Health Services Union NSW v the Health Secretary

Industrial Relations Commission (NSW)|2020-06-15|Before: Mr J

DECISION

Before the Commission is an Application for Leave to Appeal and Appeal by the Health Services Union NSW ("HSU") from the decision of Commissioner Sloan in NSW Ministry of Health v Health Services Union New South Wales and anor (No. 2) [2019] NSWIRComm 1081 which was handed down on 30 October 2019 ("Decision").
The proceedings at first instance before Commissioner Sloan originated by way of a notification of industrial dispute filed pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act") on 25 July 2018 by the first respondent, the Health Secretary pursuant to s 116H of the Health Services Act 1997 (NSW) ("Ministry"). During those proceedings, the Ministry and the HSU filed competing applications to vary the Operational Ambulance Officers (State) Award 2018 ("rescinded 2018 award"). That award was rescinded and replaced by the Paramedics and Control Centre Officers (State) Award 2019 which took effect from 1 July 2019 ("Paramedics Award").
The Paramedics Award contains the classification "Duty Control Centre Officer" ("DCCO") which previously had the classification title "Duty Operations Centre Officer" ("DOCO") in the rescinded 2018 award. A DCCO is defined in clause 5 Classifications of the Paramedics Award as follows: (xx) Duty Control Centre Officer means an employee who has successfully completed the requirements as set out for a Paramedic and who has successfully completed the requirements for and is appointed to a Duty Control Centre Officer position identified as such by the Service. This category of employee will be involved in the dispatch and movement of emergency and non- emergency ambulances utilising the Service's Computer Aided Dispatch and Telecommunication systems utilising management skills. This category of employee will be required to give advice regarding emergency and non-emergency ambulance care and may be required to be involved in emergency and routine patient transport utilising management skills in addition to emergency and basic life support skills.
As can be seen from the classification definition set out above, in order to be appointed as a DCCO an officer was required to be a trained paramedic.

The Decision

Commissioner Sloan heard evidence from Lawrie Whitehurst, the Manager HR Services, People and Culture at NSW Ambulance, Anthony Gately, the Director Control Centres, NSW Ambulance, and Lauren Ariansen, the Acting Chief Superintendent, Deputy Director Western Control Centre, Clinical Operations at NSW Ambulance, for the Ministry; and from Christine Bond, Acting DCCO, Cameron Bruce, who is employed with NSW Ambulance and has worked as an Acting DCCO, Mark Dunworth, Acting DCCO, Jon Mackenzie, Senior Control Centre Officer ("SCCO"), and Ian Quigg, who has worked as an Acting DCCO and Dispatcher, for the HSU; and from Jason Tanti, Paramedic Station Officer, and Peter Richards, Paramedic, for the APA.
The Commissioner determined the competing applications for award variations as follows: Consideration The Ministry Application Non-paramedic DCCOs 71 I am satisfied on the evidence that the Ministry has established that there is a substantial reason to vary the Paramedics Award to allow for employees without paramedic qualifications to be appointed to a DCCO position. The Ministry submitted that the Ministry Application "regularises and enshrines in the Award an existing practice of employing people in this classification". I accept that this is the case. 72 The evidence clearly demonstrates that since prior to 2011 NSW Ambulance has been unable to fill all DCCO positions with employees with paramedic qualifications due to a lack of interest from the paramedic cohort. Non-paramedic employees have been "acting" as DCCOs, in some cases for several years. Ms Ariansen deposed that at the Western Control Centre non-paramedic DCCOs have been employed for between two and seven years. I accept the Ministry's submissions that it is unfair that these employees are unable to apply for permanent appointment to these positions. I also accept the (uncontroverted) evidence of Mr Gately that having employees appointed to "acting" positions on an ongoing basis has implications for the stability and operations of the wider Control Centre team. 73 The primary ground of opposition to the creation of a non-paramedic DCCO role is the potential for it to reduce the clinical expertise available in Control Centres, which in turn might detrimentally affect patient welfare. However, the evidence does not bear these concerns out. 74 There is no evidence that the appointment of non-paramedic employees to DCCO positions has resulted in a reduction in clinical expertise being available, much less that this has resulted in adverse patient outcomes. In its submissions the HSU acknowledged that the employees have been performing in the role of DCCO "ably and effectively". 75 Mr Quigg deposed at some length to instances in which clinical intervention was required in a Control Centre. In each case, the necessary support was available and there was no adverse implication for patient welfare or safety. It is moot to speculate as to what might have happened had that support not been available. 76 Mr Mackenzie gave evidence that he regularly provides clinical advice in the course of his duties. This calls into question the opinions expressed by Messrs Tanti and Richards in their statements to the effect that SCCOs "are extremely busy and rarely have time to provide clinical supervision". 77 Ms Ariansen deposed under cross-examination that there had never been a situation where she had been unable to obtain necessary clinical advice. 78 The Ministry Application does not seek to preclude the appointment of paramedics to DCCO positions. Rather, it seeks to widen the pool of potential candidates for those positions, due to historical difficulties in filling vacancies from the paramedic cohort. There are currently paramedics employed as DCCOs and there is no evidence to suggest that they will not continue to be employed, and appointed. The evidence shows that non-paramedic DCCOs have and would continue to have clinical assistance available from a range of internal and external sources. 79 In light of all of the evidence, there is no basis to suggest that the introduction of non-paramedic DCCOs would be contrary to the public interest. 80 In terms of the classification or definition of the DCCO position, HSU Application proposes separate definitions for paramedic and non-paramedic DCCOs. I observe that in light of the evidence of the HSU's witnesses that there is practically no difference in the duties performed by paramedic and non-paramedic DCCOs it is difficult to see the basis on which the HSU contends that the roles should be differently defined. 81 Having regard to all of the evidence and submissions, I consider that the classification proposed by the Ministry is to be preferred over that contained in the HSU Application. I accept that a non-paramedic DCCO might be required to provide non-clinical advice from time to time and so it would be inappropriate to fashion a definition which did not allow for that possibility. Rate of pay 82 I turn now to the rate of pay which the Ministry proposed would be paid to non-paramedic DCCOs. It is convenient at the same time to deal with that aspect of the HSU Application. 83 The rate proposed by the Ministry was set by reference to the salary point of a Senior Administrative Officer, Grade 2, Year 1 from the Clerical Award, which was the reference point adopted in March 2011. The result is that DCCOs without paramedic qualifications would be paid at a slightly lower rate than those with such qualifications. 84 It was common ground between the HSU and the Ministry that DCCOs holding paramedic qualifications deserve to be remunerated at a higher rate than those without them. This recognises not only the clinical skills and expertise that paramedic DCCOs bring to the Control Centres, but also allows for the fact that they may be required to perform on-road paramedic duties. 85 The fundamental point of difference between the Ministry and the HSU was that the HSU contended that the base rate of pay for both paramedic and non-paramedic DCCOs should be the same, with paramedics being remunerated at a higher level through the payment of the Control Centre Allowance. It took the view that the effect of the Ministry Application would be to effect a reduction in pay for the existing non-paramedic DCCOs. 86 Ms Whitehurst's evidence disclosed that it was always intended by the Ministry to pay non-paramedic DCCOs at a rate calculated by reference to the Clerical Award. It was understood that rates of pay under the Operational Ambulance Officers Award would rise at a greater rate than those under the Clerical Award, with the practical effect that over time paramedic DCCOs would be paid at a slightly higher rate than their non-paramedic counterparts. It was only through the introduction of a new payroll system that it became necessary to revert to payment in accordance with the Operational Ambulance Officers Award and, more recently, the Paramedics Award. That system did not allow DCCOs to be paid by reference to a different award. 87 In this context, the fact that non-paramedic employees acting as DCCOs are currently being paid in accordance with the Paramedics Award seems more an accident of history as opposed to being the result of any analysis as to the work value of non-paramedic DCCOs. It follows that the position being taken by the Ministry is not to be regarded as a deliberate decision to diminish the value of the work performed by non-paramedic DCCOs. I consider that it is incorrect for the HSU to characterise the Ministry Application as a request for a "wage cut". 88 I accept the following oral submissions of Ms Raper: "Firstly, in relation to the submission that the Commission is being asked to reduce the rate of pay of non-paramedic DOCOs. That's not a correct characterisation of what is proposed by the Ministry's application. What the Ministry's application is to set the appropriate rate for the first time to apply to this category or classification of employees where there is no current entitlement and has been no past work value analysis or otherwise with respect to the position. Rather what's happened is that employees who don't fall within the current categories received a benefit in circumstances where this litigation started two years ago and have obtained a benefit over that period waiting for the Commission's determination of this issue." 89 In Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres (No 2) [2015] NSWIRComm 38 ("Correctional Officers") Kite AJ, as the Chief Commissioner then was, held as follows: "75. In City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49, the Full Bench outlined at [19]-[22] the requirements of s 10 of the IR Act in considering what constitutes 'fair and reasonable' for the purposes of the Act: '[19] The terms "fair" and "reasonable" in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them. [20] Consideration of what is fair and reasonable for an employee will necessarily involve a consideration of what is fair and reasonable having regard to the nature and circumstances of the employment afforded to the employee by an employer. That inquiry cannot be made in a vacuum. It must also extend to the broader context in which the employment occurs and ultimately, by effect of s 146 of the Act, the state of the economy in New South Wales. [21] The assessment required by s 10 will often involve consideration of collective relations between unions and employers or employer associations and, in appropriate cases, consideration of the history of terms and conditions that the parties chose to apply, formally and informally, to employees who will now be covered by the proposed award. [22] In particular cases, the Commission may be required to take into account not only differences between employers or industries in which employment is undertaken, but relevant differences between employees or classes of employees in a workplace, enterprise, project or industry. What may represent a fair and reasonable condition for one set of employees may not be for another, even where the employees are engaged by the same employer. That particular assessment may depend on the history as well as consideration of the present circumstances of the work to be performed.' 76. The starting point is the presumption that the existing award sets fair and reasonable conditions. The question is whether there is now evidence before the Commission to support a conclusion, on a basis other than equivalence, that in respect of the three subject matters the Island Award does not do so.…" 90 There is no evidence that since 2011, when non-paramedic DOCOs were first appointed, there has been any change to the workload, duties, responsibilities or stressors of paramedic DOCOs. There is no evidence that they have been called on to provide a greater level of clinical advice and support. 91 I am not satisfied that the evidence establishes that in relation to wages the Paramedics Award does not set fair and reasonable conditions of employment for paramedic DCCOs. The HSU has not rebutted the presumption described in Correctional Officers. ………………………….. Conclusions 105 I accept that there is a substantial reason, and it would not be contrary to the public interest, to vary the Paramedics Award to allow for employees without paramedic qualifications being employed as DCCOs. I consider that the definition of the classification proposed by the Ministry is appropriate. 106 I am satisfied that the rate of pay which the Ministry proposes to be paid to non-paramedic DCCOs would set fair and reasonable conditions of employment for them.

The HSU appeal

In its Application for Leave to Appeal and Appeal, the HSU identified the following questions raised by the appeal: 1. Did the Commissioner err in failing to reasonably satisfy himself that the rate of pay in the Health Secretary's application set fair and reasonable conditions? 2. Did the Commissioner err in failing consider whether the rate of pay in the Health Secretary's application set fair and reasonable conditions? 3. Did the Commissioner err in failing to apply the Wage Fixing Principles set out in State Wage Case 2019 [2019] NSWIRComm 1065? 4. Having found there was no practical difference in duties between paramedic and non-paramedic DCCOs [80], did the Commissioner err in failing to put adequate weight on comparative wage justice? 5. Did the Commissioner err in failing to be satisfied that the HSU's application set fair and reasonable conditions of employment? 6. In creating a new classification is the Commission required to conduct an assessment of work value? a. If the answer is in the affirmative what principles apply? b. If the answer is in the negative how should the Commission ensure it is setting fair and reasonable condition of employment?
The HSU relied upon the following grounds of appeal: 1. The Commissioner erred in failing to reasonably satisfy himself that the rate of pay in the Health Secretary's application set fair and reasonable conditions. 2. The Commissioner erred in not considering whether the rate of pay in the Health Secretary's application set fair and reasonable conditions. 3. The Commissioner erred in failing to take the proper approach to the fixing of wages in failing to apply the Wage Fixation Principles. 4. The Commissioner erred varying the Award in accordance with the Health Secretary's, in so far as it set a rate of pay for non-paramedic DCCOs. 5. The Commissioner erred in determining that the Health Services Union's (HSU) application, in so far as it set a rate of pay for non-paramedic DCCOs, did not set fair and reasonable conditions of employment. 6. The Commissioner's reasons were insufficient. 7. Such other or further grounds as this Honourable Commission considers appropriate.
The HSU also relied upon the following as reasons for the granting of leave to appeal: 1. The matter involves issues of such importance that, in the public interest, leave to appeal should be granted. 2. The Commissioner has erred in his decision making and that error should be remedied. While the decision necessarily involves the exercise of discretion by the Commissioner, that discretion was not properly exercised. 3. The appeal goes to the wage fixing function of the Commission. This is a central and important function of the Commission. It is of great importance that the approach taken is the correct one. 4. The Decision does not articulate reasons for finding that the rate in the Health Secretary's application sets fair and reasonable conditions of employment. 5. In a changing economy and labour market (from which the public sector is not immune) the process by which wages are fixed are of even greater importance. The Commissioners approach reveals a number of errors in reasoning: a. The Commissioner observes that this rate has not been paid since 2016, and instead has been paid at the DCCO rate (the rate nominated in the HSU's application), b. The Commissioner misstates or misunderstands the HSU's position at [84] to the extent that the first sentence has a relationship with the second sentence. The conclusion is also contrary to the Commissioner's findings about the relevance of clinical expertise to the role. c. At [86] the Commissioner applies a wrong approach. The Commissioner appears to have accepted that the rate of pay nominated by the employer as being based on the rate for Senior Administrative Officer (Grade 2, Year 1) in the 'Clerical Award' at [25], between 2011 and 2016 was gained a presumptive status. This is wrong in fact and in law. There is no basis articulated for saying that the rate of pay is fair and reasonable for the nonparamedic DCCO, the Commissioner fails to undertake any independent analysis of the fairness or reasonableness of that rate. On another view the Commissioner in [86] is distinguishing the employers intended rate of pay from the rate that was actually paid between 2016 to present. If that is the case it is a consideration that is irrelevant, or alternatively wrong in fact, it is not sufficient for an employer to put their hands up and blame the payroll system, there was no claim of inadvertence or not being aware of the change of pay rate. d. At [87] the Commissioner finds that the actual rate of pay received by DCCOs is an 'accident of history as opposed to being the result of any analysis as to the work value of non-paramedic DCCOs'. That finding is problematic for several reasons: i. In light of the Commission's findings about the duties of the role being the same for a paramedic or a non-paramedic, the existing DCCO rate clearly does have a basis in work value having been already set by the Commission to remunerate for those duties, ii. The Commissioner has not applied the appropriate scrutiny to the rate set in 2011, which has no basis in work value, except for those employed as Senior Administrative Officer (Grade 2, Year 1), iii. The Commission, it appears, misunderstands the HSU's submission. It is undeniable that, in a very real sense, the wages paid to the individuals affected by the decision are reduced on the Secretary's application. e. At [88] the Commissioner adopts the submission of the Secretary. That submission favours form over substance and for that reason does not adequately deal with the point it purports to. It also admits that there has not been pervious work value analysis. f. From [89]-[91] the Commissioner sets and applies a test that is, with respect, difficult to follow. It raises several issues: i. The Commissioner has held the HSU's application to an incorrect test. The HSU has been required to establish a work value increase relative to the 2011 rate for Senior Administrative Officers (Grade 2, Year 1), ii. Paragraph [90] appears to compare the work value of non-paramedic DOCOs with work value changes for paramedic DOCOs. In an attempt to understand the reasoning we have assumed this is a minor error and that this section in context deals only with non-paramedic DCCOs, iii. The HSU's application has been subject to a test that the Secretary's application has not been, iv. At [90] the Commission suggests there is no evidence of a requirement to provide a greater level of clinical advice and support. This is not a conclusion available for three reasons: 1. There was no work value analysis done in 2011, 2. There were no non-clinical DCCOs working at the time to form the basis for a comparison, 3. The Commissioner made findings that the duties were practically identical [80] and that finding in the context of this decision should support a conclusion that the rate of pay should be equal. g. [91] reveals several issues or errors: i. The Commissioner does not apply the correct test to the setting of fair and reasonable conditions in the context of the proceedings, ii. The approach of requiring a party to rebut a presumption is only taken with respect the HSU's application. The Secretary escapes any such scrutiny, iii. To the extent that the presumption is relevant, the HSU's application on the wage rate supported the presumption that the award set fair and reasonable conditions of employment, h. The Commissioner fails to undertake any meaningful analysis other than to say that a lower rate recognises clinical skills and the potential to be required to perform on road paramedic work at [84]. This is contrary to Commissioners finding that there was no value in the clinical skills in the DCCO role [73]-[78]. There was no evidence that a DCCO had ever in fact been required to perform on road paramedic work. On any view this single sentence does not satisfy the duty to assess work value. 6. The Commission should intervene to realign the decision to be consistent with established principles, in particular the wage fixation principles. The Full Bench should intervene to ensure certainty in the jurisdiction to the approach in such matters. 7. The regulation of public sector employment has operated under a strict ceiling for several years resulting in a general depression of wage growth relative to the private sector. In this context the Commission's role in assessing work value is of even greater public importance than it otherwise might be. 8. The decision creates the industrially undesirable situation where employees are performing the same work side by side for the same employer for different rates of pay. 9. A decision that results in a decrease in wages from one week to the next (however characterised) for employees performing the same duties is so irregular as to warrant special scrutiny. 10. The Commissioner's reasons are insufficient.
On the question of leave to appeal, the HSU relied upon the following written submissions (footnotes omitted): Leave in these proceedings 7. The questions on appeal together and severally provide a sound basis for the grant of leave to appeal. In particular: a. Questions 1, 2, and 4 go to the exercise of the Commissioner's jurisdiction when fixing conditions of employment. These questions deal with different perspectives on the ultimate issue. Their answers will have general application for the Award making and varying powers exercised by the Commission. b. Question 3 goes to the Commissioner's jurisdiction, the principles of law that underpin that jurisdiction, and deals with a matter of general application to the Commissions powers in the setting of wages and conditions. c. Question 4 goes to the relevant principles of law and the methodology of the Commission in assessing work value. While it deals with a one aspect of work value assessment it is nonetheless of widespread application. d. Question 6 deals with the manner by which the Commission's jurisdiction is to be exercised when making or varying awards. 8. Ground 6 of the appeal asserts the insufficiency the Commissioner's reasons. Insufficient reasons are themselves a jurisdictional error. Further, there is a public interest in the reasoning of the Commission being sufficient to be readily understood. Several of the grounds and questions deal with the process of the Commissioner's reasoning. 9. It is a 'general industrial principle' that the "interests of employees are an important aspect of public interest." Here that interest is in having a reliable framework for the assessment of work value that provides some predictability and reliability in how it will be assessed. 10. The Wage Fixing Principles make up established industrial principles. This appeal goes to their practical application. The public interest is in the upholding of authority generally, and the wage fixing principles particularly. The principles create a framework for the setting of wages and conditions that is fair and reasonable, that balances the interests of employers and employees, and provide reliability and predictability. The principles provide a comprehensive framework for the Commissions determination of pay and conditions. Conclusion 11. All the issues raised by the appeal are matters of significant public interest, leave to appeal should be granted and the Full Bench should hear the appeal.
In opposing the grant of leave to appeal, the Ministry relied upon the following written submissions (footnotes omitted): 1. NSW Ministry of Health v Health Services Union of New South Wales (No 2) [2019] NSWIRComm 1081 (primary decision) concerned applications by the Ministry and the appellant to vary the Paramedic and Control Centres Officers (State) Award (Award) pursuant to s 17 of the Industrial Relations Act 1996 (NSW) (Act). Both applications sought to introduce a new classification for Duty Control Centre Officers without paramedic qualifications (non-paramedic DCCOs). The applications differed in that the Ministry's application sought to fix the wage rate for that position lower than the wage rate for DCCOs with paramedic qualifications (paramedic DCCOs). while the appellant's application sought to fix the wage rate at the same level as paramedic DCCOs hut to give paramedic DCCOs an additional allowance (together with other variations that are not the subject of appeal). 2. Commissioner Sloan allowed the Ministry's application and dismissed the application of the appellant. The appellant now seeks leave to appeal from that decision. That leave should not be granted and the appeal should be dismissed. Leave to appeal 3. Leave to appeal is to be granted only if the Full Bench considers that 'the matter is of such importance that, in the public interest, leave should be granted'. Leave 'will not be lightly or automatically granted'. As the appellant's Narrative on Leave to Appeal (appellant's leave submissions) recognises, it will generally be granted only where: a. the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' or 'raises issues going to the proper administration of justice', as opposed to an appeal that 'primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence'; and b. there is an arguable case that the primary judge made an error of a kind that the Full Bench can correct on an appeal in the strict sense. 4. In the case of a discretionary decision, this means an error of the kind identified in House v R. It must be shown that Commissioner Sloan acted on a wrong principle, made a mistake as to the facts, or took into account an irrelevant consideration or failed to take into account a relevant consideration. Such an error may be inferred if the decision is 'unreasonable or plainly unjust' on the facts. But it is not enough that the Full Bench would have exercised the Commissioner's discretion differently. 5. None of these requirements is satisfied. 6. Although the appellant cloaks its grounds of appeal in the language of House v R, it is apparent from the appellant's Outline of Submissions (appellant's appeal submissions) that its allegations of error reduce to the proposition that Commissioner Sloan should have exercised his discretion differently. No challenge is or could be made to the Commissioner's statement of the applicable principles in exercising the power to vary an award or assessing what are 'fair and reasonable' conditions of employment. No mistake of law or fact is identified. When it is said that the Commissioner failed to satisfy himself of or consider relevant matters, took into account irrelevant considerations or failed to 'take the proper approach' to wage fixing, what appears to be meant is that the Commissioner did not apply the applicable principles in a manner that produced the appellant's preferred outcome. That is not a basis for the Full Bench to disturb the Commissioner's exercise of discretion. 7. To the extent the appellant suggests that the Commissioner's decision was 'unreasonable or plainly unjust' in the House v R sense, that submission should be rejected. The Commissioner set out reasons for deciding to fix the wages for the non-paramedic DCCO classification as he did and for not acceding to the appellant's application for higher allowances for paramedic DCCOs. On their face these reasons disclose reasonable grounds for that exercise of discretion. On no view is there patent unreasonableness or injustice to such a high level that it can be inferred that the Commissioner acted on a wrong principle. 'Unreasonable or plainly unjust' cannot be used as a back door method of conducting a merits review of the Commissioner's exercise of discretion. 8. Nor is any issue raised as to the proper administration of justice. The appellant's complaint that the Commissioner misunderstood some of its submissions has no foundation. It is clear that the Commissioner understood what the appellant meant by its description of the Ministry's position as involving a 'wage cut' but considered that, having regard to the circumstances in which the existing wage rate was implemented, that was an inaccurate description. No issue of unfairness arises. 9. For these reasons, the appeal does not raise any issue of principle or law requiring the full Bench's intervention. None of the matters raised by the appellant have any implication for the Commission's jurisprudence. They have no implication beyond the facts of the present case. No broader public importance attaches to them.

Leave to appeal

The principles governing the grant of leave to appeal in this jurisdiction are well known. These principles were recently restated by a Full Bench of the Commission (Chief Commissioner P Kite SC, Commissioner D Sloan and Commissioner J Webster) in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 in the following terms: Legal principles to apply "27 An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Act. 28 The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him [sic]: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]." 29 In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12]-[13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal." 30 The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles."
In applying these principles, we have determined that leave to appeal will not be granted in this case for the following reasons: 1. The award variation made by Commissioner Sloan affects a relatively small number of employees. The evidence before the Commissioner was that, as at November 2018, 26 of 39 (or 66 per cent) of DOCO positions were vacant. Of these 16, or 61 per cent, were being filled by non-paramedic employees (Decision at [27]). Whilst this number is likely to increase in the future, non-paramedic DCCOs will continue to be a relatively small cohort of employees. 2. Contrary to the submissions of the HSU, this appeal does not raise substantial issues of principle or law nor does it have wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application. (Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 at 382). 3. This is an appeal against the exercise by Commissioner Sloan of the discretion that resides in the Commission. We would only intervene in such a decision if it could be shown that the Commissioner failed to properly exercise the discretion committed to him (House v The King (1936) 55 CLR 499 at p 504-505). It is not enough that the members of this Full Bench might have come to a different view, which, in any event, we have not (s 191 of the Act). 4. We have determined that the HSU has failed to mount an arguable case pointing to appellable error (Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [17]-[18]). 5. We are of the opinion that that this matter is not of such importance that, in the public interest, leave should be granted (ss 188(2) of the Act).
In its attempt to identify appellable error in the Decision, the HSU put the following submissions (footnotes omitted): 25. When considering the rate of pay the Commissioner needed to consider the work value of those employees. On the material before the Commissioner the task required was to consider the work, wages, and the conditions under which the work is performed of non-Paramedic DCCOs. That was most readily done by reference to the work, wages, and the conditions under which the work is performed by paramedic DCCOs. 26. The Commission is required to ensure that the Award once varied would ensure fair and reasonable conditions of employment. This is a consequence of section 10 of the Act, object (a) of the Act, this is reflected in the first of the four primary aims of the Work Value Principles. This principle is an overarching one and may need to be considered various stages of the Commissioners considerations. The Commissioner's findings 27. The Commissioner found that there was a substantial reason to vary the paramedics award. The 'introduction of non-paramedic DCCOs would not be contrary to the public interest.' 28. The presence of non-paramedic DCCOs does not reduce the clinical expertise available in control centres, nor does their presence detriment patient welfare. That there is 'no evidence' that non-paramedic DCCOs already in control centres have resulted in a reduction in clinical expertise or resulted in patient outcomes. 29. There is 'practically no difference' between duties performed by paramedic and non-paramedic DCCOs. There is no basis that that the roles should be defined separately. The Commissioner's considerations on rate of pay Correctional Officers 30. The appeal raises issue with the Commissioner reasoning in the decision between [82]-[92]. Most significantly the Commissioner acted on wrong principle in his application of the presumption in Correctional Officers. 31. The presumption in Correctional Officers, that an award sets fair and reasonable conditions of employment, operates to require that there be evidence to justify a change to conditions of employment. In these circumstances the change is allowing the introduction of non-paramedics into the roles, if the presumption has any work to do it is requiring the parties to prove that it is necessary that the award be varied. This is discharged by the Commissioners finding at [72] that 'it is unfair that these employees [non-paramedic DCCOs] are unable to apply for permanent appointment to these positions.' 32. The Commissioner appears at [90] to have placed the presumptive weight from Correctional Officers on the rate of pay selected in 2011 by NSW Ambulance Human Resources, in doing so he erred. The Commission has never determined that the SAO rate of pay sets fair and reasonable conditions of employment for persons working as DCCOs. 33. Alternatively, [90] is aimed at the finding at [91] if that is the case then the reference to 2011 is irrelevant. The relevant datum point for this award is 2010. The relevance of the datum point is for determining work value changes over time, and when a presumption of fairness may apply from. No party advanced a submission based on the notion of changes to the work value of paramedic DCCOs. 34. The Commissioner finds at [91] that the onus has not been discharged in relation to paramedic DCCOs by the HSU. Notwithstanding the issues raised about the reasoning that leads to this conclusion the Commissioner has held the HSU's application to a test that the Secretary's application has not been subject to. 'Wage Cut' 35. The Commissioner appears to have misunderstood the HSU's submission that granting the Ministry's application would constitute a 'wage cut'. The Commissioner appears to have understood that to mean a reduction against an established (and presumptively fair) award rate of pay. 36. In the HSU Submissions, filed 23 July 2019: [11. a] Introducing what would in effect be a wage cut. Such a step would be highly irregular. The employer has not [made] out that it is not contrary to the public interest nor that there is a substantial reason to do so. 36. Ms Raper's submission at [88] was accepted by the Commissioner. That submission appeared to be in response to a remark made by the HSU in its oral submissions. The HSU during the proceedings advanced the following submission: I just wanted to start off by observing there is a [real] tension in the case that both parties need to grapple with, and I'll start off by acknowledging the one in my own, which is the HSU case on the basis of equal pay for equal work at the core of these duties is set against what we say we need to introduce an allowance to compensate paramedics. Now, the Ministry equally have a difficulty where they say with some force that the job role of DOCO is the same for a paramedic as it would be for a non-paramedic and in the practice that is occurring it is, while saying that in effect the Commission should reduce the rate of pay for those non paramedics. 38. The HSU's submissions properly understood is aimed at two things: a. Those employees would in practical terms would be paid less from one day to next on the making of the award. That this is a consequence of the Secretary's application is not reasonably deniable. b. The Commission had fixed pay and conditions for DOCOs which were, presumptively, fair and reasonable. Those rates were set by reference to their work value (again presumptively based on 2010 MOU between the HSU and the Secretary). The Secretary's case was predicated on the idea that these employees are performing the same work. As a logical consequence that would affect a reduction in reward for the work value for the same work value. Other sources of error 39. At [84] to the extent that the Commissioner relied on the ability for a paramedic to be required to be required to attend on-road emergencies, there was no evidence before the Commission that this had, in-fact, ever occurred. Further, work value should be determined by reference to the highest skill utilised. On the basis that a DCCO's rate of pay is greater than that of a Paramedic the Commission should infer that elements of the DCCO position are of a greater work value (for example the supervisory component of the work). 40. The Commissioner's observation at [86] that it is an 'accident of history' that DOCOs were paid at the Paramedic DOCO rate must apply equally to them being paid at the SAO rate selected by NSW Ambulance in 2011. 41. The Commissioner [86] undertakes irrelevant considerations. The reasons why the rate of pay for non-paramedic DCCOs was at a particular level is not relevant. The historical rate of pay is relevant only to the impact it has on employees when the award is made (for example is it fair, in all the circumstances, to make an award that reduces the conditions of employment enjoyed by employees). 42. By acting contrary to established principles the Commissioner acted inconsistently with the second primary aim of the Work Value Principles 1.2.2 to provide a framework that accommodates the interests of employers and employees and their representatives and ensures consistency of approach, certainty and predictability as to the principles that are to operate in respect of the fixation of wages and the setting of employment conditions. The proper outcome 43. Had the Commissioner followed the correct approach the only conclusion available consistent with his findings is to have accepted the HSU's application in relation to the rate of pay for non-paramedic DCCOs. 44. Most simply stated, the Commissioner, having found found that the work of Paramedic DCCOs was the same as non-Paramedic DCCOs, being conducted in the same environment, necessarily needed to conclude that work value is the same. The HSU's application as it related to wages must then be accepted. 45. It would be relevant for the Commissioner to consider differences in conditions of employment. The only significant difference in conditions between paramedic and non-paramedic DCCOs is annual leave which the HSU also sought to bring to parity, that aspect of the decision was dealt with by the Commissioner at [99]-[103]. 46. There is no principle that a qualification has intrinsic value when considering work value. It may be that a necessary consequence of a qualification that work of higher value is being performed. There are some awards that reflect this, for example the Health Employees Medical Radiation Scientists (State) Award 2019 provides automatic progression in certain circumstances, this recognises the work value associated with relevant skills. The Commissioner expressly found that clinical skill did not Disposition of the matter 47. The Commission has broad powers to finally resolve matters the subject of appeal. The appeal does not seek to overturn findings of fact that require the benefit of seeing witnesses, and the disposition of the appeal does not require new evidence to be adduced or assessed. 48. The Commission should make orders consistent with the HSU's notice of appeal. 49. In doing so the Commission should vary the 2019 Award to provide an equal rate of pay between Clinical and Non-Clinical DOCOs. 50. The Commission should make any further orders it think necessary to ensure fair and reasonable conditions of employment.
It needs to be remembered that the HSU's application before Commissioner Sloan was that non-paramedic DCCOs be paid the award rate of pay for paramedic DCCOs and that the latter cohort be paid, in addition to that rate, the Control Centre Allowance contained in the award.
The Control Centre Allowance is provided for in subclause 5(b)(xvi) of the Paramedics Award, which is as follows: Trainee Ambulance Control Centre Officer means an employee who is required to undertake and successfully complete the requirements for appointment to an Ambulance Control Centre Officer position identified as such by the Service. This category of employee will be involved in the dispatch and movement of emergency and non- emergency ambulances utilising the Service's Computer Aided Dispatch and Telecommunication systems. Inter alia this category of employee will receive training and certification by the Service in Occupational Health and Safety, Ambulance First Aid, Medical Terminology, Computer Aided Dispatch and Telecommunications Systems, Computer mapping, emergency vehicle movement coordination, Equal Employment Opportunity, Anti-Discrimination and Anti-Harassment. Paramedic Interns, Paramedics, Paramedic Specialists, Team Leaders, Station Managers, and District Managers are to be paid in addition to their current wage, the Control Centre Allowance as set out in Item 2 of Table 2B - Additional Allowances, of Part B, Monetary Rates.
The reference to Part B, Monetary Rates in the third paragraph of subclause 5(b)(xvi) is erroneous. The reference should be to Section 8 - Monetary Rates. The Control Centre Allowance is set out at Item 2 in Table 2B - Additional Allowances, Uniformed Control Centre Staff, of Section 8 - Monetary Rates of the award as follows:

Table 2B - Additional Allowances Uniformed Control Centres Staff Item No. Clause No. Allowance Description Rates from Rates from first full pay period 01/07/2019 on or after 01/07/2019 2.5% $ $ 1 5 Control Centre (Standby) (per week) 24.60 25.20 2 5 Control Centre Allowance (per week) (This Allowance is only applicable to Paramedics, Paramedic Specialists, Team Leaders, Station Managers and District Managers. Such an allowance is cumulative on other allowances paid to the employee at the time). 97.48 99.90 3 5 Duty Control Centre Officer Air Ambulance (per week) (Transitional Allowance applicable only to officers employed as Air Ambulance Co-ordination Officers as at 6 February 1998) 15.38 15.80

It is clear from the wording of subclause 5(b)(xvi) and Item 2 of Table 2B of the Paramedics Award that the Control Centre Allowance is not payable to DCCOs.
The claim by the HSU that this allowance should be paid to paramedic DCCOs was supported at first instance by the following ground and reason: Notwithstanding the value of core-work of a paramedic and non-paramedic DOCO being equivalent, a qualified paramedic brings certain skills to the control centre that ought to be rewarded. The award has an allowance already in place that serves this function, it is necessary to extend this entitlement DOCOs and Senior Control Centre Officers (DOCOs) to recognise the value of the clinical skills and to maintain a coherent relationship between rates of pay.
In its submissions before Commissioner Sloan the HSU stated: 14. While the core of the DOCO role is, demonstrably, able to be performed by a paramedic or a non-paramedic, the evidence discloses an undeniable utility in the work of paramedics in control centres. 15. The Operations Centre allowance already applies to Operations Centre Officers, commonly called dispatchers. Under existing provisions of the award paramedics working as dispatchers are entitled to the Operations Centre Allowance. The allowance compensates those employees for their special skills and the value they add to the control centres. It is appropriate, in the present circumstances, that this compensation and recognition be passed on to the other classifications. 16. The introduction of non-clinical DOCOs increases the pressure on existing clinically trained staff to provide expert advice and assistance. That demand has a passive component and an active component. a. Passively, the clinician must hold themselves ready to provide their skills, they must maintain their professional development and skills. (ii) Actively, the clinician must from time to time in-fact intervene or provide advice or other intervention based on their clinical skill and experience. They are accountable for the quality and consequence of their clinical activity. 17. Paramedics now being a registered and regulated profession under the Health Practitioner Regulations National Law No 86a (NSW). This comes with obligations that the professional is obliged to act consistently with. These obligations cannot be switched on or off from time to time. 18. The reduction in overall clinical presence in control centre has increased the burden on those paramedics working in control centres.
The effect of the HSU claim, if granted, would have been that the award rate of pay for paramedic DCCOs of $1,859.61 per week would be paid to non-paramedic DCCOs and, in addition, paramedic DCCOs would be paid the Control Centre Allowance of $99.90, giving a total of $1,959.51 per week or 5.37% more than non-paramedic DCCOs.
Commissioner Sloan disposed of the HSU claim that DOCOs be paid the Control Centre Allowance as follows: Control Centre Allowance 93 I do not accept the HSU's contention that paramedic DCCOs, SCCOs and ACCOs are presently entitled to payment of the Control Centre Allowance under the terms of the Paramedics Award. I accept the submissions made by the Ministry in this regard. It is not necessary to repeat those submissions. 94 I am similarly persuaded by the Ministry that the insertion of a clause into the Paramedics Award requiring the payment of the Control Centre Allowance to paramedic DCCOs, SCCOs and ACCOs would be contrary to the no extra claims commitment in cl 46 of the Award and, further, would not be permitted pursuant to s 146C(1) of the Act together with cl 6(1)(a) and (b) of the Regulation. In my Earlier Decision I outlined the principles to apply in respect of the Regulation and no extra claims clauses in awards. I will not traverse the same ground in this decision. 95 In this regard, the HSU submitted as follows: 31. Orders 2, 3, and 4 have the potential in increase employee related costs. In the context of how these claims have been brought, they must be 'fully funded'. 32. By 'fully funded' we mean that the HSU does rely on the 2.5% employee related cost increase ordinarily applied to wage increases. So the employee related costs associated with these orders must be less than or equal to the employee related costs savings relied on. 33. Order 4 has a zero-sum relationship with employee related costs savings. That is; for every position occupied by a non-paramedic DOCO they are replacing a paramedic DOCO. The paramedic DOCO was entitled to the greater level of annual leave, generating a saving equivalent to one week's annual leave. That saving is an employee related cost saving and is equal to, all things remaining equal, the employee related cost of the claim. 34. The Commission should consider the merits of all HSU claims. Those that incur employee related costs (with the exception of order 4), should be further determined in a manner consistent with the twostage approach established in the Retained Fire Fighters Case." (Footnote omitted) 96 The reference to the "Retained Fire Fighters Case" was to Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122. In that case the Full Bench stated that in the event an applicant is successful in satisfying the Commission there should be an increase in remuneration or other condition of employment, in the absence of agreement the applicant will also need to satisfy the Commission the necessary cost savings have been or will be achieved to fully offset the increased employee-related costs. This may require a two-stage approach to the hearing, the first stage involving the merits of the claim under the relevant Principle and the second stage providing the parties with an opportunity to address the question of cost savings. 97 Once again, the HSU has not rebutted the presumption outlined in Correctional Officers that the Award sets fair and reasonable conditions for DCCOs, SCCOs and ACCOs. The evidence does not demonstrate that by not affording them payment of the Control Centre Allowance, the Paramedics Award does not set fair and reasonable conditions of employment for the relevant employees. As already stated, the effect of the Ministry Application is to regularise the status quo, which was in place for some years prior to the making of the Paramedics Award. 98 This element of the HSU's claim seems to be directed at ensuring that paramedic DCCOs are remunerated at a higher level than their non-paramedic counterparts. That will be the effect of the Ministry Application, which has been dealt with above.
We agree with the Commissioner's rejection of this aspect of the HSU's application which has not been appealed by the HSU. No case within the Commission's Wage Fixing Principles was mounted by the HSU for increasing the remuneration of paramedic DCCOs. Faced with this outcome, the HSU has, on appeal, submitted that the Paramedics Award should be varied to provide an equal rate of pay for paramedic and non-paramedic DCCOs (paragraph 49 of HSU's submissions at [16] above).
Despite his valiant efforts before the Full Bench, Mr Fox, who appeared for the HSU, was unable to satisfactorily explain what was described as the "internal tension" in the case mounted by the union in which it argued at first instance that paramedic DCCOs should get a pay increase so that they are paid more than non-paramedic DCCOs for the clinical skills which they bring to the job and, the HSU having lost that argument, argued on appeal that paramedic and non-paramedic DCCOs should be paid the same.
We accept, as did Commissioner Sloan, the common position put by the HSU and the Ministry at first instance that paramedic DCCOs should be paid at a higher rate than non-paramedic DCCOs for the clinical skills they possess. Having determined that there was no basis for increasing the paramedic DCCO rate of pay, Commissioner Sloan achieved that common position by awarding the rate proposed by the Ministry for non-paramedic DCCOs which was slightly below the paramedic rate.
The rate of pay which Commissioner Sloan awarded for non-paramedic DCCOs was the rate for a Senior Administrative Officer, Grade 2, 1st Year, from the Ambulance Service of New South Wales Administrative and Clerical Employees (State) Award 2019, currently $1,809.49 per week, which is $50.12 or 2.77% below the weekly rate of pay for a paramedic DCCO ($1,859.61). This represents approximately half of the margin for the possession of clinical skills by paramedic DCCOs for which the HSU contended at first instance (see [23] above), which contention was abandoned on appeal in favour of the claim that both groups of employees should be paid the same.
The rate of pay awarded for non-paramedic DCCOs was not randomly selected by Commissioner Sloan. The rate for a Senior Administrative Officer, Grade 2, 1st Year, was selected as the appropriate rate by the Ministry in 2011 when the need emerged to utilise employees who were not trained paramedics in vacant DOCO positions. That situation remained undisturbed for five years until 2016. Commissioner Sloan set out what then occurred in the following terms: 26 Ms Whitehurst further deposed that since 6 February 2016 non-paramedic DCCOs have been remunerated in accordance with the DOCO rate of pay in Operational Ambulance Officers Award and, subsequently, the DCCO rate in the Paramedics Award. This came about due to the transition of NSW Ambulance payroll to NSW Health's centralised system. That system can only generate a pay file for a DCCO position at the rate of pay contained in the Paramedics Award (and previously the Operational Ambulance Officers Award), and cannot be overwritten to provide a rate of pay derived from the Clerical Award.
We accept, as did Commissioner Sloan, that the current rate of pay for paramedic DCCOs is fair and reasonable. Using that rate as the reference point, a margin for being paramedic trained of $50.12 per week or 2.77% above the rate of pay for non-paramedic DCCOs represents a fair and reasonable outcome for both groups of employees.
We discern no error in the Decision.
Unfortunately, this may result in some employees (non-paramedics) who are currently acting in DCCO positions and are being paid the Paramedic Award rate for a DCCO of $1,859.61 per week, having their pay reduced to $1,809.49 per week. However these employees, as a result of the award variation ordered by Commissioner Sloan, have the opportunity of being appointed to DCCO roles on an ongoing basis.
For the reasons set out above, leave to appeal is refused. Chief Commissioner N Constant Commissioner J Murphy Commissioner J Webster

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: 08 July 2020

[1999] NSWIRComm 449

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