This decision concerns the rescission of the Crown Employees (Medical Officers) Award 2022.
[2]
On 1 July 2024, the Industrial Relations Secretary (Secretary) filed an application pursuant to s 10 of the Industrial Relations Act 1996 (NSW), for the making of a new award, which would replace the Crown Employees (Medical Officers) Award 2022, to cover medical officers employed by the New South Wales Police Force and the Health Care Complaints Commission. The application named the Australian Salaried Medical Officers' Federation (New South Wales) (ASMOF) as the respondent.
Following discussions between the parties, on 6 September 2024, the Secretary filed an amended application seeking to have the Commission make the proposed Crown Employees (Medical Officers) Award 2024 (Consent Award) for a three-year term ending 30 June 2027, in agreed terms.
The application sought, as a consequence, that the Commission rescind the existing award known as the Crown Employees (Medical Officers) Award 2022 (Current Award), pursuant to of the
In the course of proceedings, it became clear that there were no employees covered under the Current Award, but that the parties sought to replace it with the proposed Consent Award to ensure that if employees were to be engaged there would be an award setting conditions that were fair and reasonable.
I sought the parties' assistance to better understand the utility of making a further award in circumstances where there were no employees to whom it would apply. I also identified a number of deficiencies in drafting that needed to be addressed to make its coverage clear. That led to two further amended applications and the filing of further evidence in the form of affidavits by Kathryn Knevitt, Manager of Public Sector Industrial Relations.
When this matter last came before me on 1 May 2025, I expressed my continuing concern as to the utility of the application, notwithstanding the additional evidence that had been filed, which rose no higher than two short conversations with unnamed persons at New South Wales Police Force and the Health Care Complaints Commission to the effect that the award did not currently apply to anyone but may do so in the future, should a medical officer be employed. In those circumstances, and with some hesitation, given the opportunities previously granted to the applicant, I determined to give the applicant one further opportunity to put on evidence that would satisfy me that there was utility in maintaining the Current Award and replacing it with the Consent Award.
The applicant subsequently filed a further affidavit by Kathryn Knevitt dated 15 May 2025 giving evidence that the Health Care Complaints Commission and the New South Wales Police Force supported the rescission of the Current Award without making the Consent Award. It deposed relevantly that:
[3]
"3. On 8 May 2025, Ms Natalie Ramsey, People and Culture Manager of the HCCC advised the Crown Solicitor's Office by email (to which I was copied) that they have not employed anyone under the Crown Employees (Medical Officers) Award 2022 (the current Award) for over three years and that they are supportive of rescinding the current Award.
4. On 14 May 2025, Ms Hannah Apps, Manager, Employee Relations of the NSWPF advised the Crown Solicitor's Office by email (to which I was copied) that they no longer press for the Award to be made and that they are comfortable for the Award to be rescinded."
[4]
I then sought and received confirmation from the Secretary and ASMOF of their consent positions in favour of rescinding the Current Award.
The parties consented to my determining the application and the question of whether to rescind the Current Award on the papers.
[5]
Subsection 17(2) of the Industrial Relations Act provides that ss 11, 13 and 15 of the Act apply to a variation or rescission of an award. In particular, the Commission has the power to rescind an award on the Commission's own initiative pursuant to s 11(1)(b).
In Miscellaneous Workers Home Care Industry (State) Award, Commissioner Sloan said:
[6]
"There is no employer party expressing an interest in the Award. There is no evidence that the Award applies to any employees. I am satisfied that the Award is obsolete in that there are no longer any employees falling within its coverage. To my mind, it would be inconsistent with ss 19 and 20 of the Act that the Award be maintained in the off chance that it may have some residual coverage when the evidence suggests otherwise."[1]
[7]
The Commission has a statutory obligation to ensure awards are modern and up to date and consistent with the objects of the Act. Awards that do not serve any current purpose should not be maintained.
I am satisfied in light of the most recent evidence that the Current Award is obsolete in that there are no employees who fall within the scope of the award. Both the New South Wales Police Force and the Health Care Complaints Commission are content for it to be rescinded.
It follows that there is no utility in granting the application to make the Consent Award.
Should either the New South Wales Police Force or the Health Care Complaints Commission decide to employ a medical officer in the future, the Commission would have no difficulty in making an award setting appropriate conditions, and could do so at short notice.
I am otherwise satisfied that it is not contrary to the public interest to rescind the Crown Employees (Medical Officers) Award 2022.
Noting that the rescission of the Current Award is consented to by all parties, for the foregoing reasons, I determine to rescind it pursuant to s 17(3)(a) of the Industrial Relations Act.
[8]
(1) The application to make the proposed Crown Employees (Medical Officers) Award 2024 is dismissed.
(2) Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Crown Employees (Medical Officers) Award 2022 is rescinded by consent.