Australian Paramedics Association (NSW) v Health Secretary in respect of New South Wales Ambulance

Industrial Relations Commission (NSW)|2024-07-19

DECISION

Before me are two questions to be determined separately and before any further hearing of the dispute which has given rise to the questions.
The Australian Paramedics Association (NSW) (APA) filed a Notification of an Industrial Dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (IR Act) on 29 February 2024, arising from a proposal by the Health Secretary in respect of New South Wales Ambulance (NSWA) to classify persons employed by NSWA as triage clinicians in the Virtual Clinical Care Centre (VCCC) at work levels Paramedic Level 1 and Paramedic Level 2, depending on the employee's training and experience, and to pay them at the rates applicable to those levels as provided for in the NSW Ambulance Paramedics (State) Award 2023 (2023 Award), together with a 'Control Centre Allowance' as set out in cl 14(a) of the 2023 Award.
From September 2021 to date, persons employed by NSWA as triage clinicians in the VCCC have been designated by NSWA as holding the 'position classification' of 'Aeromedical Operations Officer' and such persons have been paid at a rate of pay corresponding with that paid under the 2023 Award and its predecessors, to an Aeromedical Control Centre Officer (ACCO). Under the 2023 Award, ACCOs are classified as Paramedic Level 3, Band 2. Paramedics employed at Level 3 are paid more than Paramedics Levels 1 and 2, even after allowing for the proposed additional payment of the Control Centre Allowance. The APA considers that NSWA proposes to effectively re-classify VCCC triage clinicians in a way that will result in a reduction in their wages, salaries, rates of pay, or conditions of employment which, it contends, is expressly prohibited by the 'no extra claims' clause contained within the 2023 Award.

Background

The determination of the questions ostensibly involves the proper interpretation of cl 51 of the 2023 Award and its application to the facts giving rise to the dispute. As will become clear, it is in fact the proper interpretation of other clauses in the 2023 Award, which ultimately determines the answer to the questions.
While the parties are very much in dispute as to the application of cl 51 to the underlying facts, fortunately a number of the facts giving rise to the dispute are not. Many, although not all, of the key facts were formally agreed in a Statement of Agreed Facts tendered by the APA (SAF), [1] and statements tendered by each party were admitted without objection and without cross examination, save that the parties requested the Commission to be mindful of, and afford appropriate weight to, any expressions of opinion contained within the statements and reserved the right to cross examine the witnesses in the event the dispute continues beyond the determination of the separate questions.
In considering what might be 'relevant background' I have had regard to the principles of interpretation of industrial awards as helpfully and recently summarised by Davis J in New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 at [15]: "(a) The interpretation of an industrial instrument commences with the ordinary meaning of the words used understood in the light of its industrial context and purpose. (b) An overly strict or literal approach to construction of industrial awards is rarely appropriate. It is justifiable to read an award so as to give effect to its evident purposes despite mere inconsistencies or infelicities of expression. Meanings that "avoid inconvenience or injustice may reasonably be strained for." (c) Awards are to be seen as beneficial instruments. A generous construction is to be applied over a strictly literal approach. (d) Regard is to be had to the practical consequences that will flow from a particular construction when interpreting the provisions of an award. (e) Context is of significance in interpretating industrial instruments. However, while purpose, history and industrial context are relevant in construing an award, a narrow or industrially impractical interpretations will be eschewed, the task remains one of interpreting a document based on the objective meaning of its text. In that way, the Court is "not free to give effect to some anteriorly derived notion of what would be fair or just". (f) Relevant context includes firstly the whole of the text of the document but also extends to the circumstances in which the instrument was made and its historical antecedents. Nevertheless, awards are construed objectively where the parties' subjective intentions and beliefs are not relevant. (g) The statutory context in which awards are made includes that the Industrial Relations Commission must make awards to set "fair and reasonable conditions of employment for employees" (s 10 of the Industrial Relations Act 1996 (NSW))."
On the basis that purpose, history and industrial context are relevant in construing an award, I consider the following background facts, taken from the SAF and those parts of the parties' witness statements that are uncontroverted, except where otherwise stated, to be relevant.
The VCCC is a remote-control centre based in Gladesville, NSW. The main function of the VCCC is to conduct secondary triage with a view to connecting low acuity cases called in to Triple Zero (000) with more appropriate care pathways, to avoid unnecessary emergency ambulance responses and reduce the burden on hospital emergency departments. This occurs by the process outlined below. 1. A NSWA Call Taker (Control Centre Assistant) receives a Triple Zero (000) call and performs primary triage. This involves using a computer tool called the Medical Priority Dispatch System/ProQA to classify the patient and allocate a response priority. Call Takers are not located in the VCCC. 2. If primary triage results in the patient being allocated a priority that makes them appropriate for transfer to the VCCC, the incident is automatically transferred to the VCCC Pending Incident Queue. 3. A clinician in the VCCC (VCCC Clinician) reviews the Pending Incident Queue and performs secondary triage. The VCCC Clinician may also review the Statewide Pending Incident Queue to identify cases suitable for secondary triage. 4. A VCCC Clinician performs secondary triage by making a clinical assessment to determine the best treatment and/or disposition option for patients, including whether an alternative care pathway may be appropriate rather than an emergency ambulance response. Alternative care pathways may include referral to an Extended Care Paramedic, Local Health District services, the patient's own General Practitioner, a telehealth service, community, medical or social support services, and/or other transport options. 5. If the secondary triage identifies that an alternative care pathway may be appropriate, the VCCC Clinician discusses options with the patient and connects them with the relevant service provider.
VCCC Clinicians perform these functions by telephone or video.
To carry out their functions, VCCC Clinicians undertake training to support their clinical decision-making, including in the application of the 'Manchester Triage System Telephone Triage and Advice'.
VCCC Clinicians are registered paramedics or registered nurses.
VCCC Clinicians are supported in the performance of their clinical functions by Senior Clinicians, Clinical Nurse Consultants and doctors.
The VCCC also operates the Clinical Advice Line, which provides support and advice to on-road paramedics and volunteers at the point of patient care to support their clinical practice.
The establishment of a virtual care program within NSWA was envisioned as part of the NSWA Strategic Plan 2021-2026. It was initially established however, on an expedited basis, on 13 September 2021, in response to the COVID-19 pandemic, when NSW was in lockdown and NSWA was receiving unprecedented volumes of Triple Zero calls.
When the VCCC was first established, VCCC Clinicians were recruited from employees who were classified as Paramedic Specialist under the Paramedics and Control Centre Officers (State) Award 2021 (2021 Award), particularly Extended Care Paramedics (ECPs). ECPs are specialist clinicians trained to manage presentations ranging from acute injury to chronic and complex care. Their training also includes the management of clinical risk, referral, and patient assessment. According to Hayley Turner, Chief Superintendent, Associate Director of the VCCC, this meant they were able to immediately perform the role of an VCCC Clinician once trained in the technology they would be using in the VCCC.
Because of the rapid stand-up of the VCCC in response to the COVID-19 pandemic, the first VCCC Clinicians appointed were not appointed through a formal recruitment process. Instead, the NSWA Incident Management Team responsible for coordinating NSWA's COVID-19 response sought release of ECPs from their usual positions to work in the VCCC. According to Ms Turner, temporary assignments were offered to these employees pending a more formal recruitment campaign.
A formal expression of interest (EOI) for "Interim VCCC Clinicians" was advertised on 23 December 2021 and closed on 10 January 2022. All VCCC Clinicians who had been temporarily assigned to the VCCC were required to submit an EOI if they wished to continue working in the VCCC.
It is agreed that the persons appointed as VCCC Clinicians via the EOI process and onwards, were appointed "pursuant to the Interim Clinician VCCC position description (PD044301)" (Position Description). Three versions of the Position Descriptions were in evidence, but notably, each one indicated on the first page that the "Position Classification" was "Aeromedical Ops Off" and that the applicable Award was the "Operational Ambulance Officers (State) Award". In fact, an Award of that name had not been in operation since 1 July 2019 when the Paramedics and Control Centre Officers (State) Award 2019 (made on 6 August 2019) rescinded and replaced the Operational Ambulance (State) Award published 14 December 2018. At the time the EOI was published the applicable Award was the Paramedics and Control Centre Officers (State) Award 2021 (2021 Award) and it is not disputed that the 'Position Classification' that had been described as 'Aeromedical Operations Officer' in earlier Awards, equated 'Aeromedical Control Centre Officer' in the 2021 Award and in all subsequent Awards.
According to Ms Turner, whose evidence in this respect was not disputed, VCCC Clinicians who were successful in the EOI process were appointed to the role on a temporary basis for up to 12 months, with possible extension. This is borne out by sample redacted letters offering the role to candidates, which were tendered in evidence. Each letter stipulated a finite period of employment of varying lengths, but less than 12 months, and included the following paragraph: "As this is a temporary appointment you will be provided with one months' notice if the appointment is to cease prior to this date [being the date identified in the letter as the last day of the appointment]."
According to Ms Turner, after the EOI process in December 2021, VCCC Clinicians continued to be appointed on a temporary basis, in three ways: 1. through extensions of the original temporary appointments made following the December 2021 EOI process; 2. through informal expressions of interest, such as nomination by Sector management teams; an approach by VCCC team members; and submission of expressions of interest in being trained in VCCC operations either to VCCC management or local Sector managers. VCCC Clinicians recruited through this process were appointed on a roster-by-roster basis for nine-week periods. Formal letters of offer / appointment were not provided for these appointments. Apparently, these appointments are recorded in the NSWA 'Stafflink' employment system as 'Assignments' for a specified nine week period; and 3. as the demand for VCCC activities grew, NSWA also accepted some Paramedic Specialists who met the Position Description requirements and required alternate duties due to injury or pregnancy. Some were appointed to the VCCC Clinician role on a roster-by-roster basis for nine-week periods, while others continued to be funded by their Sector or through the Workers Compensation process.
According to Ms Turner, since July 2023, all VCCC Clinician appointments have been made on a roster-by-roster basis for nine-week periods, initially in anticipation of finalising the consultation, establishment, and recruitment of permanent roles, and subsequently pending the resolution of this dispute and the establishment of the "permanent VCCC". This includes those appointed through the December 2021 EOI process after their 12-month appointments or extensions of these appointments expired. According to Ms Turner, VCCC Clinicians continue to nominate if they would like to remain for another roster period as roster preparations commence every nine weeks. According to Ms Turner, this is done by the VCCC Clinician scanning a QR code, which takes them to a preference form that they fill out, including their end date, if they would prefer to stay at the VCCC, what their substantive position is and what their roster preference is. An email reminder is sent out by the Roster Coordinator every nine weeks to remind VCCC Clinicians to fill out this preference form and, if for some reason they have not completed it, they are personally reminded to do so.
The APA tendered in evidence a copy of the roster preference form. Contrary to Ms Turner's evidence all the form asks is the employee's name, whether they have annual leave scheduled for the roster period and the dates of that leave and their role within the VCCC. Nevertheless, the HSU read a statement of Asaeli Williams [2] , a full-time VCCC Clinician, who referred to her position as being "temporary" and that she was "seconded on a roster-by-roster basis" and that a roster "goes for 9 weeks". I am satisfied that the position of VCCC Clinician (aka VCCC Triage Clinician) from its inception to the present time, has only been filled by way of temporary, rather than permanent, appointments.
It is not in dispute that the VCCC Triage Clinicians have received the ACCO rate of pay as prescribed initially under the 2021 Award; from 1 July 2022, under the Paramedics and Control Centre Officers (State) Award 2022 (2022 Award); and from 1 July 2023, under the 2023 Award. However, according to Ms Turner, from information provided to her from unidentified persons within NSWA Recruitment, the "Interim Clinician VCCC position" "was never formally graded". According to Ms Turner, the first time a VCCC Clinician position was "graded" was in around February 2024, which, as will be made clear below, was several months after NSWA had decided to assign the position to either Paramedic Level 1 or Level 2.
It is not disputed that the work of an ACCO is different from the work of a VCCC Triage Clinician: ACCOs are responsible for the deployment of NSWA fixed-wing aeromedical resources, while VCCC triage Clinicians are responsible for secondary triage of triple zero callers and the provision of clinical advice to support on-road paramedics and volunteers (not the deployment of NSWA resources) and do not work with aeromedical resources at all. ACCOs are based in a different control centre from the VCCC.
According to Ms Turner, in "June 2022, the NSW Government announced funding to permanently establish the VCCC over four years as part of the 'Strategic Workforce Infrastructure Team' (SWIFT) investment …". [3] This announcement was followed by a period of planning within NSWA to determine how the funding would be most effectively utilised to establish the "permanent VCCC", including workforce distribution, functions and operations.
According to Ms Turner, some key positions were implemented shortly after the announcement, including Clinical Nurse Consultants (which were advertised and recruited on a 12-month temporary basis, commencing 15 October 2022), and some VCCC Triage Clinician Registered Nurses, who commenced on 19 June 2023.
It is agreed that in November 2023, NSWA began consultation with the APA, HSU, the NSW Nurses and Midwives' Association and the Australian Salaried Medical Officers Federation of NSW (together, the "Unions") in relation to "changes" to the VCCC. According to Ms Turner the consultation related to the establishment of the "permanent VCCC". The APA and the HSU however, took issue with NSWA's evidence and submissions to the effect that the VCCC was initially established only as a temporary institution, whose ongoing existence was not clear until June 2022 at the earliest. They maintained, and led some documentary evidence that supported their view, that from its inception in September 2021, the VCCC was a 'permanent' institution within NSWA.
I agree that the evidence shows that from at least mid-2021 NSWA intended to establish a permanent VCCC. The pandemic resulted in the VCCC being established with some haste in September 2021 and the decision to appoint paramedics as VCCC Clinicians on a temporary basis and at a pay-rate higher than their substantive positions, an expedient one. Nevertheless, from the moment it was established, given it had been part of the NSWA Strategic Plan 2021-2026, it was intended to be a permanent institution within NSWA.
Ms Turner gave evidence that NSWA has continued to employ VCCC Clinicians on a temporary basis pending "finalising the consultation, establishment, and recruitment of permanent roles … the resolution of this dispute and the establishment of the permanent VCCC …." [4] While I certainly accept that the decision to continue to employ VCCC Clinicians on a temporary rather than a permanent basis has been due to NSWA's need to work out the number and nature of the roles required to permanently staff the VCCC, particularly in light of available funding, and the fact that the roles have evolved considerably over the short life of the VCCC, I do not accept that the VCCC itself is or was intended to be, temporary.
NSWA's consultation with the Unions, which commenced in November 2023, included a proposal to recruit employees to permanent positions of VCCC Triage Clinician Paramedic and VCCC Triage Clinician Paramedic Specialist, which would be assigned respectively to the Paramedic and Paramedic Specialist classifications under cl 5 of the 2022 Award, together with payment of the Control Centre Allowance as set out in Table 2B in s 8 of the 2022 Award. The proposal would result in there being a total of 37 permanent VCCC Triage Clinician positions over four years.
According to Ms Turner, the proposal "was based on the learnings and experience from the work of the [VCCC] as to the appropriate scope and functions of the VCCC Triage Clinician role and with the context of the appropriate systems, policies and processes - including a clinical and operational support and supervision structure - to enable the VCCC to fulfil its functions most effectively." [5]
At the meeting held with the Unions on 3 November 2023, NSWA: 1. informed the Unions of the above proposal, including that the VCCC Triage Clinician roles would be remunerated as Paramedic or Paramedic Specialist and also be paid the Control Centre Allowance; and 2. invited the Unions to provide feedback on the proposal.
On 7 November 2023, management of the VCCC held a meeting with the staff then employed in the VCCC in which they: 1. informed staff of the matters set out in paragraph [38] above; and 2. invited staff to provide feedback on the proposal.
The Unions and staff provided their feedback on the proposal to NSW Ambulance by 17 November 2023.
On 17 December 2023, NSWA advised the Unions and staff that they would be providing them with a response to their feedback in the new year.
Meanwhile, after many years of consultation and disputation regarding appropriate remuneration for employees covered by the percussors to the 2023 Award, in December 2023 a deal was reached between the APA, the HSU and NSWA which ultimately resulted in the making of the 2023 Award and the NSW Ambulance Control Centre Officers (State) Award 2023, by consent. [6] The agreement was recorded in a Memorandum of Understanding dated 20 December 2023 (MOU). It suffices to record at this point that the two new Awards involved significant reform, in particular, in relation to the classification of employees and their rates of remuneration.
On the day the MOU was signed, but prior to it being signed, Bree Jacobs, Industrial Officer of the APA, and Olivia Forsyth-Sells, Associate Director, Workplace Relations of the Ministry of Health, engaged in email correspondence regarding the failure of the parties to complete negotiations around, amongst other outstanding classification issues, the appropriate classification for VCCC Clinicians with the proposed new Award. Ms Jacob's email to Ms Forsyth-Sells, sent at 1:44pm on 20 December 2023, relevantly read as follows: "… There are three known positions where there are current negotiations in relation to their appropriate classification under the Award, we are unsure at this stage whether they may result in the need for arbitration in the IRC. These are: 1. RLTC 2. Duty Aeromedical Manager (DAM) 3. VCCC Clinician We wanted to ensure that leave was reserved for these matters, especially because the Award runs for another 3.5 years. …"
Ms Forsyth-Sells responded by email sent on 3:21pm on 20 December 2023 which relevantly read as follows: "Hi Bree Regarding the email below, Health is not permitted to have a leave reserved agreement per clause 6.8 of the attached NSW Government Fair Pay and Bargaining Policy 2023. (link for reference) I note that you raise these classifications informally in our discussions and we understood that it was the intention of the APA on to put this on the record. We also relevantly have drafted the award to conceive of discussions regarding existing and future classifications and their position in the work levels. Hence clause 5(n) of the proposed award. This deliberately allows the parties to work collaboratively to resolve any issues about the assignment of classification to work levels in the award during the term of the award. …" (Errors in original)
Later on 20 December 2023, the MOU was signed. The MOU contains the following relevant provisions: 1. Introduction a . This Memorandum of Understanding (MOU) between the Health Secretary and the Australian Paramedics Association (NSW) (the Parties) sets out the understanding and agreement of the Parties in relation to the rates of pay for employees covered by the Paramedics and Control Centre Officers (State) Award 2022 (the PCCO Award) for the period 1 July 2023 to 30 June 2027. b. The Parties agree to comply with the terms of this MOU. c. …. d . This MOU is designed to provide the Parties with certainty of outcomes for the period of the MOU. e . There shall be no further salary claims, including a work value claim, made during the term of this MOU; that is, from 15 December 2023 to 30 June 2027, except as permitted under Clause 3(c) of this MOU . f. ... g. … h. … 2. Award applications a. As soon as practicable, the Parties will file and consent to an application for a new 3-year PCCO Award with a nominal period of 1 July 2023 to 30 June 2026. This application will incorporate the increases to remuneration and terms as set out in columns 6 (Paramedic Professional Pay Uplift Tranche 1) to 11 (New base after 1 July 2025 uplift) of Attachment A to this MOU. (the 3-year PCCO Award) The Parties will file and consent to an application to vary the 3-year PCCO Award before the nominal expiry of the 3-year PCCO Award, on 30 June 2026. This application will incorporate the increases to remuneration and terms as set out in columns 12 (Fourth pay adjustment) and 13 (New base after 1 July 2026 uplift) of Attachment A to this MOU. (the 12-month PCCO Award variation) b. The Parties acknowledge that not all classifications under the PCCO Award are accounted for in Attachment A. Despite this, the Parties agree that the 3-year PCCO Award and 12-month PCCO Award variation will include relevant increases for all outstanding clinical classifications that have been omitted in Attachment A (for example, the Critical Care Paramedic Team Leader, and Paramedic Duty Control Centre Officer). c. … 3. No extra claims a. The Parties agree that, other than as provided for in the Industrial Relations Act 1996, during the term of this MOU, there will be no extra wage claims or demands made in respect of the employees covered by the Australian Paramedics Association (NSW) and employed under the PCCO Award, and further that no proceedings, claims or demands concerning wages in respect of those employees will be instituted before the Commission or any other arbitral tribunal. b. Where the Parties agree on other changes to the PCCO Award they will, by consent, seek a variation to that award. c. For the avoidance of doubt, the Parties may during the term of this MOU discuss additional opportunities for system improvements and if agreed, a further pay increase may be provided to recognise the contribution of employees to those system improvements. d . There will be a No Extra Claims clause to this effect contained in the 3-year PCCO Award and the 12-month PCCO Award variation.
Annexure A to the MOU contained a table with 12 columns. The first column of Annexure A appears as follows: Classification Trainee Paramedic Paramedic Intern Paramedic Year 1 Paramedic Year 2 Paramedic Year 3 Paramedic Year 4 Paramedic Year 5 Paramedic Year 6 Paramedic Specialist year 1 Paramedic Specialist year 2 Paramedic Specialist year3 Critical Care Paramedic Critical Care Paramedic ACCO Clinical Training Officer Clinical/Paramedic Educator Clinical/Paramedic Educator Team Leader Station Manager District Manager

The following 10 columns set out the percentage increase and resulting salaries payable on 1 July 2023, 1 January 2024, 1 January 2025, 1 July 2025 and 1 July 2026, for each of the identified 'classifications'. The final column sets out the total increase in remuneration over the four years, as a percentage.
On 21 December 2023, the 2023 Award was made by the Industrial Relations Commission by consent. The nominal term of the 2023 Award is 1 July 2023 to 30 June 2026.
On 13 February 2024 a further meeting was held between NSWA and the Unions regarding the plans for the VCCC. According to Ms Turner, the Unions were advised during the meeting that: 1. NSWA intended to establish the proposed "permanent VCCC" within two weeks; 2. NSWA would commence recruitment activity in the week following establishment of the positions - permanently recruiting Paramedic Specialists (Paramedic Level 2), and temporarily recruiting paramedics (Paramedic Level 1) for a 12-month period, to allow them an opportunity to work in the VCCC before considering applying for permanent roles in 12 months' time; and 3. that the payment of the ACCO rate of pay to "Interim VCCC Clinicians" would cease in the near future, and current "Interim VCCC Clinicians" would be given the option to stay working in the VCCC pending the permanent recruitment of Paramedic Specialists (Paramedic Level 2) or return to their substantive position on the road.
Ms Jacobs, in her statement in reply dated 5 July 2024, disputed that any reference was made to the consultation being about the establishment of the "permanent VCCC". According to Ms Jacobs, "NSWA representatives at the 13 February 2024 meeting advised that the reason for the consultation was that the VCCC was getting a significant enhancement from the SWIFT funding and that they wanted to consult with us on proposed distribution of the workforce as well as a proposed restructure." [7]
At the 13 February meeting, NSWA provided the Unions with copies of draft role descriptions of the proposed VCCC Triage Clinician (Paramedic) and VCCC Triage Clinician (Paramedic Specialist) positions, which recorded their "Classification/Grade/Band" as "Paramedic" and "Paramedic Specialist" respectively. Sometime thereafter, the role descriptions were further amended to reflect the NSW Public Sector Capability Framework.
I understand from Ms Turner's evidence that the preparation of these role descriptions, in early 2024, was the first time the VCCC Triage Clinician roles were "graded" although there is no evidence as to what this actually entailed. While Ms Turner gave evidence as to what the VCCC Clinician role currently entails and how the role has evolved since it was first established in 2021, there was no evidence to explain how and why NSWA determined that the VCCC Triage Clinician roles should be assigned the classifications of Paramedic Level 1 and Paramedic Level 2.
As noted above, on 29 February 2024 the APA notified a dispute pursuant to s 130 of the IR Act to the Commission.

Relevant Provisions of the 2023 Award

The following clauses of the 2023 Award are relevant to the determination of the separate questions. SECTION 1 - GENERAL … 4. Definitions … "Employee" means a person employed in a classification set out in clause 5 of this Award. … 5. Work Levels Employees will be classified according to the Work Levels set out below. Paramedic Work Levels The Paramedic Work Levels set out in subclauses (a) to (g) below [8] are intended to encompass employees who are, or are training with the employer to be, registered paramedics, other than those appointed to management roles. (a) Paramedic - Entry Level (i) Paramedic - Entry Level means a person employed in or in connection with the provision of ambulance services who is enrolled in an approved traineeship, graduate or internship program (however described) required by the employer. (ii) Positions within Paramedic - Entry Level may include (but are not limited to): (1) Trainee Paramedic means an employee who is undertaking the necessary and relevant training and work experience as determined by the employer to become a Paramedic Intern and who is appointed to an approved Trainee Paramedic position. (2) Paramedic Intern means a registered paramedic who is undertaking the necessary and relevant training and work experience as determined by the employer to complete a required internship program and who is appointed to an approved Paramedic Intern position. (3) Paramedic Intern means an employee who has successfully completed the relevant training and work experience as determined by the employer to progress to the second year of the Post Employment Tertiary Pathway program. (b) Paramedic - Level 1 (i) Paramedic - Level 1 means a person employed in or in connection with the provision of paramedicine or ambulance services who is a registered paramedic and otherwise meets the requirements of and is appointed to a Paramedic - Level 1 position as determined by the employer. (ii) Positions within Paramedic - Level 1 may include (but are not limited to): (1) Paramedic means an employee who is a registered paramedic and has successfully completed the necessary and relevant training and work experience as determined by the employer to become a Paramedic and who is appointed to an approved Paramedic position. (c) Paramedic - Level 2 (i) Paramedic - Level 2 means a person who meets the requirements of Paramedic - Level 1 and, in addition, has completed a specialist qualification and/or training and/or acquired specialist experience in an area of specialty as determined by the employer and otherwise meets the requirements of and is appointed to a Paramedic - Level 2 position as determined by the employer. (ii) Positions within Paramedic - Level 2 may include (but are not limited to): (1) Paramedic Specialist means an employee who is a registered paramedic and who has successfully completed the requirements to be a Paramedic and who has completed the necessary and relevant training and work experience as determined by the employer to become a Paramedic Specialist. Paramedic Specialist will include: (A) Intensive Care Paramedic means an employee who is a registered paramedic and who has completed the necessary and relevant training and work experience as determined by the employer to become a Paramedic Specialist - Intensive Care Paramedic and who is appointed to an approved Intensive Care Paramedic position. (B) Extended Care Paramedic means an employee who is a registered paramedic and who has completed the necessary and relevant training and work experience as determined by the employer to become a Paramedic Specialist - Extended Care Paramedic and who is appointed to an approved Extended Care Paramedic position. (d) Paramedic - Level 3 (i) Paramedic - Level 3 means a person who meets the requirements of Paramedic - Level 2 and, in addition, is employed in connection with aeromedical operations and otherwise meets the requirements of and is appointed to a Paramedic - Level 3 position as determined by the employer. (ii) Band 1 Positions within Paramedic - Level 3 may include (but are not limited to): (1) Critical Care Paramedic (Aeromedical) means an employee who is a registered paramedic and who has completed the necessary and relevant training and work experience as a Paramedic Specialist as determined by the employer to be a Critical Care Paramedic (Aeromedical) and who is appointed to an approved Critical Care Paramedic (Aeromedical) position or is working as an independent Critical Care Paramedic (Aeromedical) on a Critical Care Paramedic (Aeromedical) roster. (iii) Band 2 Positions within Paramedic - Level 3 may include (but are not limited to): (1) Aeromedical Control Centre Officer means an employee who has successfully completed the requirements for and is appointed to an Aeromedical Control Centre Officer position identified as such by the employer. - need to reflect level 1 minimum qualifications. (iv) Band 3 Positions withing Paramedic - Level 3 may include (but are not limited to): (1) Critical Care Paramedic (Aeromedical) Team Leader means an employee who has completed the requirements for a Critical Care Paramedic (Aeromedical) and who has successfully completed the requirements for and is appointed to a Critical Care Paramedic (Aeromedical) Team Leader position identified as such by the Service. Critical Care Paramedic (Aeromedical) Team Leaders are not entitled to the Technical Operations Allowance which is set out in Item 1 of Table 2B - Paramedic Allowances of Section 8, Monetary Rates, of this Award. Critical Care Paramedic (Aeromedical) Team Leaders are not entitled to the Clinical Specialist Allowance which is set out in Item 1 of Table 2A - Management Allowances of Section 8, Monetary Rates, of this Award. (e) Paramedic - Level 4 … (h) For the avoidance of doubt, employees employed under this Award are eligible to be permanently appointed to perform Control Centre or other functions. Manager Work Levels The Manager Work Levels set out in subclauses (i) to (l) below [9] are intended to encompass employees who are registered paramedics and appointed to management roles. … Other matters (m) … (n) The creation and/ or assignment of a classification to a work level in this Award must be done by genuine consultation between the parties with a mind to achieve agreement. Should agreement not be achieved either party may elect to refer the matter to the Industrial Relations Commission in line with the provisions of clause 47 of this Award. For the avoidance of doubt, in the event a dispute relating to Clause 5 of this award is not resolved in conciliation, the employer bears the onus to prove that the change of classification is required. 6. Introduction of Change Any proposal that will significantly affect employees covered by the Award will be the subject of genuine consultation between the parties. Should such a change lead to an expanded scope of practice for any classification or group of employees covered by this Award, the parties agree to discuss the impact of this on the classification structure. SECTION 2 - EMPLOYMENT CONDITIONS … 9. Appointment of Officers (a) All employees will be appointed on probation for a period of 12 months from the date of their appointment or re-appointment to NSW Ambulance. Where an employee has not met the required standards by the end of this period and it is not unreasonably onerous for the employee, but otherwise in the employer's discretion, the employer may extend an employee's probation by a period determined by the employer. (b) An employee engaged under this Award shall be engaged as a permanent full-time, permanent part-time, temporary full-time, temporary part-time, or casual. … (f) Temporary Employee (i) A temporary employee is engaged for a continuous fixed period of time. The duties may include the provision of relief for permanent employees, conduct of specific projects or the provision of services which are not recurrent in nature. (ii) A temporary employee may be full-time or part-time. (iii) A temporary employee shall be paid for the number of hours worked each week on an hourly rate calculated at the same hourly rate as prescribed for a full-time employee in the same classification plus 10% loading. The loading shall not apply if: (1) The period of employment extends beyond 13 weeks; and (2) The employer and the employee agree, during the 13 weeks, that the employee will be employed on a permanent basis. (iv) A temporary employee shall be entitled to a minimum payment of two hours for each start. Time worked up to the rostered daily ordinary hours of work prescribed for a majority of the full-time employees employed on that shift in the station, unit or section concerned shall not be regarded as overtime but an extension of the contract hours for that day and shall be paid at the ordinary rate of pay. (v) Temporary employees will be required to undertake and successfully complete all the requirements applicable to permanent full-time employees as defined in clause 5, Work Levels. … SECTION 3 - WAGES AND MONETARY ENTITLEMENTS 11. Wages (a) Employees shall not be paid less than the minimum wages for their classification as set out in Table 1A - Wages from 1 July 2023, Table 1B - Clinical Staff Wages from 1 January 2024 or Table 1C - Management Staff Wages of Section 8, Monetary Rates. (b) This clause is subject to the arrangements for existing employees set out in clause 49, Transitional Provisions. … … SECTION 7 - AWARD PARAMETERS … 49. Transitional Provisions (a) Except in so far as altered expressly or by necessary implication, nothing in this Award shall in itself be deemed, or be construed to reduce the wages of any employee at the date of the commencement of this Award. (b) Employees who are employed as of 1 January 2024 will be classified at the Work Level and/or paid at the pay point set out in Section 9 - Transition of classifications for their classification. (c) If the transition set out in subclause (b) above would lead to a reduction in an employee's salary, the employee is to continue to be paid their existing salary until the salary to which they would otherwise be entitled under this Award exceeds their existing salary. (d) Employees who as at 1 January 2024 are employed under the classification of Ambulance Control Centre Officer or Ambulance Control Centre Officer - Paramedic and Paramedic Specialist will now be employed under the respective classifications of Paramedic Level 1 or Paramedic Level 2 whichever so applies. … 51. No Extra Claims Other than as provided for in the Industrial Relations Act 1996, there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2026 by a party to this Award. For the avoidance of doubt, the Parties may, during the term of this Award, discuss additional opportunities for system improvements and, if agreed, a further pay increase may be provided to recognise the contribution of employees to those system improvements. 52. Area, Incidence and Duration (a) This Award rescinds and replaces the Paramedics and Control Centre Officers (State) Award 2022 published 23 December 2022 (Vol. 393 IG Pg. 952), and all variations thereof. (b) This Award shall apply to all employees (as defined in clause 5 [10] of this Award), excluding those located in the County of Yancowinna, and to the employer in respect of those employees. (c) This Award takes effect from 1 July 2023 and shall remain in force for a period of three years. The rates in section 8 of this Award will apply from the first full pay period on or after (ffppoa) 1 July 2023. SECTION 8 - MONETARY RATES (a) Pay rates and allowances for the period from 1 July 2023 until the commencement of the first full pay period on or after (ffppoa) 1 July 2023 shall be the equivalent rates and allowances contained in the Paramedics and Control Centre Officers (State) Award 2022 as at 30 June 2023. (b) The parties acknowledge and agree that: (i) the increases in wages and other conditions in this Award incorporate all increases in work value and any gains in productivity and/or efficiency since the last work value assessment for employees covered by this Award up until the date of the commencement of this Award (1 July 2023); and (ii) the wages and other conditions in this Award reflect the work value of all employees covered by this Award up until the date of commencement of this Award. SECTION 9 - TRANSITIONAL ARRANGEMENTS Current Classification New Work Level from 1 Jan 2024 Classification Clinical level Band Increment Trainee Paramedic One Salary Rate Trainee Paramedic Entry 1 1 Paramedic Intern Year 1 Paramedic Intern Entry 1 2 Year 2 Paramedic Intern Entry 1 2 Paramedic Year 1 Paramedic 1 1 1 Year 2 Paramedic 1 1 2-6 (based off years of experience) Paramedic Specialist Year 1 Paramedic Specialist 2 1 1 Year 2 Paramedic Specialist 2 1 2 Year 3 Paramedic Specialist 2 1 3 Critical Care Paramedic (Aeromedical) Year 1 Critical Care Paramedic (aeromedical) 3 1 1 Year 2 Critical Care Paramedic (aeromedical) 3 1 2 Critical Care Paramedic (Aeromedical) Team Leader Critical Care Paramedic (Aeromedical) Team Leader 3 3 1 Clinical Training Officer One Salary Rate Clinical training officer 4 1 1 Clinical / Paramedic Educator Year 1 Paramedic Educator 4 2 1 Year 2 Paramedic Educator 4 2 2 Ambulance Control Centre Paramedic Year 1 Paramedic 1 1 1 Year 2 Paramedic 1 1 2-6 (based off years of experience) Ambulance Control Centre Paramedic Specialist Year 1 Paramedic Specialist 2 1 1 Year 2 Paramedic Specialist 2 1 2 Year 3 Paramedic Specialist 2 1 3 Aeromedical Control Centre Officer One Salary Rate Aeromedical Control Centre Officer 3 2 1 Management level Classification Duty Control Centre Officer - Paramedic One Salary Rate 2 Duty Control Centre Officer - Paramedic Senior Control Centre Officer One Salary Rate 3 Senior Control Centre Officer

Team Leader One Salary Rate 1 Team Leader Station Manager One Salary Rate 2 Station Manager District Manager One Salary Rate 3 District Manager

The variation to the 2023 Award proposed by the APA in the event the answer to the first question is 'no', is the insertion of the following sub-clause after clause 5(d)(iii)(1): "(2) Virtual Clinical Care Centre Triage Clinician means an employee who has successfully completed the requirements for an is appointed to a Virtual Clinical Care Centre Triage Clinician position identified as such by the employer. - need to reflect level 1 minimum qualifications."

The APA's Submissions

The APA submitted that the first question should be answered 'yes' and the second question should be answered 'no'.
The APA's submissions, as set out in the written Submissions of the APA filed on 30 May 2024 (APAS), and the written Reply Submissions of the APA filed on 8 July 2024 (APARS) and as articulated in oral submissions, may be summarised as follows.
The APA submitted that persons employed as a VCCC Triage Clinician have been classified under each of the applicable Awards as an ACCO and were entitled to and as a matter of fact were paid, the salary of and provided the terms and conditions of employment applicable to, an ACCO. That the employees were employed on a temporary basis in that position does not matter for the purposes of identifying the appropriate classification: the classification structure does not relevantly distinguish between full-time, part-time, temporary or casual employees, and the Award has always applied to each type of employee. [11]
The 2023 Award provided for a transitional scheme for movement of existing employees, including those employed as VCCC Triage Clinicians, to the new classification structure. [12] Pursuant to that scheme, officers who were employed as of 1 January 2024 and who were classified as ACCOs under the precursor Awards, were to be classified at the work level Paramedic Level 3, Band 2, Increment 1, as set out in Section 9 of the 2023 Award.
The APA submitted that the transitional provisions reflected in cl 49 and Section 9, not only preserved the wages of existing employees as at 1 January 2024, but "also provides the relationship between the "appointment" based classification structure under the 2022 Award and the Work Level based classification structure in the 2023 Award, so as to enable employees … to meet the definition of "employee" in cl 4 of the 2023 Award from its outset and thereby be covered by the retrospectively operative 2023 Award from its commencement on 1 July 2023 (ie from a time when cl 5 did not exist). … Section 9 did not only operate at the level of employees. It must also operate at the level of classifications (not "positions" … from 1 July 2023, lest there by no "employees" as defined in cl 4, and no-one captured within cl 52(b)." [13]
According to the APA, cl 5(n) of the 2023 Award is designed to deal with a situation where there is a desire to create a new "classification" and either the creation of the "classification" and its assignment to a work level are not agreed; or the creation of the "classification" is agreed, but the assignment of the classification to a work level is not agreed. [14] A "claim or demand for the creation of a new classification and/or its assignment into a Work Level, as contemplated by cl 5(n), would not be a "further claim/demand" for "extra or reduced … conditions of employment" (cl 51). A claim to reassign a classification or position referred to in cl 5 to a different Work Level (or even Band within the same Work Level) would, however, be a "further claim/demand" in the relevant sense (and in any event would require variation under s 17 of the IR Act to be given effect)." [15]
According to the APA, cl 5(n) of the 2023 Award "has no work to do in the present context as what is being contemplated is not the creation of a new classification, nor the assignment of any new classification to a work level in the Award." [16] What the APA says is being contemplated is a change to the classification of employees appointed as VCCC Triage Clinicians. [17]
The APA submitted that there can be no sensible contention that employees appointed as VCCC Clinicians are not covered by the Award [18] , and on any view of it, NSWA's proposal amounts to a claim/demand that would reduce wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the 2023 Award and for a position covered by the Award, and as such "is clearly contrary to [the] solemn commitment given in cl 51 of the 2023 Award." [19]
The APA accepted that a 'no extra claims clause' such as cl 51 does not oust the Commission's power to vary an award under s 17(1) of the IR Act, however it submitted, by reference to numerous authorities, including Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209; 181 IR 245 (Crown Employees Salaries and Conditions Award), that it will only be in "the most exceptional of circumstances" that the Commission would vary or replace an award during its nominal term where the parties have committed to make ' no extra claims' and the proposed variation is contested.
The APA pointed out that cl 51 of the 2023 Award was not in "the traditional form" (at referred to by President Wright J in Re Corrections Health Service Nurses' (State) Award [1999] NSWIRComm 123; 90 IR 235 at 243) being, according to the APA, a clause binding the union and/or workers from making an "extra claim", "but rather purports to constrain both "claims/demands … for extra or reduced wages, salaries, rates of pay …", and provides an exception for "a further pay increase" by consent ("agreed") arising from "systems improvements"". [20] In these circumstances, the APA submitted that: "It is clear the parties themselves gave consideration to, and deliberately crafted the form in which, the commitments in cl 51 should be framed. The parties have agreed a no extra claims commitment in clear terms, binding on both the Respondent, the unions and the workers, in the face of a dispute about VCCC clinician classification extant at the time the Award was made, and provided a specific 'carve out' in the operation of the No Extra Claims commitment for "agreed" systems improvements that may result in salary increases. It cannot be sensibly argued that the reclassification in the context of a restructure in the operation of the VCCC is a "system improvement", and even it if were, the 'carve out' from the no extra claims commitment does not contemplate a reduction ln salaries." [21]
I interpolate at this juncture that the "traditional form" of 'no extra claims' clauses referred to by Wright J in Re Corrections Health Service Nurses' (State) Award was in fact an undertaking given by the relevant union that it would not, during the term of the award, "pursue any extra claims, award or overaward, except where consistent with the current wage-fixation principles." [22] (My emphasis). In other words it was not a blanket undertaking not to make any claim and it also operated to bind the union to adherence to the wage fixing principles. It seems that over time such clauses have become terms of the Award, rather than an undertaking given by a party, and have purported to restrict the making of any 'extra claim' during the term of the award, rather than merely restricting the making of claims to those that meet the requirements of the current wage fixing principles.
The APA's alternative position, in the event the answer to the first question is 'no', is for the 2023 Award to be varied "to confirm that the appropriate classification under the 2023 Award for paramedics and specialist paramedics appointed to the position of VCCC Clinician, is that of an ACCO." [23] The APA contends that such a variation would not constitute an extra claim within the meaning of cl 51 of the 2023 Award because "in light of the conditions of employment that currently apply to employees appointed as an Interim Clinician VCCC, their inclusion in cl 5 in the form claimed does no more and no less than enshrine the existing conditions of employment within the 2023 Award." [24]
At APARS [37] the APA pointed out its alternate proposal was also consistent with cl 5(n) which allows for the assignment of a new classification to an existing work level, stating: "The APAs (sic) proposal plainly does not seek to create a new Work Level, but to create a new classification and assign it to an existing Work Level, namely Paramedic - Level 3…" It seems to me that that this submission was somewhat at odds with its submission that its alternate proposal was not an 'extra claim' because, in essence, VCCC Triage Clinicians were already classified within work level Paramedic Level 3.

The HSU's Submissions

The HSU, in its written Intervenor Submissions filed on 19 June 2024 (HSUS), essentially adopted the submissions of the APA. It also submitted that the fact that the VCCC Triage Clinicians were appointed on a temporary basis "is not of relevance to the fixation of a position to a classification under the Award. This is because it is the position itself that is fixed to the relevant work level/clinical level/classification, not the specific employee." [25]
The HSU also submitted that the fact that VCCC Clinicians were not in fact ACCOs, was irrelevant as the descriptor of an ACCO in cl 5(d)(iii)(1) is someone who is "identified as such by the employer". In other words: "When NSWA created and put into effect the VCCC Clinician position, it essentially determined that a VCCC Clinician is an ACCO for the purposes of the Award. As such, VCCC Clinicians are (for the purposes of the Award) ACCOs who have successfully completed the requirements for and is appointed to an ACCO position identified by the employer." [26]
The HSU submitted that the mismatch between the Award classification title and the position title (i.e. ACCO vs VCCC Clinician), "is reflective of a broader practice that the employer engages in where the NSWA job title does not match the classification name contained in the Award." [27] In support of this submission the HSU referred to the evidence of Stuart Hatter, HSU Divisional Secretary to the effect that: 1. the Team Leader classification contained in clause 5 (i)(ii)(1) of the Award (also known as Manager - Level 1 in the 2023 Award), is referred to as a Station Officer by NSWA in practice; 2. the Station Manager classification contained in clause 5 (j)(ii)(1) of the Award (also known as Manager - Level 2 in the 2023 Award), is referred to as a Deployments Officer by NSWA in practice; 3. the District Manager classification contained in clause 5 (l)(ii)(1) of the Award (also known as Manager - Level 3 in the 2023 Award), is referred to as a Duty Operations Manager by NSWA in practice. [28]
The role descriptions for these positions were annexed to Mr Hatter's statement. I note that each of these role descriptions pre-dated the commencement of the 2023 Award. Nevertheless, my analysis of the classifications in the precursor Awards supports the view that NSWA had a practice, at least prior to 1 July 2023, of allocating particular jobs or 'positions' to a classification and that sometimes the job/position would carry the same name as the classification - e.g. 'paramedic', but sometimes the job/position would carry a different name to its classification, eg. a 'Station Officer' position is classified as a 'Team Leader'.

NSWA's Submissions

NSWA submitted that the first question should be answered 'no' and the second question should be answered 'yes'.
NSWA, in its written Outline of Submissions on Separate Questions filed on 20 June 2024 (NSWAS), submitted that NSWA's proposal is not an extra claim as cl 5(n) of the 2023 Award expressly permits the creation and/or assignment of a classification within the work level structure set out in cl 5 during the nominal term of the Award.
NSWA noted that cl 5 of the 2023 Award is in significantly different terms from the corresponding provisions in predecessor awards. It sets out 'Work Levels' for paramedics and managers and provides that employees "will be classified according to" those work levels. The "Paramedic Work Levels" are "intended to encompass employees who are, or are training with the employer to be, registered paramedics, other than those appointed to management roles". They range from 'Entry Level' (in cl 5(a)) to 'Level 4' (in cl 5(e)). Each subclause follows the same structure: first, it defines each work level by specifying what the relevant work level 'means'; and second, it provides that "[p]ositions within [the relevant work level] may include (but are not limited to)" one or more specified positions, each of which is in turn, defined. [29]
NSWA then made the following submissions at NSWAS [22] - [26] (footnotes omitted): "22. The words 'creation and/or assignment of a classification to a work level in this Award' in cl 5(n) are properly understood as applying to any position that is not specified expressly in cl 5 as already being included in a work level, where the proposal is to assign the position to a work level as defined in cl 5. The structure of cl 5 is to specify an exhaustive set of available work levels in accordance with which all employees must be classified, but a non-exhaustive set of positions included within each work level. Clause 5 therefore contemplates and accommodates the possibility of including additional positions within a work level, provided that is consistent with the work level definitions in cl 5. The evident purpose of cl 5(n) is to provide a mechanism for dealing with these kinds of proposed changes. The Award uses the terms 'classification' and 'position' synonymously in this context. 23. The Respondent's proposal is for the 'creation and/or assignment of a classification to a work level in this Award' in this sense. The [VCCC Triage Clinician] Positions are not specified as being included in any of the work levels in cl 5. The Respondent proposes to assign the [VCCC Triage Clinician] Positions to the work levels of Paramedic - Level 1 and Paramedic - Level 2 consistent with the definitions of those work levels in cl 5(b)(i) and (c)(i) respectively: as the proposed position descriptions indicate, the VCCC Triage Clinician Paramedic position will be for 'persons employed in or in connection with the provision of paramedicine or ambulance services who is a registered paramedic and otherwise meets the requirements of and is appointed to a Paramedic - Level 1 position as determined by the employer'; and the VCCC Triage Clinician Paramedic Specialist position will be for persons who 'in addition, [have] completed a specialist qualification and/or training and/or acquired specialist experience in an area of specialty as determined by the employer'. The Respondent's proposal therefore falls within the scope of cl 5(n). 24. Contrary to [APAS] [28], the application of cl 5(n) is not limited to the creation of a new classification that did not exist prior to the commencement of the 2023 Award. This is indicated by the inclusion of the words 'and/or assignment' in the first sentence of cl 5(n), and the reference to 'change of classification' in the last sentence. Those words would be otiose if the Notifier's construction is correct. The subclause should not be construed in that way. 25. But even if cl 5(n) were limited to the creation of a new classification, that is what the Respondent is doing. The Positions have not previously existed. They are being created as part of a newly funded permanent establishment. There is no artificiality in distinguishing them from the Interim VCCC Clinician positions when those positions have always been identified as interim and temporary in nature. 26. The 'creation and/or assignment of a classification to a work level' falling within cl 5(n) cannot be an extra claim within the meaning of cl 51. Clause 5(n) expressly contemplates this occurring during the Award's nominal term and provides a mechanism to achieve it. A change that falls within the express text of the Award and for which the Award provides an express mechanism of implementing cannot be described as a 'further' claim or demand, or one for 'extra or reduced' conditions of employment, within the meaning of cl 51."
NSWA further submitted, at NSWAS [27] that the same conclusion can be reached even without reference to cl 5(n): "While the overarching definitions of the work levels in cl 5 are fixed, the positions included in those work levels are not. To this extent, cl 5 is inherently ambulatory: its text expressly accommodates positions being added to, removed from or shifted between work levels where this is consistent with work level definition. Because the assignment of the positions to the Paramedic - Level 1 and Paramedic - Level 2 work levels is consistent with the definitions of those work levels in cl 5(b)(i) and (c)(i), it falls within this ambulatory aspect of cl 5. Again, a change contemplated by the express text of a provision cannot be described as an 'extra claim' for the purposes of cl 51."
NSWA submitted, at NSWAS [28]ff, that the transitional provisions in cl 49 of the 2023 Award do not affect this conclusion for three reasons: 29. First, cl 49 is expressed to apply to 'employees', not to positions. Accordingly, while it may be accepted that employees who were employed in a relevant classification as at 1 January 2024 must be transitioned in accordance with the table in Section 9, it does not follow that their position must be assigned to a work level in accordance with that table. The evident purpose of cl 49, read with cl 11(a) and (b), is to preserve the wages of existing employees in reference to their existing classifications under the 2022 Award. The assignment of positions to work levels - including for persons newly appointed to those positions - is the function of cl 5(n), not cl 49. 30. Second, because it operates at the level of employees rather than positions, cl 49 should be construed as applying only for so long as the employee occupies the position they held as at 1 January 2024. It would not make industrial sense for cl 49 to be construed as meaning that an employee must continue to be employed and paid in accordance with the transitional classification set out in Section 9 after their position comes to an end or if they subsequently change positions. 31. As set out above, the Interim VCCC Clinician positions are temporary. Accordingly, employees who were employed in one of those positions as at 1 January 2024 could only be entitled to the benefit of cl 49 until their temporary appointment ends. That will occur if they apply for and are appointed to one of the permanent Positions. 32. Third, in any event, employees employed in Interim VCCC Clinicians were not actually in the classification of Aeromedical Control Centre Officer under the 2022 Award, and therefore are not entitled to transition by reference to that classification pursuant to cl 49. The definition of the Aeromedical Control Centre Officer classification in the 2022 Award was relevantly [2021 and 2022 Award, cl 5(b)(xxiv)]: Aeromedical Control Centre Officer means an employee who has successfully completed the requirements for and is appointed to an Aeromedical Control Centre Officer position identified as such by the Service. 33. The Interim VCCC Clinician was not 'an Aeromedical Control Centre Officer position identified as such' by NSWA. The position was not formally graded, was not titled as an ACCO position, and was not in substance an ACCO position. The true position is that Interim VCCC Clinicians maintained their substantive classification (as Paramedic Specialist), but NSWA chose to pay them at a higher rate of pay which corresponded with the ACCO rate. This was open under cl 11(a) of the 2022 Award (and the 2021 Award), which, like the 2023 Award, provided that employees 'shall not be paid less than' the minimum wages specified for their classification. 34. It follows that the classification of Interim VCCC Clinicians for the purposes of applying cl 49 was that of Paramedic Specialist."
NSWA submitted, at NSWAS [36]ff, that the APA's alternate proposal to assign the VCCC Triage Clinician position to the work level of Paramedic Level 3 would constitute an extra claim as it "falls outside the work levels and wage rates defined in the 2023 Award", that is, work level Paramedic Level 3 is defined as applying only to a person who is "employed in connection with aeromedical operations". VCCC Triage Clinicians are not employed in connection with aeromedical operations and so the position "cannot be assigned to the Paramedic - Level 3 work leave conformably with the existing definition of that work level. Doing so would change that definition by implication."
Finally, NSWA agreed with the APA that a 'no extra claims' clause such as cl 51 does not and cannot preclude the Commission from making or varying an award in accordance with its powers under the IR Act, however NSWA submitted that the separate questions are concerned only with whether cl 51 applies to the parties' competing proposals; and the discretionary question of whether the Commission should allow either party's claim if it is held to constitute an extra claim, is beyond the scope of the present part of the hearing. [30]

APA's Further Submissions in Reply

After counsel for NSWA finished his oral submissions, the recording of the hearing was interrupted by a global computer outage. Consequently, I gave leave for the APA and the HSU to file short further written submissions in reply.
The APA addressed five matters in reply in its (Further) Reply Submissions filed on 30 July 2024 (APAFRS).
First, it disputed the contention that cl 5 of the 2023 Award has 'ambulatory' operation. It submitted at APAFRS [3] that: "On the ordinary meaning of the words used read in context, including the transitional scheme in cl 49 and Section 9, cl 9(c), and 11 (a) it is not only the first subclause under each Paramedic and Manager Level that is mandatory or binding." According to the APA there is no 'discretion' in the appointment of employees to the 'positions' listed in sub-clauses 5(a)(ii), (b)(ii), (c)(iii), (d)(ii) - (iv), and (e)(ii)(iii).
Second, it submitted, at APAFRS [4], that its construction of cl 5(n) was to be preferred as it allowed cl 51 and cl 5(n) to be "read harmoniously together, and each given full operation". The APA submitted that NSWA's construction, in substance, invited "the Commission to conclude that cl 5(n) operates as a 'leave reserved' clause, permitting claims/demands inconsistent with the commitment in cl 51 to be made during the nominal life of the Award, despite having expressly rejected an invitation to include a leave reserved clause prior to the MOU being entered into."
Third, the APA submitted, at APAFRS [5], that cl 49(b) operated to transfer workers into the new classifications and that thereafter "the worker holds that new classification that under cl 11 entitles the worker to the pay rates for the new Classification, Clinical Level, Band and Increment in Table 1B."
Fourth, the APA submitted, at APAFRS [6], that the VCCC Clinicians were not "temporary employees", as submitted by NSWA, but rather held "temporary appointments."
Finally, the APA submitted, at APAFRS [7] and [8], that the APA's alternate proposal that VCCC Clinicians be classified at the same work level as ACCOs, does not constitute an extra claim as it would merely "preserve the position at the time the no extra claim commitment commenced to operate", that is, on 1 July 2023. The APA noted that NSWA "had designated the classification of ACCO as that applicable to appointment as a VCCC clinician, knowing full well that they were not employed in connection with aeromedical operations." Amending the 2023 Award to acknowledge that historical position is not an "extra" claim because it does not seek "extra … wages, salaries, rates of pay, allowances or conditions of employment."

HSU's Reply Submissions

In its Written Reply filed on 30 July 2024 (HSURS) the HSU submitted that if the interpretation of cl 5(n) contended for by NSWA were accepted, positions which are currently (and indisputably) assigned a particular work level could be re-classified so as to result in a pay cut, which would be "entirely inconsistent with clause 51 of the Award." [31] For instance, a "Deployment Officer", which is currently classified as a Manager - Level 2 under cl 5(j) (ii) (1) ("Station Manager"), could be reclassified as a Manager - Level 1 under cl 5(i)(ii), through the process outlined in cl 5(n). The HSU submitted that such an interpretation was a "risk to the Award and therefore, [the] Paramedic workforce". [32]
The HSU also took issue with NSWA's submission that the overarching definitions of each work level in cl 5 are fixed, while the positions included in those work levels are not. The effect of this, on NSWA's case, is that VCCC Triage Clinicians cannot be classified at work level, Paramedic Level 3 (as the APA seeks in the alternative) as cl 5(d)(i) provides that such a person must meet "the requirements of Paramedic - Level 2 and, in addition, is employed in connection with aeromedical operations …." However, the HSU pointed out that "in the real-life hiring practice of NSWA" ACCO's do not have to be a Paramedic - Level 2, (being essentially, a paramedic specialist), as stipulated in the definitional cl 5(d)(i), but only need be a Paramedic - Level 1. It says this 'real-life hiring practice' is reflected in cl 5(d)(iii) which provides that ACCOs "… need to reflect level 1 minimum qualifications." In other words, as submitted at HSURS [9], an actual ACCO with only Paramedic Level 1 qualifications, would be ineligible to be classified at Paramedic - Level 3.
The HSU submitted that the "operative and instructive part of clause 5(d) relevant to this dispute is (iii) (1), and 5(d)(i) operates merely as a preamble." [33] Consequently, the APA's proposal to include VCCC Clinicians as a Paramedic Level 3, Band 2 position would not involve paying employees at a higher rate than has been fixed under the existing work level structure and so would not constitute an extra claim.
I pause to record that there was no evidence before me that ACCO's only require Paramedic Level 1 qualifications (although this is indeed what cl 55(d)(iii)(1) states) or that NSWA employs ACCOs who do not have Paramedic Level 2 qualifications.

Construction of Clauses 5(n) and 51

I agree with the parties that the separate questions I am required to answer only require me to determine whether cl 51 applies to the parties' competing proposals. I am not required, at this stage, to determine whether the Commission should allow either party's claim, in the face of cl 51 or otherwise. Consequently, I have not had regard to either parties' evidence as to what might be described as the 'value' of the work performed by VCCC Triage Clinicians. Such evidence will be relevant if and when the merits of each parties' claims are arbitrated.
Clauses 5 and 51 of the 2023 Award, read with regard to the Award as a whole and in context, brings to mind the remarks made by Street J, as he then was, in GEO A Bond & Co Ltd (In Liq) v McKenzie [1929] AR (NSW) 498 at 503-4: " …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."
Those sentiments were recently echoed by the High Court in Ridd v James Cook University (2021) 274 CLR 514, at [17]: "Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests."
A strict reading of cl 51, without reference to all parts of the 2023 Award, or to the context in which it was made, would perhaps suggest that the first question would be answered in the affirmative and the second question in the negative. There can be no doubt that persons currently employed as VCCC Triage Clinicians, albeit by way of temporary appointments, are covered by the 2023 Award and currently enjoy a rate of pay that is higher than they will receive as either a Paramedic Level 1 or Paramedic Level 2. The NSWA's proposal will result in a reduction to their rate of pay and so, prima facie, it will offend cl 51. Conversely, the APA's proposal to vary the Award to enshrine VCCC Triage Clinicians as Paramedics Level 3, Band 2, will merely reflect the status quo as at the date the 2023 Award commenced, and so would not offend cl 51. Alas, when regard is had to the whole of the Award and the context in which it was made, it is not that straightforward.
In Re Corrections Health Service Nurses' (State) Award at 245, Wright J said: "In approaching the construction of no extra claims provisions, or provisions such as those contained in the Heads of Agreement, a strict approach of their construction should be applied consistent with the necessity of maintaining the integrity of the wage fixation principles. Nevertheless, a strict construction (that is, one which would be alert to ensure inappropriately brought claims do not proceed) does not require the Commission to ignore the actual words used in the provision or to ignore a clear attempt by the parties to limit the terms of the commitment." (Emphasis added)
All parties agree that cl 51 expressly limited the terms of the parties' commitment by permitting the parties to discuss and agree further pay increases to recognise the contribution of employees to system improvements. It is also agreed however, that the respective parties' claims do not arise from system improvements.
The express limitation contained in cl 51 is not however, the only attempt by the parties "to limit the terms of the commitment".
All parties agree that cl 51 must be read in light of the whole of the Award including, cl 5 which governs the classification of employees.
Clause 5(n) permits "the creation and/or assignment of a classification to a work level" in the Award, during the life of the Award, in two instances: where the parties agree; or where the employer, that is, NSWA, can prove to the Commission that the "change of classification is required." Clause 5(n) must be given its full force and effect. If the creation and/or assignment of a classification to a work level would have the effect of giving employees covered by the Award, extra or reduced wages, salaries, rates of pay, allowances or conditions of employment, the parties must have intended that to be permitted, (provided either of the two conditions set out in cl 5(n) are met), despite cl 51.
The creation and/or assignment of a classification to a work level is not a "further" claim or demand, in the sense of a claim or demand not otherwise anticipated or dealt with by the 2023 Award, nor would any subsequent referral of a dispute about such classification and/or assignment to the Commission, as allowed for by cl 5(n), constitute a proceeding prohibited by cl 51. Clause 51 is directed to claims or demands extraneous to matters otherwise covered by the 2023 Award. I agree with NSWA's submission that: "A change that falls within the express text of the Award and for which the Award provides an express mechanism of implementing cannot be described as a 'further' claim or demand, or one for 'extra or reduced' conditions of employment, within the meaning of cl 51." [34]
But what does "the creation and//or assignment of a classification to a work level" actually mean?
Alas cl 5(n), indeed the whole of cl 5, has not been framed with the "careful attention to form and draughtsmanship which one expects to find in an Act of Parliament". (To illustrate the point by reference to a sub-clause that is not directly relevant to the present dispute, cl 5(l)(ii)(1) defines the position of "District Manager' as someone who, inter alia, is appointed to a 'Duty Operations Manager position'. This is plainly a typographical error. Similarly, cl 5(d)(iii), which is a key clause in this dispute, contains what appears to be a remnant draft note at the end of the sub-clause, given the way it appears namely: "- need to reflect level 1 minimum qualifications", although this is unclear.) Be that as it may, my task is now to interpret the 2023 Award, doing the best I can, applying well established award construction principles.
Interpretation of cl 5(n) first requires a determination as to what is meant by a 'classification'. I accept NSWA's submission, at NSWAS [22], that the 2023 Award uses the terms 'classification' and 'position' synonymously (although NSWA appeared to resile somewhat from this view when it comes to the interpretation of cl 49). A reading of the 2023 Award as a whole supports this view as I explain in the following paragraphs. The APA submitted otherwise: see APARS [25] - [26], however its submission at APARS [35] (see [61] above) which referred to a "claim to reassign a classification or position referred to in cl 5 to a different Work Level …" (emphasis added), and indeed the manner in which counsel for the APA interchanged in oral submissions the terms 'classification' and 'position', demonstrates that it too, considered the words 'classification' and 'position' to be transposable.
The words and structure of cl 5 itself support the view that 'classification' and 'position' are used synonymously in the 2023 Award. The opening sentence of the clause provides that: "Employees will be classified according to the Work Levels set out below". While each work level is then identified and defined, listed under each work level is a list of 'Positions' which may be included within that work level. The definition of each 'Position' commences with the phrase: "[Name of Position] means an employee who has [certain qualifications] …" It is clear what while individual employees are indeed classified or allocated to a particular work level (as submitted by the APA), they as so 'classified' by the position they hold. In other words, their position designates their work level.
This is supported by the words used in cl 5(e) - Paramedic - Level 4. Clause 5(e)(ii)(1) defines the 'position' of 'Ambulance Clinical Training Officer' (being a position included in work level Paramedic Level 4, Band 1) and then goes on to say, by reference only to that position: "This category of employee will be principally involve in in the provision of ….." (Emphasis added)
The same words are used in the definitions for the 'positions' of Ambulance Clinical Educator (cl 5(e)(iii)(1)) and Ambulance Paramedic Educator (cl 5(e)(iii)(2)).
Other provisions within the 2023 Award support the synonymous use of 'position' and 'classification', notably the definition of "Employee" in cl 4(g); cl 11(a), which refers to employees being paid not less than the minimum wages "for their classification" set out in Tables 1A and Table 1B which in turn list 'Positions' under the headings 'Classifications', rather than work levels; and Section 9 - Transitional Arrangements, which under various headings of 'Classifications', are lists of various 'positions'. I disagree that the clauses the APA identified in APARS [26] as demonstrating that the words are not used synonymously, in fact do so.
Having established that the word 'position' and 'classification' are used synonymously in the 2023 Award, and thus can be used interchangeably, I find that the reference to 'classification' in cl 5(n) refers equally to 'position'.
The APA submitted that cl 5(n) applied only to the creation of a new classification (position), and the assignment of such new classification (position) to a work level, and that it has no application to existing classifications (positions) as this would clearly offend cl 51. However, in my view the use of the expression "and/or" and the reference to "change of classification" in cl 5(n) indicates that the parties intended that the clause could be utilised, without offending cl 51, to change the assignment of a work level to a classification (position) that existed at the time the 2023 Award commenced.
Doing the best I can, and applying the principles set out be Davies J in New South Wales Nurses and Midwives' Association v State of NSW, I consider that cl 5(n) provides for: 1. the creation and assignment of a [new] classification [position] to a work level in the Award; 2. or the assignment of an [existing] classification [position] to a work level in the Award; 3. provided genuine consultation occurs; and 4. if agreement on the creation and/or assignment of the classification [position] is not achieved, either party can refer the matter to the Commission in line with cl 47 of the 2023 Award; and 5. if the dispute is not resolved in conciliation, NSWA "bears the onus [in arbitration for what would be a variation of the Award] to prove that the change of classification is required."
In relation to (5) in the preceding paragraph, I acknowledge that the expression "change in classification" is not particularly apt to the circumstance where a new classification is being created and assigned to a work level for the first time as it may be said that that will not result in a "change". However, applying the principle that awards are to be seen as beneficial instruments and a generous construction is to be applied over a strictly literal approach, I consider that the expression "change in classification" merely refers to the alteration being proposed by the creation and assignment of a new classification/position. Thus NSWA will have to meet either of the two pre-conditions prescribed in cl 5(n) before it may introduce a new classification/position.
NSWA's submissions regarding the interpretation of the words "creation and/or assignment of a classification to a work level in this Award" in cl 5(n) were somewhat contradictory.
NSWA first submitted, at NSWAS [22], that the words "are properly understood as applying to any position that is not specified expressly in cl 5 as already being included in a work level, where the proposal is to assign the position to a work level as defined in cl 5", regardless of whether the classification is new or existing. Thus, it says, that as the VCCC Triage Clinician position is not specified as being included in any of the work levels in cl 5, NSWPA's proposal falls with the scope of 5(n).
However, NSWA went on to submit, at NSWAS [27], that NSWA is permitted to assign VCCC Triage Clinicians to work levels Paramedic Level 1 and Level 2, even without reference to cl 5(n), as "cl 5 is inherently ambulatory: its text expressly accommodates positions being added, to removed from or shifted between work levels where this is consistent with work level definition." Thus, is says, "a change contemplated by the express text of a provision cannot be described as an 'extra claim' for the purposes of cl 51."
This second submission undercuts somewhat the first submission: if correct it would enable positions/classifications to be 'removed from or shifted between work levels' even though they are already specified as being included in the work levels in cl 5. This would leave cl 5 with no work to do.
I think the better approach is to regard the "ambulatory language" used in cl 5 as supporting a construction of cl 5(n) which allows for positions/classifications to be added to or re-assigned within, the work levels enumerated in cl 5, as I have set out in paragraph [111]. Further, the ambulatory language supports a view that this may be done without formal variation of the Award, provided of course that the Unions agree. That is, NSWA may assign a position to a work level (be that a new or existing position), provided the APA and HSU agree, without formally including that position in the list of positions contained in the 2023 Award under each work level.
To be clear, I agree with the APA's submission that there is "no 'discretion'" on the part of NSWA to assign persons appointed to the positions listed in cl 5 to anything other than the work level to which that position has been allocated in cl 5. Indeed, as I have just explained and will elaborate upon further below, I would go further and say that there is no discretion to re-assign a position/classification to a different work level from that it which has been allocated in practice. However, that is only for so long as that classification/position remains assigned (in the Award or otherwise) to that work level. Clause 5(n) expressly allows for a "change of classification" provided either of two pre-conditions are met: the parties agree or NSWA can establish before the Commission, that the "change of classification is required." Those two pre-conditions are extremely important safeguards that ensure, contrary to the HSU's slightly histrionic submission that I outlined at [86] above, that there is no "risk to the Award and therefore, [the] Paramedic workforce".
I reject the APA's submission, at APARS [4] that its construction of cl 5(n) was to be preferred as it allowed by cl 51 and cl 5(n) to be "read harmoniously together, and each given full operation" and that cl 5(n) operates as a 'leave reserved' clause, despite the Health Secretary (on behalf of NSWA) expressly rejecting an invitation to include such a clause in the 2023 Award. The construction I prefer does allow both cl 5(n) and cl 51 to be read harmoniously. As already explained at [100] above, a construction of cl 5(n) which permits existing classifications to be changed, even if this reduces employees' remuneration, cannot be regarded as a "further" claim or demand, extraneous from matters otherwise covered by the 2023 Award. Clause 51 simply does not apply to such an event.
Further, I do not consider cl 5(n) to operate as a 'leave reserved' clause, although even if it did, I do not see how or why it ought not be afforded its full operation. I do not understand the APA to go so far as to allege that the 2023 Award, or at least cl 5(n) of the 2023 Award, was void or voidable by reason of it having mistaken the effect of the clause in circumstances where NSWA was aware of its mistake or that NSWA had misled it in some way.
My understanding, and as was submitted by counsel for the APA [35] , is that 'leave reserved' clauses may be deployed where the parties have agreed to a 'no extra claims' clause which prohibits any kind of extra claim during the nominal term of an award (not just claims that fall outside the current Wage Fixing Principles), where they nevertheless intend to continue to make, negotiate and/or have determined, identified but otherwise unresolved claims not otherwise provided for in the award, during the nominal term of the award. Clause 5(n) is not such a clause. It provides an agreed mechanism for implementing the assignment to a work level of a new classification or the re-assignment to a work level of an existing classification. In other words, the parties had resolved how a particular issue will be dealt with during the term of the 2023 Award. Or, to use the words of the Full Bench in Crown Employees Salaries and Conditions Award at [16], cl 5(n) represents "a settled arrangement for the term of the award".
Further support for this view is obtained from the extrinsic material which reveals the industrial context in which the 2023 Award was made, namely that the assignment of classifications/positions to Work Levels was an extant issue as at the date the 2023 Award was made. In cl 2b. of the MOU the parties expressly acknowledged that not all classifications under the 2022 Award were accounted for in Attachment A to the MOU, but despite this it was agreed that the 2023 Award and its proposed subsequent variation at the end of the three year term of the 2023 Award, "will include relevant increases for all outstanding clinical classifications that have been omitted in Attachment A." This would necessarily involve assigning those omitted, but existing classifications/positions, to a work level specified in the 2023 Award.
Further, the email from Ms Forsyth-Sells to Ms Jacobs of 20 December 2024 (before the signing of the MOU and before the making of the 2023 Award, by consent) expressly states that the Award had been drafted "to conceive of discussions regarding existing and future classifications and their positions in the work levels." (My emphasis). She explains this is the purpose of proposed cl 5(n) which "deliberately allows the parties to work collaboratively to resolve any issues about the assignment of classification to work levels in the award during the term of the award."
Awards are of course, to be construed objectively where the parties' subjective intentions and beliefs are not relevant. Nevertheless Ms Forsyth-Sells' subjective interpretation of cl 5(n), communicated to the APA before the APA signed the MOU and consented to the making of the 2023 Award, is entirely consistent with what I consider to be the ordinary meaning of the words used in cl 5(n), understood in the light of its industrial context and purpose.

Answer to the First Question

For the reasons set out at [93] - [124], I agree with NSWA's submission, at NSWAS [24] and [26], that the application of 5(n) is not limited to the creation of a new classification that did not exist prior to the commencement of the 2023 Award, but extends to the re-assignment of existing classifications/positions and the 'creation and/or assignment of a [new or existing] classification to a work level' by NSWA is not an extra claim within the meaning of cl 51, even if this results in a reduction in remuneration. This being the case, the answer to the first question must be 'no'. This is so regardless whether, as submitted by NSWA, the classification of VCCC Triage Clinician as a Paramedic or Paramedic Specialist within work level Paramedic Level 1 or Paramedic Level 2 respectively is the creation of a new classification to a work level; or, as submitted by the APA and the HSU, a change of the assignment of the classification of VCCC Triage Clinician from work level Paramedic Level 3, Band 2 to Paramedic Level 1 or Paramedic Level 2.
As neither the APA nor the HSU consent to NSWA's proposal however, as per the terms of cl 5(n) NSWA will have to prove to the Commission that the assignment of the VCCC Triage Clinician position to work level Paramedic Level 1 or Paramedic Level 2 is "required". Until then, as per cl 47(g), the status quo should be preserved.
In order to answer the first question, I do not need to decide whether NSWA's proposal involves the creation of a new classification to a work level or an assignment of an existing classification to a different work level, however that is a matter I do need to address in order to answer the second question.

Answer to the Second Question

In the event that the answer to the first question is no, the APA proposes that the 2023 Award should be varied to include the position of VCCC Triage Clinician in clause 5(d)(iii) - that is, it proposes that the position of VCCC Triage Clinician be assigned to work level Paramedic Level 3, Band 2.
As I observed at [68] above, the APA's case in support of this proposal was somewhat contradictory. On the one hand it submitted, in essence, that such a variation would not constitute an 'extra claim' because VCCC Triage Clinicians are already classified as ACCOs, which classification is assigned to Paramedic Level 3, Band 2. [36] On the other hand, it submitted that its proposal was the creation of a new classification and the assignation of that classification to a work level, namely Paramedic Level 3, is expressly permitted by cl 5(n). [37]
As I have already explained, NSWA contends not only that the position of VCCC Triage Clinician has not been assigned to work level Paramedic Level 3 Band 2, but it cannot be, because "work level Paramedic - Level 3 is defined as applying only to a person who is 'employed in connection with aeromedical operations'" and VCCC Triage Clinicians have no connection with NSWA's aeromedical operations. [38] NSWA further contends that for this reason the APA's "proposal is an extra claim because it falls outside the work levels and wage rates defined in the 2023 Award." [39]
I agree with the APA that if the VCCC Triage Clinicians have in fact already been assigned to work level Paramedic Level 3 Band 2, formalising this assignment in the 2023 Award through the making of a variation to the Award pursuant to s 17 of the IR Act, including if need be through the amendment of the definition of work level Paramedic 3, would not constitute an extra claim within the meaning of cl 51 as it would, as submitted by the APA "do no more and no less than enshrine the existing conditions of employment within the 2023 Award." The APA's proposal would simply reflect the status quo at the time the 2023 Award was made and would not constitute an 'extra claim', consistent with the approach taken in Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff) Award [2011] NSWIRComm 1017.
Alternatively, if VCCC Triage Clinicians have not already been assigned to work level Paramedic Level 3, Band 2, the APA's proposal would constitute an extra claim, for the reason propounded by NSWA.
In my view cl 5(n) provides no assistance to the APA as the creation and/or assignment of classifications/positions to work levels is a matter for the employer in the first instance. It is not for employees to propose how an employer should structure its business, although of course, it will commonly have a right to be consulted about such matters, as indeed they do in this case, via cll 5(n), 6 and 47. Unions may also of course, apply for the variation of an award, to include a new or amended classification, pursuant to s 17 of the IR Act, but it will have to first overcome the strictures of any 'no extra claims' clause and satisfy the requirements of s 17(3)(c) or (d) (as the case may be). In short, cl 5(n) is a provision that only NSWA may invoke to create and/or assign classifications to work levels, as evidenced by the fact that it stipulates that "the employer bears the onus to prove that the change of classification is required."
So, have VCCC Triage Clinicians already been assigned to work level Paramedic Level 3, Band 2? The answer to that is 'yes'.
I do not agree with NSWA's arguments that persons occupying the position of what was and is styled 'Interim VCCC Clinician' have not in fact been assigned to work level Paramedic Level 3, Band 2.
First, the evidence clearly shows that Interim VCCC Clinicians were initially appointed to and assigned, the "Position Classification" of "Aeromedical Ops Off". As I explained at [24] above it is not in dispute that this position equates to an ACCO in the 2021 Award and all subsequent Awards. In short, Interim VCCC Clinicians were assigned the classification of an ACCO and have, since the inception of the position in 2021, been paid at the pay rates applicable to ACCOs. I reject NSWA's submission at NSWAS [33] that the "Interim VCCC Clinician was not "an Aeromedical Control Centre Officer position identified as such" by NSWA and that the "true position is that Interim VCCC Clinicians maintained their substantive classification (as Paramedic Specialist), but NSWA chose to pay them at a higher rate of pay which corresponded with the ACCO rate."
The Position Descriptions tendered in evidence, which I described in paragraph [24], clearly show the position was effectively classified as an ACCO. Further, the evidence of Mr Hatter and other 'Job Description' documents tendered in evidence, supports the view that NSWA has, or at least had at the relevant time, a "real-life hiring practice" of allocating positions to classifications which did not necessary match or meet the description of the classification. I accept the HSU's submission at HSUS [17] that when "NSWA created and put into effect the VCCC Clinician position, it essentially determined that a VCCC Clinician is an ACCO for the purposes of the Award. As such, VCCC Clinicians are (for the purposes of the Award) ACCOs who have successfully completed the requirements for and [are] appointed to an ACCO position identified by the employer."
Second, I reject NSWA's submission that because the appointments are temporary "they were not actually in the classification of Aeromedical Control Centre Officer under the 2022 Award, and therefore are not entitled to transition by reference to that classification pursuant to cl 49."
I accept the Unions' submissions that the fact that the employees were appointed on a temporary basis to the VCCC Clinician position does not matter for the purposes of identifying the appropriate classification: the classification structure does not relevantly distinguish between full-time, part-time, temporary or casual employees. The classification structure of all of the relevant Awards, applies equally to each type of employee, by reference to the position they hold, temporary or otherwise.
As I have already found, from its establishment in 2021, the VCCC was intended to be a permanent institution within NSWA. The proposed permanent VCCC Triage Clinician roles are for all intents and purposes the same roles currently being performed by the employees temporarily appointed as VCCC Clinicians, albeit that the work required of those employees has evolved over time. This is borne out by a comparison of the Position Descriptions for 'Interim Clinician VCCC' and the draft Role Descriptions for the VCCC Triage Clinician Paramedic and VCCC Triage Clinician Paramedic Specialist.
Third, I do not accept NSWA's arguments that the transitional provisions in the 2023 Award (cl 49 and Section 9) only apply to 'employees' not to positions. To adopt the phrase used by the HSU in HSURS, albeit in a different context, such an interpretation could pose a "risk to the Award and therefore, [the] Paramedic workforce." It would mean that as at 1 July 2023 when the 2023 Award commenced, only those employees employed in positions expressly referred to in cl 5 were assured of being assigned a particular work level (and hence paid at the application remunerations rates) - subject of course to cl 5(n). While it is the case that cl 49 would ensure that individual employees employed as at 1 January 2024 would be classified at the work level and/or paid at the point set out in Section 9, there would be no guarantee or certainly of status and remuneration if an employee moved into a position not specified in cl 5. That cannot have been the intention of the parties. To adopt a phrase used by NSWA at NSWAS [30], albeit to support its construction which I reject, it "would not make industrial sense". I agree with the oral submission of counsel for the APA that cl 49 is "not just about preserving pay rates. It's about preserving the classification." [40]
All parties agreed at the time the 2023 Award was made that not all existing classifications/positions had been identified and listed in the Award, but as the MOU made plain, the intention was that the remuneration increases provided for by the 2023 Award would flow through to "all outstanding clinical classifications".
The intention of the parties, as evidenced by the terms of the MOU and cll 5(n) and 49 (and by the correspondence between Ms Jacobs and Ms Forsyth-Sells) was for any existing classifications/positions to be transitioned to the work level classifications set out in Section 9 of the Award on 1 January 2024 (with any employees employed in those classifications/positions enjoying the new transitioned classification and its associated pay rates), while allowing the ability of NSWA to assign or re-assign existing and future classifications to particular work levels, under the strict conditions provided for in cl 5(n).
Pursuant to cl 49 and Section 9 the position of "Aeromedical Control Centre Officer" was to retain the same nomenclature upon transition and be assigned to Work Level 3, Band 2, Increment 1. VCCC Clinicians were so transitioned and have been paid since 1 January 2024 according to that work level. It is now open for NSWA to re-classify the position as one suitable to Paramedic Level 1 or Level 2, but to do so it must meet the requirements of cl 5(n), being the process agreed upon by the parties.
As VCCC Triage Clinicians have already been assigned to work level Paramedic Level 3, Band 2, the APA's proposal, which is to amend the 2023 Award to reflect that assignation, does not constitute an extra claim for the purposes of cl 51 as there will be no change to remuneration or conditions of employment and so the answer to the second question is also 'no'.

Conclusion and Direction

I am aware that my interpretation and application of cl 5(n) and 51 of the 2023 does not accord with either parties preferred approach: the APA (and the HSU) advocated for a construction where cl 5(n) only allows for the assignment of new classifications or positions to a work level and the re-assignment of a classification or position is expressly prohibited by cl 51; NSWA advanced the position that cl 51 did not impact at all upon the operation of cl 5(n) which allows for both new and existing positions to be assigned or re-assigned during the term of the 2023 Award, unless they have already been designated within a work level in cl 5, and contended that cl 51 prevented such assignation if an existing position or classification does not conform with the existing definition of the work level to which the position or classification had to be assigned.
The Commission is not bound to adopt a construction of an award propounded by one of the parties to a dispute before the Commission. Subject to the requirements of procedural fairness, the Commission is entitled to reach its own conclusion as to what an award means. As the Full Bench (Wright J President; Walton J Vice-President; Marks J) said in Gibson v Western Sydney Area Health Service [2003] NSWIRComm 465; 130 IR 95 at [32]: " … It is plain that the Court is obliged to reach its own conclusion as to what it considers is the correct interpretation of the relevant statutory schemes and their interaction. Pearce and Geddes in Statutory Interpretation in Australia, 5th Edition, 2001 at pp 4 - 5 observe: [1.5] McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547 pointed out that responsibility rests with the court for the interpretation to be placed on an enactment. He cited Lord Wilberforce in Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 at 212: 'Judges are more than mere selectors between rival views - they are entitled to and do think for themselves'. The fact that counsel have not supported a particular interpretation of legislation does not, indeed must not, prevent a court from adopting that interpretation if the court considers the interpretation to be correct. The approach of McGarvie J was adopted in Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 at 126. That passage, or the observations there cited of Lord Wilberforce or those of McGarvie J, has been followed in a number of recent decisions of New South Wales courts. The observations, for example, have been cited frequently in judgments of the Land and Environment Court. …. A similar approach was taken recently by Bell J in the Supreme Court in Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552. See also the observations of Gleeson CJ and Kirby J, albeit in dissent, in the recent judgment of the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806, respectively at [7] and [51], where their Honours said: [7] First, there is nothing unusual about a trial court, or an appellate court, adopting a view of the facts, or of the law (including the construction of a written instrument), different from the views for which the parties to litigation respectively contend. In the present case, each party contended for a particular meaning to be given to the Award. The Full Court of the Federal Court was not bound to adopt either of those meanings. It was entitled to reach its own conclusion as to what the Award meant, subject to the requirements of procedural fairness. … [51] The fact that neither of the parties supported the Full Court's reasoning or conclusion is not a ground why this Court, giving effect to the requirements of the law, should not do so: Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527 at 559 - 560. This Court, like the Federal Court, is a court of law. It is not an arbitrator obliged to devise the best possible solution within parameters fixed by the parties. It does not exist merely to reach a conclusion wanted by one side of the contest [cf joint reasons of McHugh, Gummow, Callinan and Heydon JJ at [41]]. It has a higher duty to the law. Sometimes, by the conduct of proceedings, a party may disentitle itself from claiming the benefits of the law: Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706 at [75], [82]. Such cases apart, it is not for parties, by submissions or concessions, to deflect the Court from giving effect to the law, which has a public, not just private, quality and obligation: Roberts v Bass (2002) 77 ALJR 292 at 320 - 321 [143] - [144] …
As I have already stated, the answer to both of the questions ordered to be separately determined is 'no'.
In order that the balance of the dispute may now proceed to be resolved I direct that the parties attend a directions hearing before me on 22 November 2024 at 11.30am in person. Janet McDonald Commissioner

Endnotes

Ex APA1.
Ex HSU 1.
Ex NSWA 1 [29].
Ex NSWA 1 [17].
Ex NSWA 1 [34].
Ex APA 3 [19].
Ex APA 4 [10].
Clause 5 contains subclauses (a) - (e), (h) - (j), (l) - (n). There is no sub-clause (f), (g) or (k). Sub-clauses (i), (j) and (l) refer to 'Manager Work Levels' not 'Paramedic Work Levels'.
Supra.
The parties agreed this is a typographical error. The reference should be to clause 4.
APAS [16] and [18]; APARS [8] - [13].
APAS [39].
APASR [22].
APAS [28], [40]; APARS [23].
APARS [35].
APAS [40].
APAS [2].
APAS [43]; APARS [9] - 13].
APAS [43].
APAS [37].
APAS [41].
Re Corrections Health Service Nurses' (State) Award [1999] NSWIRComm 123; 90 IR 235 at 229 and 243.
APAS [45].
APAS [46].
HSUS [13].
HSUS [17].
HSUS [19].
Ex HSU 2 [9].
NSWAS [14].
NSWAS [12].
HSURS [16].
HSURS [15].
HSUR [10].
NSWAS [26].
Tcpt, 19 July 2024, p 27(40)-(43).
See APAS [46].
See APAS [37].
NSWAS [37] and [38].
NSWAS [36].
Tcpt, 19 July 2024, p 20(37)-(38). 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: 14 November 2024

[1999] NSWIRComm 123

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