitlement to long service leave than they presently enjoy. This was consistently the approach taken in the Decision, as already observed. The direction at [266(3)] should properly have referred to "employees who are employed in the BHHS under the Industrial Agreement".
6. For these reasons, I have not adopted the approach pressed by the BHTEU. However, to allow for the possibility of an employee enjoying enhanced long service leave benefits outside the coverage of the Industrial Agreement, I have included a savings provision to ensure that they do not inadvertently lose that benefit.

New classifications and positions

1. The BHTEU's Draft Award contains the following provision: "8. New Classifications and Positions 1 The employer may create any new classification not covered by the awards to which these conditions apply at any time and may fix the remuneration thereof but in such circumstances the employer shall advise the Union of such decision within 28 days and give an opportunity to the representatives of the Union to confer with the representatives of the employer as to the rate of wages so fixed for the duties to be performed and the hours the employee is required to work. In the absence of agreement being reached the matter may be referred to the Industrial Relations Commission for determination."
2. This provision again appears to be predicated on the assumption that employees in BIC Classifications will be assigned to a Relevant Award Classification. I have already dealt with that question.
3. Turning to its effect, the clause would appear to permit the Ministry to create new classifications under the award, subject to reaching agreement with the BHTEU, the HSU and the CFMEU as to the wages, duties and hours of work for the new classifications, with the Commission to determine the matter in the absence of agreement.
4. To state the obvious, an award can only be varied by order of the Commission. This is the case regardless of any agreement reached by the parties.
5. The history of the Industrial Agreement is replete with variations having been agreed, or allegedly agreed, on numerous occasions over many years. Not all of these variations were reflected, or reflected accurately, in the documents adduced in evidence. The evidence revealed significant conflict between the parties as to what terms the Industrial Agreement contained, including whether and how those terms had been varied over the years, and how the existing terms were to be construed.
6. To my mind, a provision which might foster a continuation of "extra award" negotiations and agreements is to be avoided. I accept that to the extent that cl 8 of the BHTEU's Draft Award contemplates changes to the classifications in the New Award, this is properly a matter for consultation between the parties. However, the processes for variation in the Industrial Relations Act will apply whether or not there is agreement between the parties, and they should be followed. I have not included the BHTEU's proposed cl 8 in the New Award.

Dispute resolution

1. In many respects, the Dispute Resolution Procedures clause proposed by each of the Ministry and the BHTEU in their draft awards are the same, with only minor drafting differences. Each requires attempts to be made to resolve disputes at a local level, with escalation to higher levels within the Far West Local Health District or the unions, as relevant. The parties are able to refer unresolved disputes to the Commission for determination.
2. The BHTEU's Draft Award contains the following provision which does not appear in the Ministry's Draft Award: "This Clause shall not interfere with the rights of any party to institute proceedings for the determination [of] any matter in accordance with the Industrial Relations Act 1996."
3. Regardless of whether it is the intention, the provision proposed by the BHTEU might create the impression that a party need not attempt to resolve a dispute at the local level before it is referred to the Commission. In light of the history of these proceedings, and based on my observations in the Decision as to the relationship between the parties, I have determined not to include the BHTEU's provision.

Title

1. The Health Secretary proposed that the New Award be named "Broken Hill Health Employees' Conditions of Employment (State) Award 2019". The BHTEU suggested "Broken Hill Health Employees' (State) Award 2019".
2. In the context of this case the words "Conditions of Employment" do not serve any purpose.
3. Neither party called for the award to have retrospective operation. Rather, each proposed a clause to the effect that the award take effect from the date on which it is made by the Commission. In that context, it is not appropriate that the New Award bear a date of 2019.
4. I have named the New Award "Broken Hill Health Employees' (State) Award 2022".

Term of the award

1. Pursuant to sub-s 16(2) of the Industrial Relations Act, "the nominal term of an award must not be less than 12 months nor more than 3 years". As stated, both the Ministry and the BHTEU proposed that the award take effect from the date on which it is made by the Commission. The Ministry proposed that the award contain a nominal expiry date of 30 June 2022. The BHTEU proposed that the award have a three year term.
2. The Ministry's position would not be compliant with sub-s 16(2). In any event, I am of the view that the circumstances of this case call for the New Award to have a longer, rather than shorter, nominal term.
3. At [76] of the Decision I observed that the relationship between the Far West Local Health District and the BHTEU left a lot to be desired. Despite having had the better part of a year to consult with a view to reaching consensus on the terms of the award, in the context of the Decision, the parties remain significantly in dispute.
4. Were I to accept the premise of the Ministry's position and award the minimum term of 12 months, that would provide little opportunity for the new arrangements contemplated by the New Award to be "bedded down" before, presumably, the parties would be before the Commission on an application for another new award or for a variation to the award. On my observation, this is only likely to invite continued disputation and distract the parties from the implementation of the New Award.
5. It is appropriate to align the nominal expiry date of the New Award to the end of the financial year. I am aware that increases to rates of pay in many of the awards applying to the NSW Health Service have historically been increased with effect from 1 July in each year, as indeed the drafts awards proposed by the Ministry and the BHTEU recognise.
6. For these reasons I have determined that the nominal expiry date of the New Award will be 30 June 2024.

CFMEU

1. The Health Secretary's proposed award contains a definition of "Union" which includes the "Construction, Forestry, Mining and Energy Union (New South Wales Branch)". The BHTEU submitted that the definition should be amended to read "Construction, Forestry, Mining and Energy Union (Mining and Energy division - Broken Hill)".
2. The registered name of the CFMEU in New South Wales is that adopted by the Ministry. For clarity and precision that is the name I have adopted.

Conclusion and Order

1. I am satisfied that the terms of the Award in Appendix A to this decision would set fair and reasonable conditions of employment for the employees to whom it applies.
2. I make the Broken Hill Health Employees' (State) Award 2022 in the terms set out in Appendix A to this decision. The Award will take effect from the date of this decision. Damian Sloan Commissioner

Endnote

1. The applicant in these proceedings is the Health Secretary exercising on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service: s 116(3) of the Health Services Act. In the Decision I referred to the Health Secretary as "the Ministry", for consistency with the terminology in the parties' submissions: see Decision at [9], fn 3. Again for consistency, I will adopt the same reference in this decision.

Amendments 22 February 2022 - Amendment made to cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2022