This decision concerns an application filed on 21 November 2024 by the Commissioner of Police (Police Commissioner) to vary the Crown Employees (NSW Police Force (Nurses')) Award 2022 to provide for an interim increase of 3% to salaries and salary-related allowances in the Award.
The New South Wales Nurses and Midwives Association, the respondent, consents to the application.
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Procedural background
The consent application is made against the following background.
On 28 June 2024, the Police Commissioner filed an application seeking to have the Commission make a new award known as the Crown Employees (NSW Police Force (Nurses')) Award 2024, with a 3 year term, providing increases to existing salaries and salary-related allowances of:
1. 3% from the first full pay period on or after 1 July 2024;
2. 3% from the first full pay period on or after 1 July 2025; and
3. 3% from the first full pay period on or after 1 July 2026.
In response, the Association seeks pay parity with the Public Health System Nurses' and Midwives' (State) Award, which applies to nurses in public hospitals. It is the Association's position that when the NSW Police Force (Nurses') Award was first made there was pay parity between the two awards, with that exact parity reinstated, after a short period where the NSW Police Force (Nurses') Award fell slightly behind, by means of a Determination made by the Police Commissioner. In recent years the Commissioner has not increased the quantum of the Determination in line with increases in pay, such that nurses employed by the Applicant are paid slightly less than nurses in the public hospital system, amounting to about $28.10 per week at the RN8 level after having regard to the effect of the Determination.
The Association's claim for pay parity is made against a background in which it is seeking a substantial pay increase for public hospital nurses.
In addition to pay parity, the Association also seeks an increase to the clothing allowance in the Crown Employees (NSW Police Force (Nurses')) Award, on the basis that it has not increased for many years.
The Police Commissioner resists the notion of pay parity and has not agreed to the proposed change to the clothing allowance. She contends that notwithstanding previous parity, the work value of the 8 nurses she employs is less than the work value of those who work in the public hospital system, justifying a lower rate of pay.
On 18 September 2024 I handed down the decision Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4 in which I made the following recommendation:
"(1) The parties should enter into four weeks of intensive discussions immediately on the basis that;
(a) as a circuit breaker the Health Secretary agrees to vary the awards to provide an immediate 3% interim increase effective 1 July; and
(b) the Nurses Federation commit to cease all industrial action that is affecting patient care, pending the outcome of those discussions and any subsequent arbitration.
(2) In order for those discussions to be effective, I recommend that on the Health Secretary's side, persons present be not only senior office holders within the Department of Health, but also ministerial level staff in respect of those ministers who ultimately will need to give approval for any alteration to pay offers.
(3) Should those discussions not result in a resolution, then these disputes be set down for arbitration expeditiously, and that no industrial action take place while that process is occurring."
At the directions hearing for the present matter on 18 September 2024, I drew attention to that recommendation and recommended to the parties in these proceedings that if that recommendation were adopted in those other proceedings then the parties to these proceedings should also adopt it.
At the hearing before the Commission on 14 October 2024 the parties indicated acceptance of the recommendation which has given rise to the consent application.
The parties are continuing to have discussions in respect of the making of a new award.
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The variation application
I now turn to considering this consent application.
The variation entails a 3% increase to all salaries and salary-related allowances in the Award and the application is made by consent of the parties.
Section 17 of the Industrial Relations Act provides:
17 Variation or rescission of award
(1) The Commission may vary or rescind an award.
(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.
(3) An award may be varied or rescinded in any of the following circumstances only -
(a) at any time with the mutual consent of all the parties to the making of the original award,
(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),
(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,
(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.
(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.
In satisfaction of s 17(3)(a), the respondent has consented to the application noting that the variations do not alter the date of the existing "No Extra Claims" commitment, and accordingly the variation does not preclude arbitration of the issues that remain in dispute between the parties.
In support of the application the Police Commissioner filed an affidavit affirmed by Brett Greentree, Assistant Commissioner of Police dated 21 November 2024.
The affidavit provides evidence that the increase effected by the variation is in addition to any increases to the compulsory rate of superannuation and that in the opinion Assistant Commissioner Greentree the varied Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
Pursuant to s 17(2) above, s 15 of the Industrial Relations Act is applicable to a variation of an award. Section 15 provides:
15 Commencement of award
(1) An award comes into force on the date specified by the Commission.
(2) However, legal proceedings relating to the enforcement of the award cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website.
(3) An award may be expressed to apply retrospectively, but not earlier than the date on which -
(a) application for the award was lodged with the Industrial Registrar, or
(b) the Commission itself initiated proceedings for the award, or
(c) the industrial dispute giving rise to the award was notified to the Commission.
(4) Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection -
(a) an award that sets conditions of employment in connection with a project,
(b) an award that sets conditions of employment for employees of a single employer or for employees of two or more associated employers.
Given the variation is made by consent and the award sets conditions of employment for employees under a single employer, namely the Commissioner of Police, s 15(4)(b) permits the variation to be backdated to 1 July 2024.
Paying due regard to the fact this is a consent application which has been made pursuant to the recommendation of this Commission, I am satisfied on the evidence that it is in the public interest to vary the Award in the manner sought by the application.
As the consent application is to vary the existing Award, the name of the Award, including the year 2022, will remain unchanged.
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Orders
I order that pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Crown Employees (NSW Police Force (Nurses')) Award 2022 is varied by consent to provide for a 3% increase to salaries and salary-related allowances effective 1 July 2024, in the form filed in the application.
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Directions
The applicant is to file a soft copy in Word of the amended Award in the form filed in the application by 4.00pm on Wednesday, 11 December 2024.
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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: 10 December 2024