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[2026] NSWIRComm 19
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-09-29
Chin J, Vice President Kite AJ, Acting Deputy President Senior Commissioner Constant
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Australian Salaried Medical Officers’ Federation (New South Wales) v Health Secretary [2026] NSWIRComm 19
Hearing dates: 28 September 2026
Date of orders: 29 September 2026
Decision date: 29 September 2026
Jurisdiction: Industrial Relations Commission
Before: Chin J, Vice President
Kite AJ, Acting Deputy President
Senior Commissioner Constant
Decision: The Commission orders that:
(1) ASMOF is to file and serve a clean Word version of the new interim award that reflects this decision by 4:00pm on 1 October 2026.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Remuneration — Where special circumstances justify extension of payment of temporary attraction and retention allowance for psychiatry staff specialists — New interim award made by consent
Legislation Cited: Health Services Act 1997 (NSW)
Industrial Relations Act 1996 (NSW), ss 16, 17, 23,146,156
Interpretation Act 1987 (NSW), s 36
Cases Cited: Health Secretary, Ministry of Health v Australian Salaried Medical Officers’ Federation (New South Wales) (No 2) (2025) 348 IR 131; [2025] NSWIRComm 27
Re Unilever Australia Ltd, AP Foods (Sydney) Pty Ltd, AWU and TWU - various proceedings re Proposed Sale of Marrickville Site (2005) 141 IR 298; [2005] NSWIRComm 3
Texts Cited: Psychiatry Staff Specialists Attraction and Retention (State) Interim Award 2025
Category: Principal judgment
Parties: Australian Salaried Medical Officers’ Federation (New South Wales) (Applicant)
Health Secretary (Respondent)
Representation: Counsel:
R Kumar (Applicant)
J Mattson (Solicitor) (Respondent)
Solicitors:
Hall Payne Lawyers (Applicant)
Bartier Perry (Respondent)
File Number(s): 2026/00388609
Publication restriction: Nil
We have determined to extend the entitlement of psychiatry staff specialists to payment of the temporary attraction and retention allowance provided in the Psychiatry Staff Specialists Attraction and Retention (State) Interim Award 2025 (the Interim Award). The period of this extension will be limited to the resolution of the related proceedings for the making of new awards covering all doctors employed in NSW Health, including all staff specialists in matter numbers 2023/00204348, 2025/00135304, 2025/00135421 and 2025/00135332 (the Medical Award Proceedings).
The determination is made with the consent of the parties.
For the reasons given below, we propose to implement the conditional extension of this entitlement by making a new interim award in substantially the same terms as the Interim Award.
We do so expressly on the condition that the Commission will rescind the new interim award with effect on and from the operative date of any new award covering staff specialists employed by the Health Secretary, including psychiatry staff specialists, to be made by the Commission in resolution of the Medical Award Proceedings.
The Interim Award came into effect on 3 October 2025. It provided for a temporary allowance of 10% calculated on base salary, the Special Allowance, and the Level 1 Private Practice Allowance to be paid to all psychiatry staff specialists for a period of 12 months.
The temporary allowance was justified by a special case advanced by the Australian Salaried Medical Officers’ Federation (New South Wales) (ASMOF). In Health Secretary, Ministry of Health v Australian Salaried Medical Officers’ Federation (New South Wales) (No 2) (2025) 348 IR 131; [2025] NSWIRComm 27 (“Psychiatry Staff Specialists (No 2)”), we determined that the temporary allowance should be payable for the purpose of attracting and retaining psychiatry staff specialists. The need to attract and retain this cohort of employees arose in circumstances where an acute shortage of psychiatry staff specialists was causing a deterioration both in their working conditions and in the quality of mental health care in the public health system in New South Wales.
The genesis of the dispute which resulted in the making of the Interim Award was the mass resignation of over 180 psychiatry staff specialists from their employment at public hospitals across New South Wales. We granted the temporary allowance with the intention of supplementing an existing 10% allowance which the Ministry of Health paid to psychiatry staff specialists as an interim retention strategy to encourage them to rescind or delay their resignations or otherwise remain employed with NSW Health. The Health Secretary continues to pay this allowance pursuant to Determination No 52 of 2024 made under the Health Services Act 1997 (NSW).
The Interim Award was also made in the context of a broader claim brought by ASMOF for a new comprehensive award covering and providing wage increases for all doctors employed in NSW Health, including all staff specialists. At the time of our determination in Psychiatry Staff Specialists (No 2), we anticipated that it was unlikely that the broader doctors case would be determined until “well into 2026”. [1]
Notwithstanding some significant differences in the nature of the interim relief sought for psychiatry staff specialists when compared to ASMOF’s broader claim, [2] the temporary allowance for this cohort was clearly contemplated as a stop-gap measure pending the resolution of ASMOF’s claim for a comprehensive award. Given the potential for a degree of overlap between the interim relief granted for psychiatry staff specialists and the broader doctors case, we granted the temporary allowance explicitly on the condition that it would be “absorbed into any subsequent increase to the salary rates of psychiatry staff specialists that is attributable to attraction and retention to be determined by the Commission”: Psychiatry Staff Specialists (No 2) at [62]-[64].
Since the making of the Interim Award, the Medical Award Proceedings were arbitrated before the Full Bench for 32 days between 26 November 2025 and 26 May 2026, with the parties concluding their submissions on 26 June 2026. The decision of the Full Bench in resolution of those proceedings is currently reserved.
In these circumstances, the Registrar wrote to the parties on 21 August 2026 advising that the Commission proposes, on its own initiative, to rescind the Interim Award on and from 4 October 2026. The parties were invited to indicate their position on the proposed rescission, whether by consent or otherwise, by 21 September 2026.
“1 Clause 3.1 be deleted and replaced with: “This award commenced on 3 October 2025. The nominal term of this award is 12 months. In accordance with section 16(1) of the Industrial Relations Act 1996 (NSW), this award continues in force after the expiry of its nominal term until it is rescinded by the Commission.”
2 Clause 6.1 be deleted and replaced with: “From the first full pay period on or after 3 October 2025, and for so long as this award continues in force, a Psychiatry Staff Specialist will be paid the Psychiatry Attraction and Retention Allowance.”
3 In the alternative to items 1 and 2, that the operation of clauses 3.1 and 6.1 be extended to the date on which the Commission makes the new Award that will apply to employees of the Respondent employed as Staff Specialists, including Psychiatry Staff Specialists, with liberty to the parties to apply.”
ASMOF contends that the shortage of psychiatry staff specialists that the allowance was designed to address persists; and it would not be in the public interest to reduce their remuneration by 10% before the Commission has determined the Medical Award Proceedings.
By correspondence received on 21 September 2026, the Health Secretary reserved her position on ASMOF’s claim that the shortage of psychiatry staff specialists persists. The Health Secretary otherwise:
“… does not, in principle, object to the continuation of the interim award pending the outcome of the substantive Medical Awards arbitration. Such an extension would maintain the existing industrial framework and may mitigate the potential for industrial disharmony that could otherwise arise in the interval between the expiry of the interim award and the Commission's decision in the substantive arbitration. Accordingly, the Health Secretary would oppose any proposed interim award that extends beyond the date of effective date of the Full Bench’s substantive decision.”
Pursuant to s 156(5) of the IR Act, the Full Bench referred ASMOF’s application to Senior Commissioner Constant for conciliation which took place on 28 September 2026.
As a result of this conciliation, the Senior Commissioner reported to the Full Bench that the parties had reached agreement to resolve the variation application by asking the Full Bench to make a new interim award in almost identical terms to the Interim Award which is to commence operation on and from 4 October 2026.
The Health Secretary’s consent is provided according to the terms set out in [15] above, and without conceding that the shortage of psychiatry staff specialists persists.
Both parties accept that the new interim award will be rescinded by the Commission with effect on and from the operative date of any new award covering staff specialists to be made in resolution of the Medical Award Proceedings.
As directed by the Senior Commissioner, following the conciliation conference on 28 September 2026, the parties provided to the Vice President’s chambers amended short minutes of order in the following terms:
“BY CONSENT, THE COMMISSION ORDERS THAT:
- The Commission will make a new interim award in the same terms as the Psychiatry Staff Specialists Attraction and Retention (State) Interim Award 2025 (Replacement Interim Award), subject to the following variations:
a. In the title, delete “2025” and replace with “2026”;
b. In clause 1, delete “2025” and replace with “2026”;
c. In clause 3.1, delete “2025” and replace with “2026”;
d. In clause 6.1 deleted “2025” and replace with “2026”;
e. In clause 6.1 delete the words “for a period of 12 months”; and
f. In Part B, delete Table 1 and replace it with the following table:
| Staff Specialist Award Level | Frequency | Psychiatry Attraction and Retention Allowance (ffppooa 3 October 2026) (1.0 FTE) | | 1 | Annual | $27,835 | | 2 | Annual | $29,463 | | 3 | Annual | $31,090 | | 4 | Annual | $32,722 | | 5 | Annual | $34,350 | | Senior | Annual | $37,607 | | Post graduate fellow | Annual | $22,951 |
THE COMISSION NOTES THAT:
- The undertaking of the Applicant recorded at [57] of Health Secretary, Ministry of Health v Australian Salaried Medical Officers’ Federation (New South Wales) (No 2) [2025] NSWIRComm 27, and that the Respondent confirms the payment of the allowance under Determination No 52 of 2024 will continue while the Replacement Interim Award continues in force.
- The Replacement Interim Award will be rescinded on the operative date of any award covering Staff Specialists made in the Medical Award Proceedings (Matters 2023/00204348, 2025/00135304, 2025/00135412 and 2025/00135332).”
(Emphasis in original.)
We are satisfied that, for the purposes of s 16(4) of the IR Act, special circumstances justify the making of a new interim award. We emphasise three matters. Firstly, we accept the Health Secretary’s contention that an extension of the temporary allowance until the resolution of the Medical Award Proceedings maintains the existing industrial framework and may mitigate the potential for industrial disharmony that could otherwise arise in the interval between the expiry of the Interim Award and the Commission's decision in the substantive arbitration.
Secondly, this extension of the temporary allowance is consistent with the intention of the Full Bench determination in Psychiatry Staff Specialists (No 2) in providing stop-gap relief pending the resolution of the Medical Award Proceedings.
Thirdly, notwithstanding the Commission’s prior authority on the continued operation of interim awards beyond their nominal term referred to in [10] above, we acknowledge that the terms of s 16(4) of the IR Act arguably have the effect of confining the operation of an interim award to a period not exceeding 12 months. For the avoidance of any doubt as to the legal effect of the obligation to pay the temporary allowance for a period beyond 3 October 2026, we consider that the extension should be implemented by the making of a new interim award and the formal rescission of the Interim Award.
The award will have a nominal term of 12 months: IR Act, s 16(2).
Consistent with our assessment in making the Interim Award, we are satisfied that extending the payment of the allowance for the period contemplated in this decision is:
in the public interest; and
unlikely to have any significant adverse economic impacts: IR Act, s 146(2).
We are also satisfied that:
the new interim award will continue to provide equal remuneration for men and women doing work of equal or comparable value: IR Act, s 23; and
it is not contrary to the public interest to rescind the Interim Award on the making of this award: IR Act, s 17(3)(d).
Accordingly, with one qualification, we determine to make a new interim award in the terms proposed by the parties in Order 1 of their draft short minutes of order set out in [20] above. The qualification is that the proposed Orders 1(c) and 1(d) should have the effect of replacing “3 October 2025” in clauses 3.1 and 6.1 respectively with “4 October 2026”. Section 36(1) of the Interpretation Act 1987 (NSW) provides that, in any “instrument”, “a period of time, dating from a given day … is prescribed … for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event”. On this basis, we consider that the nominal term of the Interim Award expires immediately 3 October 2026, and that the new interim award should commence on and from 4 October 2026. The reference in the heading of the final column of Table 1 in proposed Order 1(f) should also be amended to read: “Psychiatry Attraction and Retention Allowance (ffppooa 4 October 2026)”.
We do so without making any formal order to this effect.
The Commission orders that:
ASMOF is to file and serve a clean Word version of the new interim award that reflects this decision by 4:00pm on 1 October 2026.
**********
Psychiatry Staff Specialists (No 2) at [30].
Psychiatry Staff Specialists (No 2) at [58]-[61].
See Re Unilever Australia Ltd, AP Foods (Sydney) Pty Ltd, AWU and TWU - various proceedings re Proposed Sale of Marrickville Site (2005) 141 IR 298; [2005] NSWIRComm 3 at [11].
Psychiatry Staff Specialists (No 2) at [51].
Noting that the relevant part of the amended short minutes of order set out at [20] above contains an error in identifying the correct matters associated with the Medical Award Proceedings: the reference to matter number “2025/00135412” should instead refer to “2025/00135421”.
Australian Salaried Medical Officers’ Federation (New South Wales)
Health Secretary
We also noted ASMOF’s acceptance that the Commission would rescind the Interim Award at the end of its 12-month term, subject to the resolution of any application ASMOF may wish to make at that time to maintain the operation of the award: Psychiatry Staff Specialists (No 2) at [53]. We did so in reliance on the Commission’s prior authority [3] on the proposition that the ameliorative effect of s 16(1) of the Industrial Relations Act 1996 (NSW) (IR Act) – which provides that an award applies after its “nominal term” until rescinded by the Commission – applies to interim awards in the same way as it applies to awards of the usual kind so an interim award continues to have legal effect notwithstanding that its nominal term may have concluded. [4]
Upon receipt of the Word version of the new interim award pursuant to the order we make at [31] below, the Full Bench will make orders in chambers making the new interim award in the terms as filed, and rescinding the Interim Award on and from 4 October 2026.
In addition, we are content to note:
ASMOF’s undertaking recorded in Psychiatry Staff Specialists (No 2) at [57], and that the Health Secretary confirms that the payment of the allowance under Determination No 52 of 2024 will continue while the new interim award remains in force; and
the Commission’s intention to rescind the new interim award on and from the operative date of any award covering staff specialists to be made in the Medical Award Proceedings. [5]