Headnote
[This headnote is not to be read as part of the decision]
The Police Association of New South Wales ("PANSW") made an application pursuant to s 17 of the Industrial Relations Act 1996 (NSW) ("Act") to vary the Crown Employees (Police Officers - 2017) Award ("Police Award"), the effect of which would be to increase the salaries and salary-related allowances provided for in that award by 2.5% with effect from 1 July 2020 ("PANSW Application").
The Australian Paramedics Association (NSW) ("APA") made an application pursuant to s 17 of the Act seeking a variation to the Paramedics and Control Centre Officers (State) Award ("Paramedics Award"), the effect of which would be to increase the salaries and salary-related allowances provided for in that award by 2.5% with effect from 1 July 2020. In the alternative, the application sought a new award pursuant to s 10 of the Act, which would be to the same effect ("APA Application").
The Commissioner of Police and the Health Secretary (together, "the Crown") opposed the PANSW Application and the APA Application respectively. The Crown contended that there should be no increase awarded in these proceedings. Its position was that the Applications must be considered in the context of the Government's stated position that through "pausing" wages in the New South Wales public sector for the 2020-21 financial year, savings of approximately $3 billion will be realised in the next four years; these funds will be placed into a new "Infrastructure and Job Acceleration Fund" which will be used for "smaller, shovel-ready projects touching every corner of the state"; investment in these projects will have a greater stimulatory effect on the New South Wales economy than a pay increase to public sector employees; and, for this reason the Commission should decline to award any increases to salaries or salary-related allowances in respect of the Police Award and the Paramedics Award.
Noting that these issues had been considered by the Commission in Application for Crown Employees (Public Sector - Salaries 2020) Award and Other Matters (No 2) [2020] NSWIRComm 1066 ("Public Sector Salaries No 2"), the Crown conceded that in light of the outcome in those proceedings it would be "open to the Commission to find that an increase of 0.3% would be appropriate to create equality across the public sector".
Section 10 of the Act empowers the Commission to make awards "setting fair and reasonable conditions of employment for employees". The PANSW contended that the assessment of what constitutes fair and reasonable conditions of employment in a particular year must commence with the presumption that public sector employees receive a 2.5% increase each year, consistent with the Government's wages policy reflected in cl 6 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) ("Regulation").
The PANSW contended that an increase of 2.5% was warranted having regard to the Wage Fixing Principles, presenting a "multifactorial case" relying on each of the work value, productivity and efficiency, and special case sub-principles.
The APA relied wholly on the special case sub-principle, contending that a 2.5% increase was justified having regard to the work of paramedics and control centre officers during the 2019-20 bushfires in New South Wales and in responding to the COVID-19 pandemic.
The PANSW and the APA also contended that on economic grounds the Commission should award an increase of 2.5% due to the stimulatory effect, in the form of increased spending, that an increase in wages would have on the New South Wales economy. This was said to be greater than the investment in infrastructure proposed by the Government. In any event, they argued that the economy of New South Wales was in a sufficiently sound state to be able to fund both the claimed salary increases and an increase in infrastructure spending.
The Commission held:
(1) There is no presumption that the outcome in Public Sector Salaries No 2 will necessarily be applied to the Police Award and the Paramedics Award. That is, the Full Bench is not necessarily constrained by the outcome in Public Sector Salaries No 2. That matter was determined on the evidence presented to the Full Bench in those proceedings. The PANSW Application and the APA Application must be determined on the evidence adduced in these proceedings: [49].
(2) It would not be in the public interest to permit members of the PANSW and the APA to obtain a forensic advantage by having their respective Applications considered in isolation to the totality of the applications determined in Public Sector Salaries No 2. Further, such an approach would fail to give effect to the object contained in s 3(a) of the Act, namely the provision of a framework for the conduct of industrial relations that is fair and just: [56].
(3) No reason had been provided to depart from the approach taken by the Full Bench in Application for Crown Employees (Public Sector - Salaries 2020) Award and Other Matters [2020] NSWIRComm 1044 ("Public Sector Salaries No 1") and Public Sector Salaries No 2, on the question of whether there is a "presumptive outcome". There is no presumptive outcome in respect of the Applications. The employees do not come into these proceedings with an entitlement to a particular wage increase: [62].
(4) An argument that the sub-principles might operate in a manner analogous to costs savings, where the combined savings from a range of initiatives, which may not have affected all employees, might still be "pooled" into a fund to be used for salary increases from which they can all benefit, does not reflect a proper application of the Arbitrated Case Principles: [66].
(5) A party need not show that a 2.5% increase is warranted under the special case sub-principle or the work value sub-principle or the productivity and efficiency sub-principle. If the Commission is satisfied that the evidence justifies an increase under more than one sub-principle, the quantum of each such increase can be combined to form a total which can be awarded to the employees: [71].
(6) To adopt the "cumulative" approach urged by the PANSW it is necessary that the sections of the workforce that have seen an increase in their work value, or who have made a significant contribution to productivity and efficiency improvements, are sufficiently representative of the relevant workforce as a whole that the increases that flow from those elements might properly result in across-the-board salary increases: [73].
(7) The PANSW had discharged its onus of demonstrating that the PANSW Application attracts the special case sub-principle. This is on the same basis as was found to apply in Public Sector Salaries No 2: [79].
(8) In relation to the PANSW Application:
(a) for the purposes of considering the work value and productivity and efficiency sub-principles, the relevant datum point is 1 July 2011: [84];
(b) changes introduced as a consequence of the Re-engineering process do not justify an across-the-board wage increase under the work value sub-principle, but can be considered in the context of the productivity and efficiency sub-principle: [108];
(c) the Active Armed Offender reforms attract the work value sub-principle: [110];
(d) the measures claimed by the PANSW to attract the productivity and efficiency sub-principle have either delivered productivity or efficiency improvements to the NSW Police Force, or have made a substantial contribution towards the attainment of the objectives of the NSW Police Force to become more efficient. While the evidence falls short of establishing a "significant contribution" by employees to each measure, a sufficient case has been made out to attract the productivity and efficiency sub-principle: [190].
(9) The APA has made out a case attracting the special case sub-principle: [221].
(10) The Commission should have regard to the likely changes in the value of money over the life of the award. That is clearly consistent with the authorities. However, the authorities do not support the proposition that the Commission ought not to have regard to movements in inflation since the last increase to salaries and salary-related allowances in the relevant award. That was the approach taken in Public Sector Salaries No 2 and no persuasive reason was offered as to why the Commission should approach these proceedings on any alternative basis: [289]-[290].
(11) The evidence demonstrates a need for restraint in the particular circumstances of the 2020-21 financial year, but that restraint does not preclude any increase being awarded: [296].
(12) The PANSW has established that the nature and extent of changes in the work of police officers since the datum point, reflected in findings as to the application of the work value and productivity and efficiency sub-principles, justifies an increase to the salaries and salary-related allowances contained in the Police Award. To that extent, the Police Award does not currently set fair and reasonable conditions of employment in that it does not currently reflect changes to the work value of police officers, or their contribution to productivity and efficiency improvements, since 1 July 2011: [299].
(13) While the evidence calls for restraint in the particular circumstances of the 2020-21 financial year, this should not preclude the Police Award being varied to ensure that its terms are, and remain during its term, fair and reasonable: [300].
(14) The combined effect of the bushfires and the COVID-19 pandemic attract the special case sub-principle in respect of the APA Application. An award to employees covered by the Paramedics Award is warranted: [304].
(15) It would not "create equality across the public sector", or otherwise be fair and reasonable, to deny employees covered by the Paramedics Award an increase to their salaries and salary-related allowances in the same percentage awarded in Public Sector Salaries No 2: [306].
(16) The special circumstances of the case warrant the award of an additional one-off payment to employees covered by the Paramedics Award: [307].
(17) There are exceptional circumstances within the meaning of cl 6.2 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW), permitting the retrospective operation of any increases: [318].
The Commission ordered that:
(1) The salaries and salary-related allowances in the Crown Employees (Police Officers - 2017) Award are to be increased by 1.75%, with such increase to take effect from the first full pay period on or after 1 July 2020: [319(1)].
(2) The salaries and salary-related allowances in the Paramedics and Control Centre Officers (State) Award are to be increased by 0.3%, with such increase to take effect from the first full pay period on or after 1 July 2020: [319(2)].
(3) Employees covered by the Paramedics and Control Centre Officers (State) Award are to receive a payment equal to the difference between $1,000 and 0.3% of their annual base salary under that Award at the rate immediately prior to the increase required by Order (2), such payment to be made within 28 days: [319(3)].