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

Evidence

1. The APA relied on statements from: 1. Katherine Marie Braithwaite, an ACCO since 2019; 2. Randal Carlisle, a Paramedic with NSW Ambulance who had previously been an ACCO and a Duty Aeromedical Officer; 3. Larissa Couldwell, an ACCO since 2016; 4. David Lilly, an ACCO since 2017; 5. Haley Louise Mestroni (née Estreich), [3] a Duty Aeromedical Manager; 6. Linda Mountstephen, an ACCO since 2000; 7. Padraig Allan O'Riordan, an ACCO since 2018 and a delegate of the APA, who made two statements; and 8. Michael John Southers, an ACCO since 2012.
2. The Health Secretary raised a general objection in respect of the statements on which the APA relied, namely that they should be taken to be a statement of belief by each witness as to what was in their minds and not to the truth of the contents. In particular, a statement by a witness that they were "on call" should not be regarded as more than their belief that they were, rather than as truth of that fact. The statements were all accepted on that basis.
3. The Health Secretary relied on statements from: 1. James Edwin Vernon, formerly the Assistant Commissioner, Control Division with NSW Ambulance and now contracted to NSW Health as a Senior Adviser; and 2. Paul Whitwell, the Manager, Aeromedical Control Centre with NSW Ambulance.
4. The APA raised objections to aspects of the Health Secretary's evidence in which the witness offered opinions, particularly as to the meaning and effect of the Award. I accepted the material subject to the weight to be attached to it. I consider that the views of the witnesses as to how the relevant provisions of the Award ought to be construed, or as to whether ACCOs have an entitlement under the Award or otherwise to continue to receive the relevant allowance, are not relevant to the determination I am asked to make and I have disregarded that evidence.
5. The Health Secretary's evidence contained documents regarding the earnings of ACCOs, including PAYG slips. The APA and the HSU objected to this material being accepted into evidence. As it transpired, the evidence was ultimately not pressed by the Health Secretary, on the understanding (which is clear from other evidence in the proceedings) "that certain people do more overtime than others". [4] However, as Mr Nagle had by then cross-examined Mr O'Riordan by reference to this evidence, I informed the parties that I would make orders under s 164A of the Industrial Relations Act preventing the publication of that material.
6. Other objections made by the APA and the Health Secretary to each other's evidence were dealt with on the basis that the material would be admitted subject to the weight to be given to it. I have taken those matters into account.
7. The HSU adduced only limited evidence, being documents tendered through the Health Secretary's witnesses.
8. On 25 March 2020, nearly two months after the hearing, the APA made an application that the proceedings be re-listed so that it could seek leave to tender additional evidence which it claimed had only come to its attention the day before. Having called for and received submissions from the APA and the Health Secretary on the matter - the HSU having previously expressed its support for the APA's application - I decided to admit the further evidence, subject to consideration as to the weight to be attached to it: Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance (On Call Allowance for Aeromedical Control Centre Officers) [2020] NSWIRComm 1023.
9. The additional evidence which the APA was given leave to file comprised three pieces of correspondence from February and March 1995. It concerned the payment of an on-call allowance to a Greg McGuire, an Air Ambulance Co-ordination Officer. It is not apparent from the evidence that this role is the historical equivalent of an ACCO. This calls into question the relevance of the evidence. Even assuming that the roles are equivalent, I do not consider that particular weight ought to be attached to the evidence. At most, it offers some corroboration for the evidence which was otherwise adduced from both the APA's and the Health Secretary's witnesses.

Factual context

1. In broad terms, there was little controversy about the relevant facts.
2. The role of an ACCO "involves the coordination of aeromedical assets to ensure patients [receive] medical care and appropriate transport". [5] Mr Whitwell described their "key responsibilities" to include: [6] "a) Identifying the clinical needs and facilitating advice on clinical management of patients requiring retrieval and transport to a higher level of care facility and providing proactive case management and facilitating the early activation of aeromedical/retrieval resources for patients who are at risk of significant injury or have acute, serious medical conditions; b) Approving and authorising the transport of patients and undertaking efficient preparation and activation of aeromedical resources by updating of flight plans using the aeromedical computer aided data system, taking into account clinical needs, economics of flight, pilot duty limitations, weather conditions and airfield; c) Maintaining communications and undertaking actions to ensure the patient care objectives of the NSW Health Critical Care Tertiary Referral Policy Directive are met, including monitoring and facilitating the timely progression of critically injured or ill patients through the health system; and d) Providing advice, briefings and operational reports to the Retrieval Clinical Manager and Aeromedical Control Centre Manager to achieve quality patient outcomes through effective triage, resource allocation and co-ordination and assist with ongoing development and implementation of state-wide clinical coordination policy and local operating procedures."
3. A number of the ACCOs employed in NSW Ambulance are trained as Rapid Launch Trauma Coordinators ("RLTCs"). Mr Whitwell described their role as follows: [7] "11. …RLTC's were officially funded in 2009 and are qualified ACCO's with additional certification in helicopter operations and are responsible for the coordination of helicopter and road retrieval vehicles. The position monitors Triple Zero (000) calls in VisiCAD to consider early activation of a medical team, reviews paramedic reports and assesses requests for a medical team. They are also the point of contact for search and rescue requests from NSW Police or the Joint Rescue Coordination Centre…"
4. There was no controversy that ACCOs who are performing the role of an RLTC are receiving and are entitled to receive an on call allowance under the Award. [8] It follows that the controversy between the parties which is the subject of this decision is confined to those ACCOs who are not performing the duties of an RLTC.
5. As a means of communicating with its staff, NSW Ambulance uses a web-based messaging system called "Whispir". This system allows for SMS messages to be sent to staff. It is used, amongst other things, to notify staff of available overtime shifts.
6. NSW Ambulance also utilises a system called "MyShift", which is an electronic system developed for staff to request overtime and shift swaps. It allows staff to advise of their availability for overtime and for management to allocate overtime.
7. The current arrangements for filling roster vacancies involve staff receiving an electronic notification from myShift regarding their request for overtime, to which they are required to provide a response. If there is a roster vacancy and staff have not indicated their availability for overtime in myShift, an SMS message is sent by management to all staff via Whispir to see if anyone is interested in accepting an overtime shift. If the vacancy remains unfilled managers may contact staff via telephone to offer the overtime shift directly.
8. ACCOs are employed under the Award. Clause 23 of the Award provides as follows: 23. Employees on Call (a) (i) Time on call means time during which an employee who is rostered off duty is required to hold himself or herself in readiness to answer a call. In any one day where an employee answers telephone calls when not on call, he or she is to be paid for one hour at ordinary rates of pay. (ii) The provisions for employees recalled to work are contained in this clause. A recall under this clause shall not be treated as overtime for any other purpose and shall not be treated as time worked for the purposes of clause 22, Roster of Hours. (iii) Whilst no provision is made as to freedom from on call, it is the intention of the parties that employees should be free from call, as far as practicable, on at least 14 days in each roster cycle of 28 days. However if required by the employer, and with the agreement of the employee, an employee can be on call in excess of 14 days in each roster cycle of 28 days. In such circumstance, the employee shall receive the daily on call allowance for each such additional episode. (iv) The parties will review any situation where an employee is required to be consistently on call in excess of 14 days in each 28-day cycle. (v) A period of on call is to be regarded as commencing at the completion of duty on one rostered shift to the commencement of duty on the next rostered shift. (vi) Employees shall not be required to be on call during any part of a rostered day off duty, i.e. from the end of the shift before the rostered period off duty and the commencement of the shift after the rostered period off duty. … (f) (i) The weekly on-call allowance as set out in Item 4 of Table 2A - Allowances, of Part B, Monetary rates, shall apply in the following circumstances: (1) Employees required by the Service to be on call on a roster other than a modified hours roster; (2) Employees employed on or before 31 July 1988 who are required by the Service to be on call; or (3) Employees who are required by the Service to be on call as part of a modified hours roster where the weekly on call allowance applies by agreement between the parties. …
9. The APA submitted that ACCOs work to a modified hours roster within the meaning of cl 23(f)(i) of the Award. This was not controverted by the Health Secretary.
10. The current on call allowance payable under the Award is $97.40 per week.
11. For more than 30 years ACCOs (or their equivalents under the relevant industrial instrument) have been paid an "on call allowance". As the contest between the parties includes whether the ACCOs are properly to be regarded as being "on call" within the meaning of the Award, I will hereafter refer to it simply as "the Allowance".
12. On 29 August 2016 Mr Carlisle sent an email titled "Some Changes to ACC Procedures to Coincide with the release of the next Roster Commencing 10/9/16" to a number of recipients. That email dealt with a number of matters, including the process for allocating overtime and on call responsibility. On the latter the email stated: "On Call Responsibility: Please remember that all the AMOOs [then the equivalent of ACCOs] and RLTCSs [sic] are deemed to be on call and there is the potential for you to be re called to duty due to staffing or operational issues. It is a requirement for you to answer your mobile phone or return the call in a timely fashion."
13. On 10 October 2016 Mr Whitwell forwarded Mr Carlisle's email to recipients that included the then equivalent of ACCOs. While Mr Whitwell's email made reference only to the overtime allocation process, there is no suggestion he objected to, much less sought to correct, Mr Carlisle's description of the employees' "on call" obligations.
14. In or around June 2019, in an endeavour to identify cost savings within NSW Ambulance, Mr Whitwell conducted an "investigation" into the payment of the Allowance to ACCOs. That investigation was confined to a review of the ACCOs' letters of offer and the Award. Mr Whitwell concluded that there was "no contractual basis" for the payment. [9]
15. On 24 July 2019 Dr Sarah Coombes, the Acting Executive Director, Aeromedical Operations for NSW Ambulance, sent an email to staff in the Aeromedical Control Centre ("ACC") which included the following: "I wish to advise you all that a review has recently been undertaken in relation to the On Call arrangements required to maintain service delivery in the NSWA Aeromedical Control Centre (ACC). As a result it has been determined that there no longer exists a requirement under the Award to continue the payment of the On Call allowance for the majority of Aeromedical Control Centre Officers (ACCO's) currently working in the ACC. As with other operations in NSWA where there is sufficient resourcing and 24 hour coverage by positions, the requirement for On Call arrangements falls away. There has been significant enhancement over recent times to support the ACC functions including: • Clinical Coordinator position. • Duty Aeromedical Manager with 24 hour on call support. • ACC Manager on call. In addition the Chief Executive has approved our business case for the enhancement of the RLTC establishment by an additional 3.0 FTE specifically for the provision of a night shift, this providing 24 hour coverage. … The proposed date for the payment of the On Call allowance to cease is the pay period commencing 17 August 2019."
16. On 7 August 2019 Dr Coombes and Mr Whitwell met with ACC staff. During the meeting it was confirmed to staff that NSW Ambulance intended to cease paying the Allowance to ACCOs from the pay period commencing 17 August 2019.
17. On 9 August 2019 Mr Whitwell took part in a meeting with representatives of the APA and the HSU to discuss the decision to cease paying the Allowance to ACCOs. In that meeting the unions requested that NSW Ambulance provide additional information to allow them to consider the matter further. There is no evidence that this information was ever provided.
18. In an email to ACC staff sent on 9 August 2019 Dr Coombes advised that the date for ceasing payment of the Allowance had been suspended pending further consultation with the unions.
19. On 9 October 2019 NSW Ambulance wrote to the unions "requesting that they outline their reasons why they contended that the On Call Allowance be payable to ACCO's on an ongoing basis". [10] There appears to have been no response to this letter.
20. On 30 October 2019 Mr Whitwell sent an email to ACC staff in the following terms: "A meeting was held with the unions on 9 August 2019 to discuss the plans of NSW Ambulance to cease the payment of On Call allowance to ACCOs working on 24/7 rosters. The unions raised a concern that they believed the payment of weekly on call allowance was a contractual arrangement and part of the salary of an ACCO. Pending our investigation of the concerns raised by the unions and conferring further with the unions, NSW Ambulance took no steps to cease the payment of the on call allowance as mooted. Our investigation of the union's claims determined that there is no contractual basis for the payment of weekly on call allowance to ACCOs. In terms of history, the ACCO classification was upgraded in 2005 from the pay scale of a DOCO. Agreement was reached with the HSU to settle on a pay scale that was approximately 80% of difference between a DOCO and SOCO. As per the Award, the entitlement for the payment of an on call allowance arises where there is a requirement for staff to engage in the activity of being rostered on call and hold themselves available to be recalled back to duty. As this requirement no longer exists, there is no entitlement under the Award for staff to be paid for an activity they do not undertake. NSW Ambulance wrote to the unions on 9 October 2019 advising that only the conditions of the Award prevailed in respect to the payment of weekly on call allowance. The unions were invited to respond in writing to NSW Ambulance by the cob 25 October 2019. To date the unions have not been able to establish any grounds and reasons as to why On Call Allowance should continue to be paid to ACCOs. Accordingly, NSW Ambulance is giving reasonable notice that the payment of the weekly on-call allowance will cease in the pay period commencing 7 December 2019, for ACCO's who are not required to be rostered on call." (Sic)
21. The APA filed the Notification on 6 November 2019.

The APA

1. The APA submitted that ACCOs have an entitlement to the Allowance in one of two ways. Firstly, it was contended that the entitlement arises under the Award. The APA's submissions in this regard may be summarised as follows: 1. The arrangements under which ACCOs work require them to "hold [themselves] in readiness to answer a call", within the meaning of cl 23(a)(i). The "call" is a request to cover a short notice vacancy, either immediately or within a short period of time, either by taking on an overtime shift or by adjusting their roster. 2. Clause 23 requires only that the employee be ready to perform work. It does not require the performance of work. 3. Even if ACCOs are not on call in the "traditional" sense, NSW Ambulance elected to implement and maintain the arrangements in place. It "deemed" ACCOs to be on call, as evidenced in the emails referred to at [31] and [32] above. Importantly, on their terms the emails served as a reminder of an existing state of affairs. By deeming ACCOs to be on call NSW Ambulance was, for the purposes of cl 23 of the Award, making clear what was required of them. 4. It was open to NSW Ambulance to interpret the Award so as to confer the Allowance on ACCOs under cl 23. The practice it chose to implement was and is not inconsistent with the Award. 5. Industrial instruments are generally made in light of the prevailing customs and working conditions in a particular profession or industry. It follows that they must not be interpreted in a vacuum divorced from those prevailing customs and working conditions.
2. Secondly, and in the alternative, the APA submitted that the Allowance should be implied into the ACCOs' contracts of employment as a matter of usage. The APA's written submissions traversed at some length relevant authorities on the question.
3. The APA raised two further matters for consideration. Firstly, it contended that in purporting to withdraw the Allowance, NSW Ambulance had failed to meet its obligations under cl 6 of the Award, which is in these terms: 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. …
4. Secondly, the APA drew the Commission's attention to the evidence of its witnesses as to the detriments that would be caused to the safety and effectiveness of NSW Ambulance's operations, and to their own financial position, if the Allowance was withdrawn.

The HSU

1. The HSU supported the relief sought by the APA. Its written submissions were largely confined to the contention that payment of the Allowance had become a term of employment through usage. Having reviewed relevant authorities the HSU concluded in its Supplementary Submissions as follows: "15. The payment of the 'on call allowance' has become established distinct from any obligation to work on call. While there are clearly misconceptions about what the allowance is for or how it operates, the payment is enshrined to be sufficient to establish a usage. 16. NSWA is responsible for the practice. It cannot claim that the practice has continued over their opposition. The respondent has by their conduct established that the payment is not mere inadvertence."
2. The HSU stated that these submissions were in effect put in the alternative to the APA's principal submission that ACCOs have an entitlement to the Allowance pursuant to the Award, and that the HSU did "not concede that the principle submission is not made out". [11] However, in its earlier Supplementary Submissions the HSU contended as follows: "2. Whilst some opinion evidence has been adduced about the purpose or basis for the payment this gives little assistance to the Commission. That the payment is of the same quantum as the on-call allowance is not persuasive evidence that the payment is for the working of on-call. 3. The respondent's case does not indicate that there was ever an award obligation to pay the allowance. The Commission should infer that the entitlement was never associated with the award provision."

The Health Secretary

1. The Health Secretary denied that the arrangements applying to ACCOs fell within cl 23 of the Award. She submitted as follows: 1. The nature of being on call involves answering calls which require input and/or the undertaking of work. On call "means a situation where an employee is recalled to duty after having completed a shift". [12] 2. Simply being offered discretionary overtime due to a shift vacancy in not "being on call". Similarly, a telephone call asking a person whether they are available to cover a shift due to an unplanned absence is not a common sense way to define "on call". 3. While a practice has developed over the years where employees would simply add weekly on-call into their timesheet which would then be approved by their supervisor, that does not translate into an entitlement to receive such allowance ad infinitum. It also does not follow that simply because the Allowance may have been incorrectly approved previously that the practice should continue after the issue has been sought to be corrected.
2. The Health Secretary further submitted: [13] "17. Ultimately this case requires the Commission to determine the meaning of on call. It would be a novel application of the principle to say an employee is on call because they receive a text offering them discretionary overtime which then may facilitate them earning larger amounts of income."
3. The Health Secretary also disputed that an entitlement to payment of the Allowance arose through usage. Her contentions included the following: 1. Payment of the Allowance offends the Award, as "[t]here is no payment available for on-call in the absence of performing on-call duties". [14] A term cannot be implied that would be contrary to the Award. 2. The term is not required to give business efficacy to the contracts of employment with ACCOs. The Award is clear on its face and does not require that terms be implied to as to enable it to be understood and applied. 3. That ACCOs may have had an expectation that the Allowance would be paid does not meet the requirement to imply the term into the contract.

Do ACCOs have an entitlement to the Allowance under the Award?

1. There was no dispute between the parties as to the approach that the Commission should take to the construction of the Award. The principles were recently summarised by the Full Bench in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [21]-[24]. I will not reproduce those passages, although I am guided by them.
2. The Health Secretary is correct to a point in submitting that this case requires the Commission to determine the meaning of "on call". However, the question is not to be determined in a pure or abstract sense. The question is how the term is to be construed on the facts of this particular case.
3. I do not accept the submissions of the Health Secretary that payment of an on call allowance under cl 23 of the Award is confined to situations where an employee "is recalled to duty after having completed a shift" [15] , or otherwise subject to the employee "performing on call duties" [16] , although I note that the Health Secretary further submitted that she "does not contend that the on call allowance is tied to the performance of work". [17] To be clear, the allowance is payable for time during which an employee who was rostered off duty is "required to hold himself or herself in readiness to answer a call". Nothing in cl 23 calls for the actual performance of work.
4. The Health Secretary drew attention to "recent cases" of the Commission in which the notion of being "on call" was held to involve the performance of some work, but cited only Health Services Union New South Wales v Health Secretary on behalf of Northern NSW Local Health District [2019] NSWIRComm 1055. That case, which at the time of this decision is under appeal, involved award provisions in terms quite different to those appearing in the Award. It does not stand as authority for the proposition that all on call provisions will require or anticipate the performance of work.
5. However, in Australian Paramedics Association (NSW) v Health Secretary (NSW Ambulance re Disturbance Allowance) [2020] NSWIRComm 1020 the Commission was required to construe the on call provisions of the Operational Ambulance Officers (State) Award, which are in the same terms as cl 23 of the Award. Kite CC held as follows: "[30] Ms Raper submitted that the subclause [23(a)(iii)] provided a protection from being required to hold oneself in readiness to respond to a call to return to duty, and the obligation to so, on more than 14 days of the roster cycle. In my view Ms Raper's interpretation is to be preferred. The 'call' referred to in subcl 23(a)(iii) is not a telephone call but a requirement to be on call with all the obligations that entails. It accords with the entitlement in the first sentence of subcl 23(d) requiring the employee's agreement to be recalled when not on call. … 37. Mr Latham did submit that the on call allowance and the payment for receipt of the telephone call struck an appropriate balance given the different circumstances applying. I have difficulty accepting that, bearing in mind that officers in receipt of the on call allowance are obliged to hold themselves in readiness to respond, and to respond if called. Officers not on call are free to do as they please - including not answering their phones or turning them off. In any event the clear language of subcl 23(d) indicates that officers recalled, whether on call or not on call, are to have the same benefits in respect of the recall. The on call allowance is not a benefit applicable to a recall and is payable whether or not the officer is recalled to duty." (Emphasis in original)
6. The Chief Commissioner's findings are inconsistent with the Health Secretary's submission that the allowance is payable only in return for the performance of work. They are, however, equally inconsistent with the APA's position that cl 23 of the Award contemplates the Allowance being paid simply through being available to take a telephone call offering the opportunity for overtime or a shift swap. The clause anticipates that the employee will hold himself or herself in readiness to be recalled to work, and respond to that call if it is made.
7. ACCOs (other than RLTCs) are not currently rostered to be on call. They are not obliged to accept offers to work overtime. The evidence of the APA's witnesses was that as ACCOs they would generally attempt to assist where possible, out of a sense of duty. However, none of the APA's witnesses has ever been compelled to work overtime against their wishes.
8. I accept the Health Secretary's submissions that the arrangements under which ACCOs work are not "on call" arrangements as that term is generally understood and not properly contemplated by the language of cl 23.
9. It is therefore necessary to consider the APA's further contention that despite the literal terms of the provision, NSW Ambulance has accepted that for ACCOs the reference to "on call" in cl 23 is to have a particular, essentially bespoke meaning. It was contended that it would not offend the Award for the parties to adopt a particular interpretation of its terms so as to provide employees with a benefit that on a stricter or more literal construction would be denied them.
10. As will be explored further below, Mr Whitwell deposed that on his understanding the Allowance is payable in return for an ACCO being on Whispir and taking calls from management outside of working hours offering them overtime or shift swaps to fill vacant shifts. He described the Allowance as being a "quasi-disturbance allowance", in place of the amount which might otherwise be payable under cl 23(a)(i) of the Award. [18] It was common ground that ACCOs have not claimed that payment, which was colloquially referred to as a "disturbance allowance", for taking calls when not on duty.
11. The email of 29 August 2016 referred to at [31] above stated that ACCOs are "deemed" to be on call, a contention to which Mr Whitwell apparently took no exception at the time. While he deposed that his own email of 10 October 2016 (see [32] above) was in reference only to the overtime allocation process, I have difficulty accepting that had the earlier email contained an error, he would not have attempted to correct it.
12. Further in this regard, Dr Coombes' email of 24 July 2019 (at [34] above) stated that "there no longer exists a requirement under the Award to continue the payment of the On Call allowance". Mr Whitwell's email of 30 October 2019 (at [39] above) described the entitlement to the payment of an on call allowance in a manner consistent with the construction of cl 23 for which the Health Secretary now contends, and stated that "this requirement no longer exists".
13. These emails suggest an acceptance by NSW Ambulance that there was at one point an entitlement for ACCOs to receive the Allowance under the Award. Other than for the period 1987 to 1988, there is no evidence that ACCOs have been required, to use the language in Mr Whitwell's email, "to engage in the activity of being rostered on call and hold themselves available to be recalled back to duty".
14. There was some evidence adduced that ACCOs have in the past received payment for a call out, which suggested that cl 23 did in fact apply to their arrangements. Only six instances were identified, although I acknowledge that the evidence was expressly tendered as a sample and was not intended to be exhaustive. In one case the payment was explained by Mr Whitwell by reference to there being no other code in the NSW Ambulance payroll system to which the payment could be assigned. The others were not explored in any great detail. It is not possible to draw any firm conclusions from this evidence.
15. All of these matters might support an argument that NSW Ambulance has historically and deliberately adopted a construction of "on call" for the purposes of cl 23 which was peculiar to the ACCOs, having regard to their particular working arrangements, but they fall short of establishing the fact. Moreover, even were it accepted that NSW Ambulance historically acted as if cl 23 applied, or indeed considered this to be the case, that is not determinative.
16. There are two impediments to a finding that cl 23 confers an entitlement to the Allowance on the ACCOs. Firstly, cl 23(a)(vi) provides that an employee will not be required to be on call during any part of a rostered day off duty. On its case, the APA contended that ACCOs are always "on call".
17. Secondly, the Health Secretary contended that the arrangements for the ACCOs offend cl 23(a)(iii) of the Award by requiring them to be on call more than 14 days in any 28 day period. While on its terms that provision does not prohibit an employee being on call for more than 14 days in any 28 day period, I accept that it generally supports the proposition that cl 23 does not contemplate an employee being perpetually on call.
18. I do not consider that the ACCOs have an entitlement to the Allowance arising under the Award.

Do ACCOs have a contractual entitlement to the Allowance?

1. It is common ground that ACCOs have no express contractual entitlement to the Allowance. There is no reference to the Allowance or the requirement to be on call, however defined, in their employment contracts.
2. The APA and the HSU each contended, however, that such an entitlement is to be implied as a matter of usage. Each union drew the Commission's attention to a number of authorities that considered the question of how a practice might through usage become a term of employment.
3. In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 the High Court stated as follows (at 236-238): "The circumstances in which trade custom or usage may form the basis for the implication of terms into a contract have been considered in many cases. The cases have established the following propositions: (1) The existence of a custom or usage that will justify the implication of a term into a contract is a question of fact: Nelson v. Dahl (1879) 12 ChD 568, at p 575. … (2) There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract: Young v. Tockassie [1905] HCA 17; (1905) 2 CLR 470, at p 478; Summers v. The Commonwealth [1918] HCA 33; (1918) 25 CLR 144, at p 148; Majeau Carrying Co. Pty Ltd v. Coastal Rutile Ltd [1973] HCA 22; (1973) 129 CLR 48, at pp 60-61. In the words of Jessel M.R. in Nelson v. Dahl, at p 575, approved by Knox C.J. in Thornley v. Tilley [1925] HCA 13; (1925) 36 CLR 1, at p 8: '(The custom) must be so notorious that everybody in the trade enters into a contract with that usage as an implied term. It must be uniform as well as reasonable, and it must have quite as much certainty as the written contract itself.' However, it is not necessary that the custom be universally accepted, for such a requirement would always be defeated by the denial by one litigant of the very matter that the other party seeks to prove in the proceedings. (3) A term will not be implied into a contract on the basis of custom where it is contrary to the express terms of the agreement: Summers v. The Commonwealth, at p 148; Rosenhain v. Commonwealth Bank of Australia [1922] HCA 41; (1922) 31 CLR 46, at p 53. One explanation of this principle is that, in so far as it relates to written contracts, it is simply an application of the parol evidence rule, by which extrinsic evidence is generally inadmissible to add to, vary or contradict the express terms of a contract which has been reduced to writing: Bacchus Marsh Concentrated Milk Co. Ltd (in liquidation) v. Joseph Nathan & Co. Ltd [1919] HCA 18; (1919) 26 CLR 410, at p 427; Hoyt's Proprietary Ltd v. Spencer [1919] HCA 64; (1919) 27 CLR 133, at pp 143-144. A more fundamental explanation is that the presumed intention of the parties, on which the importation of the custom rests (Produce Brokers Company Limited v. Olympia Oil and Cake Company Limited (1916) 1 AC 314, at p 324; cf. Treitel, The Law of Contract (1983) 6th ed., at p 164), must yield to their actual intention as embodied in the express terms of the contract, regardless of whether the contract is written or oral. It has sometimes been said that the implication of a term into a contract does not depend on the parties' intention, actual or presumed, but on broader considerations: Shell U.K. Ltd v. Lostock Garage Ltd (1976) 1 WLR 1187, at p 1196; (1977) 1 All ER 481, at p 487; Lister v. Romford Ice and Cold Storage Co. Ltd [1956] UKHL 6; (1957) AC 555, at pp 576, 579; Liverpool City Council v. Irwin [1976] UKHL 1; (1977) AC 239, at pp 257-258. But these statements are directed to situations in which the courts have been asked to imply terms amounting to rules of law applicable to all contracts of a particular class. The present case is of a different kind in which it may be necessary to speak of presumed intention. In matters of this kind, that phrase means no more than that the general notoriety of the custom makes it reasonable to assume that the parties contracted on the basis of the custom, and that it is therefore reasonable to import such a term into the contract. (4) A person may be bound by a custom notwithstanding the fact that he had no knowledge of it. Historically the courts approached this question in a rather different way. It was said that, as a general rule, a person who was ignorant of the existence of a custom or usage was not bound by it. To this rule there was a qualification that a person would be presumed to know of the usage if it was of such notoriety that all persons dealing in that sphere could easily ascertain the nature and content of the custom. It would then be reasonable to impute that knowledge to a person, notwithstanding his ignorance of it (see Halsbury's Laws of England 4th ed., vol.12, pars 467-468; Jones v. Canavan (1972) 2 NSWLR 236, at p 243). In this way, the issue of notoriety discussed in (2) above came to be co-extensive with the question of imputed knowledge. The achievement of sufficient notoriety was both a necessary and sufficient condition for knowledge of a custom to be attributed to a person who was in fact unaware of it. The result is that in modern times nothing turns on the presence or absence of actual knowledge of the custom; that matter will stand or fall with the resolution of the issue of the degree of notoriety which the custom has achieved. The respondent's contention that industry practices unknown to the assured are incapable of forming the basis of an implied term of the contract cannot be sustained."
4. In NSW Nurses' Association & Ors and South West Sydney Area Health Service [1994] NSWIRComm 147 the Full Bench stated: "The conclusions of fact reached by the Commissioner were not seriously challenged. It was clear that free car parking had been available at the hospital for many years. In 1989 reference was made to this by the Hospital in literature directed to nurses in a recruitment campaign. The challenge was whether in the circumstances it could be concluded that a custom and practice or usage in relation to car parking existed, the SWSAHS submitting it was rather a 'long-standing concession', which would not readily be included in an award by the Commission. The parties referred to various decisions of the former Industrial Relations Commission of New South Wales as to those issues. We take the view that the approach adopted by His Honour Justice Watson in In re Australian Fertilizers Ltd and the Australian Worker's Union, New South Wales Branch [1983] AR 237 should be followed. His Honour dealt with the concept of a 'usage' at pages 243-244: 'The Commission in Court Session in the Collective Responsibility Case [(1972) AR 80 at 98 and 99] approved the following passage from a judgment of Beattie J (as he then was) in the Furnace Demolishers Case [(1960) AR at 681-2]: The award applicable to the Newcastle Steel Works contains provisions as to the spell time to be allowed to demolishers, but the Port Kembla award is silent on the matter. An award does not necessarily contain all of the terms of the contract of employment between an employer and employee bound by it. They may agree on additional terms, and, moreover, a usage in a particular trade or occupation may become part of the contract and binding on the parties. In the present case the Union has referred to 'custom' and 'practice', but, in my view, to succeed in its claim it must establish the existence of what the law calls a 'usage'. The fact that a 'custom' or 'practice' has been alleged does not affect the validity of the Union claim if in fact a usage be established. If it were established, I would hold that the demolishers were entitled to refuse to work in the way they were directed, because it would have been part of their contract that they should not be required to work that way. If it were not established, I would have to consider whether the requirement made of them was reasonable. In Halsbury's Laws of England, 3rd ed., vol. XI, p.182, the following appears: Usage may be broadly defined as a particular course of dealing or line of conduct generally adopted by persons engaged in a particular department of business life, or more fully as a particular course of dealing or line of conduct which has acquired such notoriety, that where persons enter into contractual relationships, in matters respecting the particular branch of business life where the usage is alleged to exist, those persons must be taken to have intended to follow that course of dealing or line of conduct, unless they have expressly or impliedly stipulated to the contrary; that is to say that a rule of conduct amounts to a usage, if so generally known in the particular department of business life in which the case occurs, that, unless expressly or impliedly excluded, it must be considered as forming part of the contract. Dealing with the characteristics of a usage, Halsbury says at pp.184-186: Every usage, whether in respect of a particular trade, branch of business or occupation, and whether affecting land or not, must be notorious, certain, and reasonable, and it must not offend against the intention of any legislative enactment. Every usage must have acquired such notoriety in the particular market or branch of trade or in the department of business or amongst the class of persons who are affected by it, that any person in that branch or department or class who enters into a contract of a nature affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. Notoriety in this connection does not mean that it must be known to all the world, nor even that it should be known to the person against whom it is asserted; but it means that it must be well known at the place to which it applies, and be capable of ready ascertainment by any person who proposes to enter into a contract of which that usage would form part. Every usage must be certain. It must be uniform as well as reasonable, and in order to be incorporated as a term in a written contract it must have just as much certainty as the written contract itself. A usage is not, however, bad for uncertainty merely because it depends in its operation upon what a tribunal thinks to be reasonable. In my view the proper inquiry to be made in this case is whether, in relation to spell time, a usage as defined in these passages exists at the Port Kembla Steel Works.' His Honour (at page 244) then went on to observe that a practice, if found to be a usage alterable by agreement only: 'even so remains subject to any order or award made by the Commission pursuant to s.25 in settlement of the present dispute. Whether or not the practice should continue beyond a reasonable period in the present circumstances is, therefore, the more cogent issue.' We agree with that observation. Any practice, even one that forms a term or condition of a contract of employment, is ultimately subject to any order or award made by the Commission. When a dispute arises about a practice which falls to the Commission to determine in arbitration, whether any alteration to the practice is appropriate and if so, what the change should be, are the questions which must be determined on the particular facts of the case. One of the factors in such a consideration, although not decisive of itself, is whether a particular practice is a 'usage', as that term is properly understood. It follows that our decision in relation to the imposition of charges for car parking at this Hospital, is relevant only to the particular circumstances of the employees affected and not to other employees of the same or other employers elsewhere."
5. In Bale and Crown in Right of the State of New South Wales (Attorney-General's Department) (2000) 106 IR 354; [2000] NSWIRComm 248 Boland J stated: "69 The alternative proposition is that where a judge no longer requires the services of a particular tipstaff for whatever reason, short of misconduct on the part of the tipstaff, the 'crystallised custom' is that the tipstaff will be available to be placed on the staff of another judge or transferred to other duties. The term 'crystallised custom' appears to have been coined by Professor Sir Otto Kahn-Freund and is referred to in Byrne v Australian Airlines Ltd at 423. A 'crystallised custom' refers to custom or usage 'so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract': Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 236. If such evidence is presented, and there is no conflict with any express term of the contract, the term will be implied even if one or both parties had no knowledge of the custom when entering into the contract: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd at 237; B Creighton & A Stewart, 'Labour Law An Introduction' third ed., The Federation Press, 2000, 223. …"
6. The Health Secretary submitted as follows: [19] "8. As such, it is not necessary to address the issue of 'usage' in this matter as the payment clearly offends the Award. … 19. …The law does not operate to circumvent statutory provisions by implying a term based on an oral representation. If an oral representation was made which was binding (and of course here it is not) then such a term would be an express oral term. To imply a term only occurs to give a contract business efficacy. Such an argument here is quickly disposed of. Business efficacy comes from the Award. The Award permits payments to be made when criteria have been satisfied which would then entitle a worker to receipt thereof. There is no valid reason to pay the allowance under the Award unless and employee is actually on call. … 24. It is not the case that the implication of a term in this contract as asserted by the applicant would lead to the contract becoming 'workable'. Nor is it the case that the implication of a term to be paid the on call for not actually being on call was so obvious that the parties would have intended it to operate despite not being in a written contract. That must lead to the obvious conclusion that the payment is only to be made if an employee is actually on call."
7. Based on submissions made by Mr Nagle at the hearing, I understand that the "business efficacy" submission derives from Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337. [20] That case concerned a contention by the appellant that the implication of a term was necessary to give business efficacy to the relevant contract. The High Court's consideration of the appeal naturally involved an examination of the implication of terms on that basis. The Court did not preclude a term being otherwise implied.
8. Mason J stated at 345: "Of course, I am speaking of an implied term necessary to give business efficacy to a particular contract, not of the implied term which is a legal incident of a particular class of contract…"
9. Brennan J at 403 cited with approval the following passage from the judgment of Jordan CJ in Heimann v The Commonwealth (1938) 38 SR (NSW) 691, 695: "In order to justify the importation into a contract of an implied term which is not to be found in the express language of the contract when properly construed, and is not annexed by some recognised usage, or by statute or otherwise, it is essential that the express terms of the contract should be such that it is clearly necessary to imply the term in order to make the contract operative according to the intention of parties as indicated by the express terms. …" (Emphasis added)
10. In Hawkins v Clayton (1988) 164 CLR 539, 573 Deane J stated: "The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties." (Emphasis added)
11. This last passage was cited with approval by the plurality in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 422. It is relevant that in that case the High Court considered separately whether a term ought to be implied as necessary to give the contract business efficacy, and whether it ought to be imported on the basis of custom and usage. Con-Stan Industries similarly involved a consideration of the alternative arguments.
12. On the basis of the authorities referred to I do not accept that a term may only be implied into a contract if it is necessary to give it business efficacy. A term may otherwise be imported on the basis of custom or usage.
13. The contention by the APA and the HSU that a term allowing for payment of the Allowance ought to be implied into the ACCOs' employment contracts as a result of usage is put forward as an alternative to the submission that the entitlement arises under the Award. In large part, the submissions made by the Health Secretary on the question of usage are informed by her position regarding the putative Award entitlement. However, the fact that the entitlement may not arise under the Award does not prevent it arising otherwise. The Award is not the sole repository of the terms and conditions of employment for the ACCOs.
14. Further, having argued that the Allowance is not an Award entitlement, it is difficult to see how the Health Secretary can rely on the constraints in the Award to resist the implication of a term on the basis of usage. In this context, payment of the Allowance could only "offend" the Award if the payment were purported to be made pursuant to that Award, under arrangements inconsistent with it. The question is whether, outside of the Award, an entitlement to the Allowance might arise.
15. It is in this context that the HSU's submissions reproduced at [46] above have resonance. While the Allowance has historically been referred to as an "on call allowance", that has likely become a misnomer over time. Based on Mr Vernon's evidence, in 1987 and 1988 ACCOs (or their predecessors in name) worked to an on call roster, under what might be regarded as a more "traditional" on call arrangement of the kind described in the Disturbance Allowance case referred to at [54] above. However, at some stage there were operational changes which also altered those on call arrangements. Mr Vernon could only speculate as to why ACCOs continued to receive the Allowance. It may simply be that the continued reference to the Allowance as being an "on call allowance" derives from the period when the payment properly arose under the relevant instrument.
16. In the present case, as the HSU's submissions reproduced at [46] suggest, the description of the Allowance as being an "on call allowance" may well have misdirected the parties to the corresponding provision of the Award, when that was ultimately not the source of the entitlement.
17. To some extent this was borne out in Mr Whitwell's evidence when he acknowledged that while he told Ms Estreich that she would receive the on call allowance, this was "totally different to being on call in our environment". [21]
18. There was considerable evidence as to the extent to which the Allowance was known and accepted in the ACC. In summary: 1. Ms Braithwaite stated that she had been informed verbally of her on-call requirements by her training mentor and her educator and that these requirements were "simply well-known in the department". [22] 2. Ms Estreich stated that she was told by Mr Whitwell and others, before she accepted the ACCO position, that she would be entitled to the Allowance. 3. Mr Lilly stated that he was aware of the Allowance before accepting the ACCO position "as it is widely known that on-call is part of the work in [the] ACC". [23] 4. Ms Mountstephen stated that she has been paid the Allowance since her commencement in 2000, under an arrangement which "was well known at the time of application". [24] She had become aware of the Allowance through having worked in the unit in an alternative duties capacity. 5. Mr O'Riordan stated that he had been informed by his buddy trainer that on call was a requirement of the position. He stated that he had been informed by his manager and other staff of the on call requirements and to add it to his timesheet submission fortnightly. 6. Mr Southers stated that the on call arrangements for ACCOs and the payment of the Allowance had been discussed in his interview for the ACCO role with Mr Whitwell.
19. Mr Whitwell, who has been the Manager of the ACC since February 2011, was aware that ACCOs were claiming the Allowance through their timesheets and had historically authorised that payment. [25] Under cross-examination Mr Whitwell deposed as follows: [26] "Q. And when you started in 2011 you became aware of the fact that the ACCO's were receiving an on call allowance; that's correct, isn't it? A. Correct. Q. And you were told that by the previous manager? A. Correct. Q. And they explained to you that that's the way that the system operated in this particular centre; that's correct? A. Correct. Q. And it was explained to you that the purpose of those ACCO's being on call was that they could create a pool of people which you could contact at any time so as to fill various requirements, be they shortages, drop shifts, public requirements, any reason that required additional personnel when they were off shift, you could utilise those people? That was the purpose? A. We could contact them, correct. Q. Yes, so you understood that the purpose of the allowance, as it operated in the centre that you were managing, was on the basis that they could all be contacted? A. Correct. Q. And you also understood that the longstanding practice there that was agreed between the Ambulance Service and the ACCO's was that there was some discretion, some limited discretion, about the acceptance of call outs, if I can phrase it that? I don't mean call out under the award in terms of the payment, I'm just using that as a generic term, that responding to a call? You understood that because that was put to you, wasn't it? A. Well, not - so answering the phone. Not responding to a call, answering the phone. Q. Correct? A. They were receiving an allowance for the privilege of ringing them, correct. Q. Well, you understood that and you accepted that, didn't you? A. Yes, correct. Q. So you knew full well and accepted and complied with that process, that's correct, isn't it? A. Yeah." And further: [27] "Q. You had put to her as one of the terms of the offer that she would receive, that is Ms Estreich would receive, the on call allowance? A. Correct, yes. Q. And she accepted the job, didn't she? A. Yes. Q. So, as far as your understanding of the offer you made, the offer was, 'As an ACCO, you will get an on call allowance'? A. Yes. Q. Correct? A. Yes. Q. And you didn't stipulate any limitations to how that would operate, did you? A. No, none whatsoever. Q. Because what you relied on was past history? A. Correct." And further: [28] "Q. Sorry, Mr Whitwell, we got side tracked there. But you would expect and you would reasonably expect that when you say to somebody, 'You're going to get an on call allowance', they wouldn't construe that to be some sort of allowance completely unrelated to being on call. You would expect-- A. That's a reasonable expectation, yes. Q. So, then it would follow that it's a reasonable expectation that when you say you're going to get an on call allowance there is some expectation that they're actually on call, in some form or other? A. Yes, yeah. Q. And the way it operated in your establishment, that is in your centre, that they didn't need to be on call strictly in accordance with the terms of the award? That's correct, isn't it? That's the way you understood it operated? A. Well, yeah, correct. Q. Because if you understood that it operated differently, you would have said to each and every ACCO, 'Hang on a minute, why am I paying you the on call allowance?' That's correct, isn't it? A. No because I knew I was paying the on call allowance because it was by default. It was partly - as I said, my forefathers advised me that that was the custom and practice and therefore I paid it. Q. And you accepted that, didn't you? A. Yes. Q. And you didn't quibble with that, did you? A. No. Q. You didn't have a problem with it, did you? A. Well, that was the work practice at the time." And further: [29] "Q. And Ms Estreich's expectation of receiving the allowance is the same when you told her in the first place as it would have been today if she was still an ACCO? A. Correct, yes. Q. And you also made the same offer to Mr Southers. That's correct, isn't it? A. All staff have been provided that offer. Q. So all of them? A. Yeah. Q. Whether it be by you or other members of your staff at the time? A. Correct, yes. Q. Would have put to each of them on exactly the same terms, 'You're all getting the'-- A. That would be the advice, 'You will be receiving the on call allowance'. Q. And then the process would work that so the payroll would know that you were entitled to it, you would tick the box? A. Correct. Q. That's correct, isn't it? A. Yep. Q. And that's all the tick the box was for? It was for nothing else? A. Yeah."
20. In contrast, Mr Carlisle and Ms Couldwell stated that they were unaware of the Allowance and the associated arrangements prior to commencing working as an ACCO. I do not consider that this precludes a finding of notoriety in respect of payment of the Allowance.
21. Mr Vernon deposed that the Allowance "is not and never has been, a payment made to Paramedics to hold themselves available to answer a telephone call to accept/decline roster changes or offers of overtime". [30] However, under cross-examination he accepted that he had no direct knowledge of the ACCOs' arrangements other than in respect of the period 1987 to 1988. His statement as to what the Allowance was not intended to be paid for was clearly influenced by his opinion as to how the Award operates. As already stated, I am not assisted by that opinion.
22. As is clear from the passages cited at [86] above, Mr Whitwell acknowledged that the Allowance has historically been paid so that ACCOs could be contacted, including "answering the phone" if called. In his words, ACCOs received the allowance "for the privilege of [managers] ringing them". He further deposed that he regarded it as a condition of payment of the Allowance that ACCOs be on Whispir. He accepted that payment was not conditional on ACCOs accepting any overtime or shift swaps offered to them.
23. With the exception of Mr O'Riordan, whose evidence suggested that he considered himself obliged only to accept text messages, all of the APA's witnesses gave evidence consistent with Mr Whitwell as to the purpose for which the Allowance has historically been paid and their resultant obligations. Indeed, the APA's witnesses consistently deposed that they considered that they had an additional, if only moral obligation to assist through performing overtime or swapping shifts.
24. On the evidence, I consider that payment of the Allowance meets the requirements set out in the authorities referred to at [70]-[72] above to be imported as an entitlement into the ACCOs' contracts of employment on the basis of usage.
25. It is therefore necessary to consider the Health Secretary's submission to the effect that s 116A of the Health Services Act 1997 (NSW) precludes the importation of that term. That section relevantly provides as follows: 116A Salary, conditions etc of staff employed in the NSW Health Service (other than senior executives) (1) The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law. …
26. Under s 21 of the Health Administration Act 1982 (NSW) the Health Secretary may, by instrument in writing, delegate her functions under s 116A of the Health Services Act to any person. To the extent that representations regarding payment of the Allowance may have been made by Mr Whitwell or other managers, there is no evidence that any of them had the necessary delegation from the Health Secretary to fix conditions of employment under s 116A of the Health Services Act. Mr Whitwell deposed that he did not have such a delegation.
27. The APA contended that s 116A did not preclude the implication of terms by usage. It relied on the words "in so far as they are not fixed by or under any other law" appearing in s 116A.
28. The Health Secretary, in reliance on New South Wales Nurses' Association v Sydney Local Health District [2013] NSWIRComm 28 ("Nurses' case"), submitted as follows: "25. …The test is not whether s 116A explicitly excludes the payment of an amount being ordered due to usage. Such [an] approach would make the drafting of law impossible (that is where a closed list of matters is excluded because the statute says so). Section 116A vests a power to set terms and conditions in a person or class of persons. Mr Whitwell (or others who preceded him) have not been demonstrated to have had the power to set terms and conditions. It is commonly the case that the Secretary of a government department is vested with power to exercise functions under the State. If it were the case that pay and conditions were able to be agreed to by persons well down the management hierarchy then the setting of terms and conditions would become fraught with inconsistency. That point was expressly acknowledged by Boland P at [102] in the Nurses' case where his Honour noted that the purpose of s 116A of the Health Services Act is to provide consistency in employment across the organisation as a whole."
29. The Nurses' case was an appeal from a decision of Boland P in New South Wales Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52. His Honour had to determine whether representations made to nurses that they would not be required to work night shift were contractual and binding on the respondent. He found that they were not, as those who had made the representations were not delegated the power under s 116A of the Health Services Act to set terms and conditions of employment.
30. However, it is necessary to see his Honour's comments regarding "consistency", to which the Health Secretary referred, in context as follows: "102. Moreover, the notion of Directors of Nursing and Midwifery Services, Directors of Nursing or Nursing Unit Managers having a general authority to negotiate contracts or variations to contracts fixing employment conditions for individual nurses is inconsistent with the scheme of the Health Services Act. It is the Director-General who may, subject to s 116A(1), fix the salary, wages and conditions of employment of staff subject to that function, or part of it, being delegated in accordance with s 21 of the Health Administration Act. A purpose of such a scheme must be to ensure a high measure of consistency in a large and diverse public sector organisation."
31. Consistent with the case before him, Boland P was addressing the potential mischief that would be caused if executives in the Health Service were seen as having power to set terms and conditions of employment without the necessary delegation. Neither the President nor the Full Bench on appeal were required on the facts of that case to address the meaning of the words "in so far as they are not fixed by or under any other law" in s 116A.
32. If the case were confined to the question as to whether the ACCOs could not only rely on but enforce the representations made to them by Mr Whitwell and others, the Commission would be considering the express terms of their contracts. In that event, the Nurses' case would have more direct relevance. However, the implication of a term through usage is not dependent on representations having been made by people with authority to make them. As the HSU submitted, "[by] its very nature the issue of delegation is irrelevant to the enquiry into the presence and nature of a usage". [31]
33. In Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28 the High Court stated at 635-636: "If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred: Smorgon v. Australia and New Zealand Banking Group Ltd. See also Hamilton v. Oades; Potter v. Minahan; Wade v. New South Wales Rutile Mining Co. Pty. Ltd.; and Baker v. Campbell." (Footnotes omitted)
34. In NSW Nurses and Midwives' Association (o/b Craig) v Western Sydney Local Health District [2016] NSWIRComm 1005 Newall C stated: "25. Of course the award is to be interpreted, as is perfectly clear on the authorities, in the same way as in a statute, but part of that is this; that the ordinary canons of statutory construction as adverted to in the authorities to which the respondent helpfully takes the Commission presume that the general law and common law doctrines specifically are not overridden by the Parliament without the very clearly expressed intention to do so and there is a range of authorities for that going back to Potter v Minahan (1908) 7 CLR 277."
35. Applying these principles I see no reason why the words "in so far as they are not fixed by or under any other law" appearing in s 116A of the Health Services Act could not extend to terms and conditions "fixed" by reference to the common law principle of usage.
36. The Health Secretary submitted as follows: [32] "13. It is simply not credible that an allowance of nearly $5000 per year be paid to employees simply so they are in a position to be offered overtime. Especially when there is no requirement to then accept the overtime."
37. Whether the payment is credible or not, is not the question. The simple fact of the matter is that it is a payment which has been made to ACCOs knowingly and openly for more than 30 years. It is not now open to the Health Secretary to argue that it can simply cease to pay the Allowance on the basis that the historical payments "should not have been approved". It is enough that they were approved, for decades.
38. I am satisfied that the Allowance is an entitlement of the ACCOs' contracts of employment, arising from usage.

Alleged failure to consult

1. The evidence does not establish that NSW Ambulance has failed to meet its obligations to consult under cl 6 of the Award. While the language of the email of Dr Coombes of 24 July 2019 referred to at [34] above makes reference to a determination having been made, it expressly refers to the "proposed date" on which payment of the Allowance would cease; that a staff meeting would be held to allow affected employees to "discuss any concerns"; and that the APA and HSU would be consulted.
2. There is only limited evidence, all adduced by the Health Secretary, regarding the consultation which ensued. The proposed cessation of payment of the Allowance was deferred pending consultation. NSW Ambulance and the unions made requests for information of the other, without either apparently having received a response. In those circumstances, there is an insufficient basis on which to find any failing by NSW Ambulance of its obligations to consult.

Alleged wider ramifications

1. The Health Secretary submitted as follows: "31. The Commission should not make the recommendation as sought by the applicant. Such a recommendation would have wider ramifications for the Respondent and set a precedent in circumstances where other employees covered by both this Award and other Award provisions do not receive on call payments simply for being contacted to be offered overtime."
2. I do not accept these submissions. I have found that the entitlement of the ACCOs to receive the Allowance derives from usage, not from the Award. By its very nature that finding reflects the particular circumstances of the ACCOs and the way that they have been treated over many years.
3. An employee who is "contacted to be offered overtime" in any other circumstances could not necessarily expect to receive an on call allowance, particularly if that allowance would be payable under a provision in substantially the same terms as cl 23 of the Award. Whether or not such an entitlement arises would need to be determined having regard to the particular facts of that case, as was the situation in the present matter.

Relief

1. The APA seeks the following recommendations: "a. That the Respondent continue to pay ACCOs the weekly on call allowance per Item 4 of Table 2A - Allowances, of Part B, Monetary rates of the Award, for as long as ACCOs continue to work under the existing on call arrangements. b. That any proposal to change the existing ACCO on call arrangements be subject to genuine consultation between the parties to the Award in accordance with cl 6 of the Award. c. That the on call arrangements should not be replaced by arrangements for filling short term vacancies that would, in the circumstances, require or pressure ACCOs to work de facto on call arrangements without entitlement to the on call allowance."
2. To some extent, my finding that the entitlement to the Allowance arises as a matter of usage makes any recommendation unnecessary. However, the APA pressed for the recommendations and I believe that there is merit in clarifying the nature of the entitlement.
3. For the reasons set out earlier in this decision, in respect of proposed recommendation (a), it is not appropriate to frame any recommendation by reference to an "on call allowance" under "on call arrangements". This only invites further confusion and debate as to whether the arrangements are properly "on call" or not. Also as stated previously, the only conditions that NSW Ambulance has attached to payment of the Allowance is that the ACCO be on Whispir and take telephone calls from their manager to ascertain if they are available to fill shift vacancies at short notice. These are relevantly the current "arrangements".
4. In respect of proposed recommendation (b), the Health Secretary did not suggest that cl 6 was not enlivened by the proposal to cease paying the Allowance. Rather, it was contended that there had been no breach of the provision. It is my view that if NSW Ambulance sought to change the current arrangements so as to deprive ACCOs of the entitlement to the Allowance, and leaving aside the possible operation of cl 46 of the Award, that would be a change that would "significantly affect employees covered by the Award", requiring genuine consultation within the terms of cl 6. Compliance with the Award is mandatory. It is both superfluous and inappropriate for the Commission to recommend that the parties comply with their obligations of the Award. I decline to make that recommendation.
5. I similarly decline to make proposed recommendation (c). Again, there is the risk for confusion as to what is meant by "on call arrangements", and even more so as to what might constitute "de facto on call arrangements".
6. I propose to limit the recommendation to ACCOs employed in that position as at the date of this decision. For the sake of certainty I will expressly exclude ACCOs performing RLTC functions.
7. Finally, I observe that this decision does not, and was not intended by the parties, to finally determine all issues arising from the Notification. The Commission has still to deal with the second recommendation set out at [7] above. I will program the matter for directions.

Orders and recommendation

1. Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) I order that: 1. there be no publication of any documents, or of their contents, relating to the earnings of any individual, including particularly the tax file numbers of those individuals; and 2. the documents relating to the earnings of any individual not be contained in the publicly-available portion of the Commission's file.
2. I recommend that NSW Ambulance continue to pay to each ACCO employed as at the date of this decision a weekly allowance equal to that set out in Item 4 of Table 2A - Allowances of Part B, Monetary rates of the Award, provided that: 1. the ACCO is on Whispir and is required to take telephone calls from their manager to ascertain if they are available to fill shift vacancies at short notice; and 2. this recommendation will not apply to ACCOs performing the duties of an RLTC who, the parties agree, are entitled to receive an on call allowance in accordance with cl 23 of the Award. Damian Sloan Commissioner

Endnotes

1. Tcpt 15 November 2020 (Recommendations), p 2
2. Tcpt 4 December 2019, p 19 (34-49)
3. The witness deposed that for work purposes she uses the surname "Estreich". She will be referred to by that name in this decision.
4. Tcpt 31 January 2020, p 49 (24-25) per Mr Nagle
5. Exhibit A10 at par 5
6. Exhibit R3 at par 5
7. Exhibit R3 at par 11
8. There is, however, no RLTC classification under the Award and this is, I understand, to be the subject of the proceedings in respect of the second recommendation sought in the Application.
9. Exhibit R3 at par 28
10. Exhibit R3 at par 34
11. HSU Further Submissions at par 2
12. Outline of Submissions of Respondent (filed 10 January 2020) at par 17
13. Outline of Submissions of Respondent (filed 17 February 2020) at par 17
14. Outline of Submissions of Respondent (filed 17 February 2020) at par 6
15. Outline of Submissions of Respondent (filed 10 January 2020) at par 17
16. Outline of Submissions of Respondent (filed 17 February 2020) at par 6
17. Outline of Submissions of Respondent (filed 17 February 2020) at par 14
18. Tcpt 31 January 2020, p 60 (48)
19. Outline of Submissions of Respondent (filed 17 February 2020)
20. See also BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 287; [1977] HCA 40
21. Tcpt 31 January 2020, p 54 (20)
22. Exhibit A4 at par 5
23. Exhibit A5 at par 8
24. Exhibit A7 at par 4
25. Exhibit R3 at par 16
26. Tcpt 31 January 2020, pp 51(18) - 52(8)
27. Tcpt 31 January 2020, pp 54(41) - 55(8)
28. Tcpt 31 January 2020, pp 56(39) - 57(19)
29. Tcpt 31 January 2020, p 59 (22-48)
30. Exhibit R2 at par 17
31. HSU Further Submissions in Reply at par 6
32. Outline of Submissions of Respondent (filed 10 January 2020) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2020