Application for Public Health System Nurses’ and Midwives’ (State) Award 2022 [2022] NSWIRComm 1066

Industrial Relations Commission (NSW)|2022-08-17

EX TEMPORE DECISION

The Commission has before it two applications brought by the Health Secretary pursuant to s 10 of the Industrial Relations Act 1996 ("Act").
The first application (matter 2022/00192670) seeks the making of an award to be known as the "Public Health System Nurses' and Midwives' (State) Award 2022". That award would: 1. operate for a period of one year from 1 July 2022; 2. provide for an increase of 2.53% to salaries and salary-related allowances; 3. "roll over" the terms of the Public Health System Nurses' and Midwives' (State) Award 2021 subject to: 1. amending the definition of "flight nurse" in cl 3 (Definitions); 2. the addition of a note to cl 11 (Leave for Matters Arising from Family Violence), to the effect that policies applying within NSW Health may provide for greater benefits than those contained in the clause; 3. the addition of a note to cl 45(i) (Termination of Employment), to the effect that s 117 of the Fair Work Act 2009 (Cth) may operate to provide an alternative period of notice, to the extent that the provision has operation; 4. "updating" cl 58 (Area, Incidence and Duration) and cl 2 (No Extra Claims); and 5. other changes described in the application as "minor changes such as language updates and policy preferences"; and 1. rescind and replace the Public Health System Nurses' and Midwives' (State) Award 2021.
The second application (matter 2022/00192672) seeks the making of an award to be known as the "Crown Employees Nurses' (State) Award 2022". That award would: 1. operate for a period of one year from 1 July 2022; 2. provide for an increase of 2.53% to salaries and salary-related allowances; 3. "roll over" the terms of the Crown Employees Nurses' (State) Award 2021, subject to "updating" cl 13 (Area, Incidence and Duration) and cl 14 (No Extra Claims); and 4. rescind and replace the Crown Employees Nurses' (State) Award 2021.
Each of the applications is supported by an affidavit of Rebecca McGrath, Principal Workplace Relations Advisor with the NSW Ministry of Health. Ms McGrath deposes that each of the proposed new awards satisfies the requirements of s 23 of the Act in that they provide for equal remuneration and other conditions of employment for male and female employees doing work of equal or comparable value.

Applicable legislation and principles

The principles that the Full Bench ought to apply in determining the applications are well established. They are summarised in Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 at [17]-[32].
We assume familiarity with the Act and Regulation. We will not reproduce the provisions to which we refer.
We are mindful of the Commission's jurisdiction under s 10 of the Act, and the matters to which we must by s 146(2) have regard in exercising that jurisdiction (including the objects in s 3). We note the constraints imposed on our jurisdiction by s 146C of the Act and the Regulation.

Determination

We have determined, pursuant to s 10 of the Act and subject to one minor correction (see [14(1)] below), to make awards in the terms sought in each of the applications.
Other than in respect of the salaries and salary-related allowances for which they provide, there is no argument that the proposed awards would set other than fair and reasonable conditions of employment. In relation to that caveat, the increases to salaries and salary-related allowances in the proposed awards exhaust the Commission's jurisdiction as constrained by the Regulation. We are satisfied that the proposed awards would set fair and reasonable conditions of employment for the employees to whom they apply, to the extent that the Commission is empowered to achieve that outcome.
As there is agreement to the proposed awards commencing from 1 July 2022, by virtue of cl 6(2) of the Regulation there is no impediment to the proposed awards having a retrospective date of operation.

Orders and directions

In matter 2022/00192670 - 1. pursuant to s 10 of the Act, we make an award to be known as the "Public Health System Nurses' and Midwives' (State) Award 2022" in the form of Schedule 1 to the Application for a New Award filed by the Health Secretary on 30 June 2022, save that: 1. the notes which are proposed to be included in cl 11 (Leave for Matters Arising from Family Violence) and cl 45(i) (Termination of Employment) are excluded; and 2. cl 11 be amended by adding the following provision: "(vii) This clause does not preclude the application of NSW Health policies which may provide for greater benefits than those set out above." 1. cl 45 be amended by adding the following provision: "(v) This clause does not preclude an employee receiving any greater period of notice of termination to which they might be entitled under s 117 of the Fair Work Act 2009 (Cth)." 1. pursuant to s 17 of the Act, we rescind the Public Health System Nurses' and Midwives' (State) Award 2021.
In matter 2022/00192672 - 1. pursuant to s 10 of the Act, we make an award to be known as the "Crown Employees Nurses' (State) Award 2022" in the form of Schedule 1 to the Application for a New Award filed by the Health Secretary on 30 June 2022, save that in cl 13(b) the reference to "Crown Employees Nurses' (State) Award 2019" be amended to read "Crown Employees Nurses' (State) Award 2021"; and 2. pursuant to s 17 of the Act, we rescind the Crown Employees Nurses' (State) Award 2021.
We direct that by 4.00pm on 19 August 2022 the Health Secretary is to file and serve: 1. draft Short Minutes of Order in each matter reflecting our orders at [13] and [14] above; and 2. a computer-readable version of the award to be made in each matter.

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: 17 August 2022

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