Australian Paramedics Association (NSW) v Health Secretary

Industrial Relations Commission (NSW)|2018-05-16

Judgment

In November 2017 the Australian Paramedics Association (NSW) ("APA") notified a dispute with NSW Ambulance ("Health Secretary" or "Ministry") concerning a refusal to pay a member an entitlement under the Operational Ambulance Officers (State) Award ("the Award"). NSW Ambulance denied the payment on the basis of its construction of the relevant clause. The Health Services Union ("HSU") had also notified a dispute in Matter IRC 2017/00327678 raising the same issue.
The HSU submitted that its dispute notification was terminated on the basis that the substance of it would be joined to this matter. On that ground it sought standing as a second notifier rather than as an intervener. No issue was taken by the APA or the Ministry with the right of the HSU to be heard or to lead evidence. I have therefore regarded it as a party in its own right.

Background

The disputes notified by the unions concern the proper construction of cl 23(a)(i) of the Operational Ambulance Officers (State) Award ("the Award"). Relevant parts of cl 23 are: (a) (i) Time on call means time during which an employee who is rostered off duty is required to hold himself or herself in readiness to answer a call. In any one day where an employee answers telephone calls when not on call, he or she is to be paid for one hour at ordinary rates of pay. (ii) The provisions for employees recalled to work are contained in this clause. A recall under this clause shall not be treated as overtime for any other purpose and shall not be treated as time worked for the purposes of clause 22, Roster of Hours. (iii) Whilst no provision is made as to freedom from on call, it is the intention of the parties that employees should be free from call, as far as practicable, on at least 14 days in each roster cycle of 28 days. However if required by the employer, and with the agreement of the employee, an employee can be on call in excess of 14 days in each roster cycle of 28 days. In such circumstance, the employee shall receive the daily on call allowance for each such additional episode. (iv) … (v) A period of on call is to be regarded as commencing at the completion of duty on one rostered shift to the commencement of duty on the next rostered shift. (vi) … (b) (i) Time on call shall not be counted as time worked unless an employee is called to duty, in which case the employee shall be paid for a minimum of four hours at overtime rates for each time he or she is recalled; provided that where a second or subsequent call is received by an employee whilst he or she is still performing duties associated with the first call, he or she shall attend the second or subsequent call without additional payment, unless the total time exceeds four hours, in which case payment shall be made for the actual time worked at overtime rates. (ii) … (iii) A call out shall be deemed to commence at the time the employee is tasked by the Operations Centre and shall be deemed to be complete when all duties associated with the case/s are complete. (c) … (d) An employee who is not on call shall only be recalled to duty with the employee's agreement. Such a recall is subject to the same provisions as recalls performed when an employee is on call. (e) The provision of paragraph (i) of subclause (b) of this clause shall not apply to employees attached to One-Officer Branch Stations or to employees supplied with quarters as set out in subclause (b) of clause 38 Accommodation, who are recalled to duty but not required to leave the station, in which case, the employee shall be paid for the actual period or periods of duty in any one day a minimum of two hours at overtime rates. … (emphasis added)

Remedy Sought

The APA sought [1] : Recommendation 136(1)(a) APA (NSW) seeks the following recommendation pursuant to section 136(1)(a) of the Industrial Relations Act 1996 (NSW) (the Act): 1. That Mr O'Brien be paid one hour at ordinary rates of pay in accordance with clause 23(a)(i) of the Operational Ambulance Officers (State) Award (the Award). Section 175 Interpretation For the purpose of exercising its powers under section 136 of the Act, APA (NSW) asks the Commission to exercise its powers under section 175 of the Act to determine the following question of interpretation: 1. Under what circumstances are relevant employees covered under the Award entitled to payment under clause 23(a)(i).
The HSU supported the making of the recommendation.
The Ministry submitted that an officer in the circumstances of Mr O'Brien is entitled to a minimum of 4 hours at overtime rates but is not entitled to an additional payment for answering the telephone call which recalls the officer to duty. As the debate developed at the hearing an issue arose as to the breadth of the interpretation sought by the APA and that it extended beyond what was necessary to decide whether to make the recommendation claimed. The Ministry sought to reserve its position in relation to circumstances extending beyond those relating to Mr O'Brien. The response of the APA was a submission by Mr Latham to the following effect [2] : "Could I just say, contrary to some of the submissions put, the claim of the APA is quite clear and set out in submissions of 28 March 2018. I will read them onto the transcript so there is no confusion: 'The APA submits any time an employee answers a telephone call from NSW Ambulance asking them to be recalled to duty when he or she is off duty, he or she is entitled to ordinary rates of pay under s 23A(1).' That is the claim." I propose to determine that claim.

Evidence

The APA relied on statements from: 1. Gary Wilson - Paramedic at Gundagai Station, union delegate and member of the APA's Executive Committee; 2. Dennis Munday - Paramedic Specialist at Broken Hill Station; and 3. Nathan O'Brien, who made 2 statements.
The HSU relied on statements from: 1. Robert "Bluey" Mclean - employed by Sydney Water as Production Officer at Penrith Sewage Treatment Plant; 2. Stuart Hatter - Divisional Manager - Ambulance at HSU NSW/ACT; 3. Steven Fraser - Paramedic at Nambucca Heads Ambulance Station and union delegate.
The Ministry relied on statements from: 1. Bruce Purves - Duty Operations Manager - Murray/Griffith Command, Clinical Operations, Southern Sector; 2. Cassandra Botha - Senior Workplace Relations Advisor, Workplace Relations Branch, Ministry of Health; 3. Jamie Vernon - Assistant Commissioner and Director Control Division at NSW Ambulance; 4. Brad Goodwin - Zone Manager - Sector Operations, Clinical Operations State Headquarters; and 5. Liesa Huggins - Zone Manager Murrumbidgee, Clinical Operations, Southern Sector.
At the commencement of the hearing, Mr Latham, opened by stating there were no factual disputes. He went on to submit [3] : "There is a vast mass of evidence in this case. In my view much of that evidence deals with usage, if I can describe it that way, or custom. In the notifier's view that material is irrelevant and doesn't really need to be dealt with at all. If all of that material was excluded the amount of material left is quite small and there are a number of different ways that might be dealt with. One is it might be dealt with as part of a general finding by yourself as to relevance. Alternatively, we can go to each paragraph which might take some considerable time. I submit there is simply no doubt two people giving evidence as to what they think the clause means or, secondly, whether they have been paid according to the claims, or they have claimed according to the clause except, of course, in relation to the notification. That issue will need to be determined first or at some early stage. In relation at least to the witnesses of the department and the notifier there has been agreement reached that those witnesses will not need to be cross examined so that will sort that issue out."
Mr Fox provided a Submission on Evidence and a Schedule of Objections to the statements filed on behalf of the Ministry. Ms Raper while agreeing with the submission of Mr Latham drew a distinction between the evidence filed by the Ministry and that filed by the unions. She submitted the Ministry's evidence demonstrated the practice of the parties rather than their subjective views. It was also descriptive of the roles of various classifications and the process adopted in contacting officers who are not on call but who have previously indicated a willingness to be contacted for the purpose of being recalled to duty. The evidence of Ms Botha was in a different category providing a summary of the Award history based on the Commission's and the Ministry's records.
With the consent of the parties the matter proceeded on the basis that the evidence would be provisionally admitted subject to relevance. I will make further observations about the evidence after referring to the authorities dealing with the principles to be applied in award interpretation.

Principles of interpretation of awards

There was substantial agreement on the principles. In his written Outline of Submissions Mr Latham submitted: "3. The principles in relation to the interpretation of awards are clear. In Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Industrial Relations Secretary [sic: Secretary of the Treasury] [2014] NSWIRComm 23, 87 NSWLR 41 at [104], Walton J held that The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. 4. The process begins and ends with the text. As the Full Bench held in NSW Fire Brigades (quoted with approval in [2014] NSWIRComm 23, 87 NSWLR 41 at [113] In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear. 5. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning: Kucks v CSR Ltd (1996) 66 IR 182 at 184 6. As Madgwick J also held in Kenoss Contractors Pty Ltd v Warren 147 IR 390 at [35]: the text must, despite any judicial straining of it, reasonably bear the meaning assigned to it: the Court is not simply to embark on a process of inventing provisions it thinks ought to have been made in substitution for those that were made. 7. … What is relevant to that determination? 8. As Walton J held in PSA v Industrial Relations Secretary [2017] NSWSC 1473, 271 IR 77 at [59]: In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible."
Ms Raper submitted: "12. The Commission's powers and approach when interpreting an industrial dispute for the purpose of dispute resolution were conveniently summarised by the Commission recently in the matter of Health Services Union New South Wales v Ambulance Service of New South Wales [4] at paragraphs 9-16 and 39 with regard to the use of extrinsic material (see also Health Service Union NSW v Ministry of Health re infectious cleaning allowances [5] at [7-12]. 13. Broadly, the appropriate approach to be taken in applications of this kind is: (a) Consideration needs to be given to the actual words used, and their plain ordinary English meaning, and the context in which the words are used: Bryce v Apperley [6] ; New South Wales Fire Brigade Employees Union and New South Wales Brigades [7] , and Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales [8] ; (b) Industrial instruments are to be construed not only according to the text but also by their context in the wider scheme or structure of the instrument including with reference to extrinsic material: Polan v Goulburn Valley Health [9] at [32]; (c) A purposive approach should be taken when construing awards, consistent with s. 33 of the Interpretation Act 1987 (NSW): Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades v New South Wales Fire Brigade Employees' Union [10] at [46] and [47], as cited in Health Services Union New South Wales v Ambulance Service of New South Wales [11] at [14]; (d) An industrial instrument is to be understood in the light of its industrial context and purpose and the commercial and legislative context in which it applies: Amcor Limited v CFMEU [12] at [2], [13], [30] as cited in Health Service Union NSW v Ministry of Health re infectious cleaning allowances [13] at [10]; and (e) Where the meaning of an industrial instrument cannot be discerned on its face, the history of the provision and past conduct of the parties evincing intention is relevant: Transport Workers' Union of Australia v Linfox Australia Pty Ltd. [14] "
Mr Fox submitted: 4. The jurisprudence of the Commission in the interpretation of industrial instruments is well settled. The relevant principles have been recently set out. [15] 5. The Commission may also be informed by the approach of the Fair Work Commission in Berri [16] , which clearly set out principles of interpretation. Regard should, of course, be had to the different legislative context and the nature of enterprise agreements as distinct from awards. Contextual Approach 6. A clause should be interpreted in its context. That context includes: a. The clause as it appears in the agreement, by reference to place and arrangement. b. The instrument as a whole. c. The legislative context. d. The industrial circumstances. Purposive Approach 7. A purposive approach to the interpretation of instruments is necessary. Where not expressly stated, purpose should be inferred by reference to construction [17] . 8. The clause has a beneficial purpose and should be interpreted consistently with the conferring of that benefit. The nature of this benefit is to be discerned by reference to construction. Disposition to extrinsic material 9. The admission of extrinsic material is limited to where an ambiguity is established. The 'True Rule' in Codelfa [18] requires that before having regard to extrinsic material the Commission must have found that the terms of the award are ambiguous in their meaning. The Commission will not be able to pass this barrier, even if it were it would not be assisted by the extrinsic evidence filed by the respondent. a. Codelfa has been accepted into the jurisprudence of the Commission [19] . b. Extrinsic material can only go to objective evidence of intention. Evidence of subjective intention is inadmissible in all circumstances.
I would strike only one cautionary note relating to the submission of Mr Fox about the need to find ambiguity before having regard to extrinsic material. In Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [20] , Walton J, President, after discussing at length the judgment of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW quoted his Honours conclusion, at [125] as: "His Honour concluded (at 352): The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although ... if the facts are notorious knowledge of them will be presumed." He then observed at [127] - [128]: "Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible." (Emphasis added)
It is noteworthy that Walton J, in connection with the interpretation of awards did not repeat the reference to ambiguity but preferred the broader test of "susceptible to more than one meaning". The meaning so described is one that is reasonably open [21] . His Honour also began and ended his analysis of the principles by reference to the seminal decision of Street J in George A. Bond & Co Ltd (in liq) v McKenzie [22] . His Honour said: "Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award" (Emphasis added)

Evidence

Much of the evidence led relates to the belief or understanding of the witnesses as to the meaning or intent of the clause. None of that is relevant to the determination I am asked to make and I disregard it. Equally the evidence of Mr Wilson as to discussions about how claims under cl 23(a)(i) should be made through the payroll system do not assist. There is no doubt the subclause provides an entitlement and therefore there must be a means of making a claim. It does not, however, say anything about the circumstances in which a claim must be paid. Nor does an agreement to remove certain words from a PowerPoint presentation about a "Recall to Duty Trial".
The evidence of Mr Mclean relates to a completely different industrial instrument. It is not relevant. The evidence of Mr Hatter as to that instrument is also not relevant. Nor is the exchange of correspondence in relation to the HSU dispute between Mr Hatter and Ms Craig, or Mr Hatter's understanding of that correspondence, relevant. The statements made therein can be no more than subjective opinions of the persons concerned. Mr Fraser's evidence related to his understanding of the clause, claims made pursuant to it and the importance of rest and recovery time to paramedics. None of it in my view is admissible to determine the meaning of the subclause but it may have some relevance to the discretion to interpret it and make the recommendation claimed.
The evidence of Mr Purves as to historical practice in the way paramedics worked, particularly in regional stations since 1976 provides evidence of a "mutually known factual matrix" of the kind referred to by Walton J at [17] and of the industry's "customs and working conditions" as referred to by Street J at [18]. The clause was, however, inserted in the Award in 1962 according to the evidence of Ms Botha. An inference is available that the circumstances in existence in 1976 were the same as those prevailing in 1962. I could only ascribe weight to it if there were further supporting material. That support is found in the evidence before the Conciliation Committee in 1981 and 1982 and attached to the statement of Ms Botha [23] .
The evidence would be relevant too if it helped to understand a development which impacts upon the subclause, such as the inclusion of subclause (d) which occurred in 2009, again according to the evidence as to the history of the Award. Unfortunately, for the reasons set out at [25], it is of little utility in this case. I admit the evidence as to the control room records of the circumstances of Mr O'Brien's call out, but do not regard the evidence of Mr Purves as to his awareness of claims or payment experience as relevant.
Mr Goodwin's evidence as to costs was said to be relevant to the public interest to which the Commission is required to have regard in exercising its functions. That may be so if it came to a proposition of absurdity. I do not otherwise regard it as relevant. Assistant Commissioner Vernon's evidence falls largely into the same class as Mr Purves evidence. I treat it accordingly. I admit the evidence of call out procedures and the control room records. The evidence of Ms Huggins as to rostering practices at Griffith station is of peripheral relevance at best but, it seems to me is largely in the same category as Mr Fraser's evidence as to the importance of rest and recovery time.
I admit the evidence of Ms Botha relating to the history of the Award. The evidence of Conciliation Committee hearings, unless it falls into the category of "mutually known facts" or "industry customs and working conditions", appears to me to amount to no more than the subjective view of one side and not necessarily the view of the Committee making the Award.
Subclause (d) was included in the Award for the first time in 2009 as a result of a decision of the Full Bench in Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168. The Award was made following a "Bluescope" process. Notwithstanding a statement in Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 156 at [13], the later Full Bench decision does not have "a summary of the matters attended to" attached to it. The reasons pertaining to 2 such matters are attached but that leaves 19 matters unidentified. Many other matters were resolved by consent of the parties and were contained, it seems, in a Memorandum of Understanding which does not appear to have been tendered or retained with the file. It is impossible therefore to know whether subclause (d) was a consent matter or one resolved by a Full Bench recommendation. Even less is it evident what circumstances were relevant to the resolution of the issue.

Construction

Mr Latham specifically disavowed any ambiguity in the clause. Mr Fox implicitly agreed. Ms Raper's primary submission was that the meaning was plain but in the alternative, if ambiguity existed, the extrinsic material supports the respondent's interpretation.
In my view subcl 23 (a)(i), in the context of the current claim, is to be understood in its immediate context and that is largely informed by subcl 23 (d). I do not overlook the fact that the clause is headed "Employees on Call" and there may be, therefore, a suggestion that the payment provided for in subcl 23 (a)(i) is related to recalls to duty. The heading provides little guidance, however, because:

the second sentence of subcl 23(a)(i) expressly relates to employees not on call; and
the unions' claim is not restricted to telephone calls about recall to duty.

The Ministry submitted, with particular reliance on the plural "calls", that the payment related to work related matters not involving the officer leaving home for a recall to duty. By way of example Ms Raper referred to a scenario where the police are involved in a coronial inquest and require information from an off duty officer. They may call the officer to have a discussion. She submitted that would be covered by the payment in subcl 23 (a)(i). There is no requirement for the officer to leave and attend an emergency but they perform work nevertheless. Some support for that may be seen in subcl 23 (e) which makes provision for officers who reside at their station and, though recalled to duty, are not required to leave the station. It resonates too, in the evidence of Mr Purves as to industry practice in 1976 and the submissions and evidence before the Conciliation Committee in 1981 and 1982 [24] . Those scenarios are sufficient to eliminate any significance in the heading of the clause and perhaps explain why no party placed any reliance on it.
Each of the parties referred to the intent reflected in subclause 23 (a)(iii) that officers would be "free from call" as far as practicable on at least 14 days per roster cycle of 28 days. The notifiers saw it as showing the Award intended that employees should be free from any disturbance and that, in turn, gave weight to the notion that a telephone call from the employer, for any reason, was to be compensated by payment in accordance with subcl 23(a)(i).
Ms Raper submitted that the subclause provided a protection from being required to hold oneself in readiness to respond to a call to return to duty, and the obligation to so, on more than 14 days of the roster cycle. In my view Ms Raper's interpretation is to be preferred. The "call" referred to in subcl 23(a)(iii) is not a telephone call but a requirement to be on call with all the obligations that entails. It accords with the entitlement in the first sentence of subcl 23(d) requiring the employee's agreement to be recalled when not on call.
In this regard I note that subcl 23(a)(iii) was included in the Award for the first time by a variation made in February 1998. From 1962 until 1998 the only reference to "not on call" in cl 23 or its predecessors was in the second sentence of subcl 23(a)(i) or its predecessors. So there is no reason to connect the payment for receiving telephone calls to the intention that officers would be free from call at least 14 days per roster cycle. It is interesting too, that the allowance is not payable to officers on call. The inference is that calls relating to a recall to duty are compensated by the minimum 4 hours at overtime rates and calls unconnected to recall are covered by the on call allowance. Officers not on call who received calls not connected to a recall to duty were compensated by the one hours pay.
The combined effect of subcll 23(b)(i), 23(b)(iii) and 23(d) is that, if an employee not on call is recalled to duty with the employees agreement, the employee is, from the time of tasking, at work and entitled to the same benefits as an employee on call when recalled to duty. The request, by means of a phone call, when accepted, is the moment of "tasking" and the officer is on duty and entitled to payment from that point.
The unions submitted that there is a moment [25] , before acceptance of the recall when the officer is not "at work" and not being paid. I do not find this persuasive. It seems to me the call to enquire whether the officer is prepared to accept a recall, if accepted, is part of the recall. If the officer declines that may be another matter although the history of the clause, as discussed at [31] suggests otherwise.
There are several practical reasons which make the proposition logical and consistent with the other provisions of the Award.
First, subcl 23(d) provides that an officer not on call, if accepting a recall, is to be entitled to the same benefits for the recall as an officer on call, that is, a minimum of 4 hours pay at overtime rates and the benefits of subcll 23 (c), (g) and (h) if those circumstances arise. The unions' construction would have the employee not on call receiving an extra hours pay for receiving and accepting the call which gives that employee a different entitlement to an employee on call. One of the principles of construction is to interpret an award so that its terms operate harmoniously. I do not regard the construction advanced by the unions as resulting in an harmonious operation of the Award's provisions. It contradicts the express terms of subcl 23(d)
Second, the Award, tendered as Attachment A to the first statement of Mr O'Brien, prescribed an amount of $22.40 for the daily on call allowance. A paramedic Year 1 was entitled to $1292.70 and a Paramedic Specialist Year 1 $1489.90 per week or $34.01 and $39.20 per hour respectively. Thus officers required to hold themselves in readiness to respond to a recall would receive considerably less than officers who are not on call for performing the same tasks. The difference seems disproportionate even taking into account the fact that the latter are intended to be "free from call". The comparison is not made from the point of view of an "anteriorly derived notion of what would be fair or just" as Madgwick J cautioned against in Kucks v CSR Limited (1996) 66 IR 182 at 184. Rather it is with a view to giving effect to the general intention of the framers of the instrument. Again, the construction suggested does not appear to be harmonious.
Mr Latham did submit that the on call allowance and the payment for receipt of the telephone call struck an appropriate balance given the different circumstances applying. I have difficulty accepting that, bearing in mind that officers in receipt of the on call allowance are obliged to hold themselves in readiness to respond, and to respond if called. Officers not on call are free to do as they please - including not answering their phones or turning them off. In any event the clear language of subcl 23(d) indicates that officers recalled, whether on call or not on call, are to have the same benefits in respect of the recall. The on call allowance is not a benefit applicable to a recall and is payable whether or not the officer is recalled to duty.
Third, the evidence of Mr Purves [26] provided examples of Station Officers, with residences attached to stations, responding when off duty and not on call, to visits from members of the public. Such visits may result in a recall to duty involving transporting the patient to a hospital. No phone call would be involved. The officer would be entitled to payment for the recall but would not be entitled to payment for receiving a telephone call because none was received. I acknowledge the situation would be unlikely to pertain today because of the centralised call system, but this subclause has not changed in form since it was inserted into the Award in 1962. That anomalous situation may have been encountered if the Award had the meaning for which the unions contend.
The description of the industry and work practices applying when the subclause was inserted, together with the use of the plural to refer to telephone calls, suggests that the payment required by subcl 23(a)(i) was to compensate for the variety of administrative enquiries which an officer off duty and not on call may receive from members of the public, the medical profession, the police or the Ambulance Service not involving or concerning a recall to duty.

Conclusion

It follows that in my view the claim as articulated by Mr Latham and set out at [7] must fail. I decline therefore to make the recommendation sought.
The "s175 Interpretation" sought as part of the APA's articulated remedy, at [5], it seems to me was overtaken by Mr Latham's later statement and therefore not pressed. I do not propose to list all the circumstances in which employees may be entitled to the payment but in my view it is not payable in respect of a telephone call about possible recall to duty. It is intended to cover the miscellany of work related calls that off duty officers, who are not on call, may receive related to the work performed by them when on duty such as the example suggested by Ms Raper at [28]. I would add that, although the plural is used, one such call would in my opinion be sufficient to give rise to an entitlement to the allowance. It would not matter if one or ten such calls were received the entitlement would be the same.

Order

I therefore refuse the application for relief and terminate the dispute proceedings.

Endnotes

As set out in Exhibit 5
Tcpt 16 May 2018 at p 28(9 - 14)
Tcpt 16 May 2018 at p 3(21 - 34)
[2017] NSWIRComm 1057.
[2018] NSWIRComm 1009
(1998) 82 IR 448.
[2003] NSWIRComm 5.
(2004) 135 IR 56.
[2016] FCA 440.
[2008] NSWIRComm 158.
[2017] NSWIRComm 1057.
(2005) 222 CLR 241.
[2018] NSWIRComm 1009.
[2014] FCA 829.
Health Services Union NSW and Ambulance Service of NSW [2017] NSWIRComm 1057 (29 August 2017) at [9]-[16].
AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [114].
Interpretation Act NSW (1987) s 33.
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, see also; Interpretation Act NSW (1987) s 34 (1) (b) (i).
PSA v Secretary of the Treasury [2014] NSWIRComm 23 (14 May 2014)
[2014] NSWIRComm 23, 87 NSWLR 41
Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades v New South Wales Fire Brigade Employees' Union at [44] cited in PSA v Secretary of the Treasury at [126]
[1929] AR (NSW) 498 at 503-4
Especially at Attachment CB 6 in the evidence of Mr Graham at transcript pp 2 - 18 and Mr Bradford at transcript pp 61 - 66 and Attachment CB 7 in the evidence of Mr Odell at transcript pp 4 - 24
Statement of Cassandra Botha: attachment CB 4, transcript pp 6-7 and evidence of Mr Rendall at transcript pp 8 - 15; attachment CB 5, evidence of Mr Barkley at transcript pp 46; attachment CB6, evidence of Mr Graham at transcript pp 2-
It was common ground that such recalls tend to be in emergency situations and the calls are necessarily brief because, if the employee declines the Control Centre needs to move to the next officer as quickly as possible: see Statement of Gary Wilson at par 19 (first dot point); Statement of Steven Fraser at par 7; and Statement of Jamie Vernon at par19
Statement of Bruce Purves at par 11 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: 20 March 2020

At a glance

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Decision date

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Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)

Cited By (2)