New South Wales Nurses and Midwives' Association v Health Secretary [2026] NSWIRComm 4

Relevant principles for determining claims for increased remuneration - paragraph 62

New South Wales Nurses and Midwives' Association v Health Secretary [2026] NSWIRComm 4 | Case summary | Zoe

[140]

Almost 90% of nurses and midwives are women.
Historically, the work value of feminised industries such as nursing has been undervalued. The reasons are multifaceted, but a key reason is that they involve the exercise of caring or interpersonal skills that women were considered to have a natural capacity to perform which led to those skills not being expressly recognised, considered and valued.
In 1990 registered nurses in NSW were for the first time recognised as professionals and paid accordingly. That change properly recognised the technical and professional skill of degree-qualified nurses and addressed a significant undervaluation to that point. However, neither then, nor before nor after, has any work value review expressly considered caring, communication and related interpersonal skills, skills which historically have been overlooked when valuing female-dominated occupations such as nursing (and which are considered "invisible skills" as a result).
Against that background, we consider it necessary to address the uncontested expert evidence that nurses and midwives perform invisible skills and that there is (at least) a real possibility that their work is undervalued for gender reasons. It would not be appropriate to leave that possibility unaddressed when we can, as part of the exercise of setting fair and reasonable rates of pay, have proper regard to skills not previously expressly considered.
We received extensive evidence that established that caring and other interpersonal skills are not only integral to the work of nurses but of high work value. We have determined to reset pay for nurses and midwives having express regard to those skills.
Further, following findings of the Fair Work Commission (FWC) at a federal level in respect of gender-based undervaluation of enrolled nurses and assistants in nursing in aged care nursing, those classifications require higher increases than the increases for registered nurses to properly value their work and to ensure they are set at or above the federal minimum pay standard.

[143]

In determining the quantum of the one-off increase to rates, we have had regard to the state of the economy of NSW and the impact that the higher increases in pay than proposed by the Secretary will have on the economy and on the fiscal position of the NSW Government.
A consequence of the fact that so many nurses work in the NSW Health Service is that any increase in their pay has a stimulatory effect not only on the economy of NSW but also on that of Australia, with the potential in a tight economy to put upward pressure on interest rates.
Any increase in pay (including the lower and budgeted increases proposed by the Secretary) will need to be debt-funded. For every 1% increase in pay, the NSW Government needs to fund an additional $74.5 million per year. These additional costs reduce the NSW Government's capacity to do other things, including fund infrastructure and provide services. Such considerations are relevant factors to determining the outcome, but not barriers to appropriate increases.
Having weighed all those considerations, we have determined that there ought to be three-year awards, which commence with a significant one-off reset in the first year, with the two subsequent years being 3% annual increases in line with the Secretary's proposal.
We have determined to have the awards commence on 1 July 2025, rather than 1 July 2024 as sought, for three reasons. First and foremost, were we to backdate the increases to 1 July 2024, that would have a larger impact on the fiscal position of the NSW Government, which would have required us to consider awarding a lower increase. Secondly, commencing one year later provides a greater period of certainty: if the awards were backdated to 1 July 2024, then the final increase would be in only a few months' time and the negotiations for the next awards would have to commence almost immediately. Thirdly, the New South Wales Nurses and Midwives' Association (the Association) did not commit to arbitration until late 2024, choosing instead to spend six months seeking increases by industrial action in the face of recommendations and dispute orders of this Commission and, on the last occasion, contrary to a commitment given to the Commission that it would cease to take industrial action. That choice delayed the outcome by at least eight months.

[146]

The NSW Health Service, established by the Health Services Act 1997 (NSW), consists of persons employed by the NSW Government to operate more than 220 public hospitals and other public health services for the people of NSW.
At the heart of the NSW Health Service are more than 69,300 nurses, midwives and assistants in nursing who together make up more than 50% of the health workforce. The latter, not being registered, are strictly not considered "nurses", but are covered by the same award and, unless otherwise stated, are included in our analysis of nurses and midwives.
The Secretary is the deemed employer of the NSW Health Service, and exercises employer functions on behalf of the NSW Government.[3] The Association is the union registered to represent the industrial interests of nurses and midwives in NSW.
Nurses and midwives employed in the NSW Health Service are covered by the Public Health System Nurses' and Midwives' (State) Award 2023 (the Public Health Award). There are, in addition, a small number of nurses and midwives employed as public servants in agencies for which the Secretary is the agency head - approximately 10 employees - who are covered by the Crown Employees Nurses' (State) Award 2023 (the Crown Employees Award).
On 30 June 2024, the nominal term of the Public Health Award and the Crown Employees Awards (together, the Existing Awards) expired, with the last wage increase for those covered by them having been awarded by consent effective 1 July 2023.
On 2 July 2024, following unsuccessful negotiations with the Association, the Secretary applied for two new three-year awards to replace the Existing Awards providing for, among other things, an increase in salary and salary-related allowances amounting to 9.5% (excluding superannuation) over a three-year term commencing 1 July 2024, plus a taxable one-off $1000 payment in July of each year if the 12-month annual average Sydney CPI exceeds 4.5% in the March quarter of each year.
On 13 August 2024, the Association filed a notification of an industrial dispute which identified a lengthy log of claims and that it sought new awards to reflect those claims. At that point, the Association was seeking a one-year award, with a wage increase of 15% effective 1 July 2024.
On 14 August 2024, at a directions hearing before Taylor J, President the Association sought to use the powers of the Commission to resolve its dispute, indicating its preference for conciliation to occur after two high-level meetings.[4] The Association did not indicate that it was contemplating taking industrial action.[5]
On 6 September 2024, the Secretary notified the Commission of an industrial dispute, concerning threatened industrial action by the Association and its members. Commissioner McDonald urgently conciliated this dispute on the same day and recommended that the Association and its members immediately cease organising and participating in industrial action.[6] Having sought to invoke the Commission's powers to resolve its dispute, the Association chose not to accept Commissioner McDonald's recommendation.
On 9 September 2024, Chin J, Vice President made dispute orders requiring that the Association and its members cease and refrain from industrial action.[7] The Association determined not to comply with the Commission's orders, with about 4,600 nurses and midwives participating in strike action on 10 September 2024.[8]
On 18 September 2024, Taylor J, President recommended that the parties enter four weeks of intensive discussions, on the basis of the Secretary agreeing to a circuit-breaking 3% interim increase, the Association committing to cease industrial action, and that any unresolved dispute would be expeditiously arbitrated. In the statement accompanying this recommendation, Taylor J, President identified the strong belief of members of the Association that their pay and conditions were not appropriate, but made clear that:

[148]

On 18 September 2024, Taylor J, President made further dispute orders requiring that the Association and its members cease and refrain from industrial action.
On 19 September 2024, the Secretary proposed to the Association that the parties adopt the recommendation made by Taylor J, President. The Association determined not to comply with the Commission's orders, nor accede to the Commission's recommendation, with about 6,500 nurses and midwives participating in strike action on 24 September 2024.[10]
When the matter next came before the Commission, each party committed to adopting the recommendation made by Taylor J, President on 18 September 2024. That is, the Association committed to refrain from industrial action, and the Secretary agreed to a 3% interim increase.
On 21 October 2024, consistent with the Commission's recommendation and the parties' commitments, the Existing Awards were varied by consent to provide for an interim increase to salary and salary-related allowances of 3% effective 1 July 2024. In accordance with the Commission's recommendation, the parties also engaged in intensive discussions which successfully resolved parts of the overall dispute, although not as it related to wages.
Notwithstanding the commitment given on 18 September which led to the interim increase, on 7 November 2024, the Association notified the Secretary of its intention to engage in further industrial action.
On 8 November 2024, Taylor J, President made further dispute orders requiring that the Association and its members cease and refrain from industrial action. On that day, Taylor J, President also recommended that the Association recommit to his recommendation of 18 September 2024, namely for the remaining dispute to be resolved by arbitration and for no industrial action to occur during that process.[11] In the statement accompanying that recommendation, Taylor J, President again identified that such industrial action is unnecessary, and would amount to the "failure by a major industrial party to abide by a commitment given to this Commission. That failure is a matter of particular concern in circumstances where [the Secretary] did in fact increase wages".[12]
The Association determined not to comply with the Commission's orders, nor accede to the Commission's recommendation, with about 6,800 nurses and midwives participating in strike action on 13 November 2024.
It was not until 17 December 2024 that the Association was prepared to have the remaining dispute timetabled for hearing, including the filing of the Association's application for new awards to replace the Existing Awards, lay and expert evidence and submissions.
It was on 6 February 2025 that the Association filed competing proposed versions of the Existing Awards. More than eight months had been lost because of the Association's decision to prefer industrial action over timetabling the dispute for hearing, much of which was done in the face of recommendations made by the Commission that this not occur. Pursuant to s 134(2B) of the Industrial Relations Act 1996 (NSW) (the Act), when arbitrating the Commission may take into account a party's failure to comply with a recommendation.
On 7 March 2025, the Association filed a statement of grounds and reasons substantially narrowing the matters required to be determined. It contained the following claims which it sought to be included in the Existing Awards predicated on there being new three-year awards commencing 1 July 2024:

[183]

Ms Livingstone opined that the NSW Government's operating position is under pressure, with net operating deficits projected until 2027-28, and large cash deficits projected until FY28/29, with gross debt continuing to increase. Her report recorded a projected net operating deficit of $3.4 billion in FY25/26 and $1.1 billion in FY26/27, to return to a surplus of $1.1 billion in FY27/28. Ms Livingstone opined that, notwithstanding the surplus projected for FY27/28, the fiscal position remains subject to multiple risks and pressures, for example, costs of insurance, disaster recovery, increasing depreciation and amortisation expenses, increasing interest expenses, significant volatility in the NSW Government's bond yields and equity markets, and lower average revenue growth. Ms Livingstone opined that these risks and pressures and any additional expenses are likely to put pressure on the NSW Government's return to surplus.
Ms Livingstone's report projected ongoing annual cash deficits, totalling $51.8 billion from FY24/25 to FY28/29, primarily driven by borrowings to fund the NSW Government's infrastructure programs. She reported that any increase in expenses, including for additional salary and salary-related expenses over those proposed by the Health Secretary will require further borrowings in the absence of any uplift in revenue, as contemplated by the NSW Budget. This will increase gross debt and interest expenses. In turn, this has credit rating risks for the NSW Government, and if the NSW Government's credit rating is downgraded this in turn increases the cost of borrowings.
Ms Livingstone reported that Standard & Poor (S&P) downgraded the NSW Government's credit rating from AAA to AA+ in December 2020 due to operating deficits and rising debt. On 17 November 2024, this AA+ credit rating was reaffirmed by S&P, who also revised the NSW Government's rating outlook from stable to negative, because of a delayed improvement in budgetary performance "due to strong government spending". Ms Livingstone reported that the NSW Government maintains a AAA credit rating with each of Moody's and Fitch.
Ms Livingstone reported that the NSW Government's gross debt level increased from $72.6 billion in June 2020 to $166 billion in June 2025 (an approximately 130% increase). Ms Livingstone projected that gross debt will increase to $199.7 billion (an approximate 20% increase).
In respect of interest expenses, Ms Livingstone reported that the NSW Government's interest expenses have increased from $2.1 billion in FY19/20 (2.6% of revenue) to $7.1 billion in FY24/25 (6% of revenue). She projected that interest expenses will be $9.5 billion in FY28/29 (6.9% of revenue).
Accepting that evidence, we proceed on the basis that while the NSW Government's fiscal position is stronger than it has been for some years and currently sustainable, there remains limited capacity to absorb significant unbudgeted expenses without risking ongoing deficits that would put at risk the NSW Government's plans to maintain a sustainable debt position. As we note later, our decision as to both the quantum and timing of the salary increases is directly affected by this evidence.

[187]

Mr D'Amato gave evidence about how NSW Health is funded. NSW Health is predominantly funded by the NSW Government through appropriations ($20.9 billion for FY25/26), the Commonwealth Government mainly through the National Health Reform Agreement (NHRA) using "activity-based funding" ($9.5 billion for FY25/26), and other minor sources, for example, patient and other fees (forecast at $5 billion for FY25/26).
Under the NHRA, the Commonwealth is to move over time to fund 45% of the cost of operating in-scope public hospitals. The Commonwealth currently funds 35.4%.
Notwithstanding that, annual increases in Commonwealth funding of hospital services are capped at 6.5% per year which is historically less than the actual increase in costs each year. As a result, the Commonwealth funding of NSW hospitals reduced from 39.9% in FY18/19 to an estimated 35.4% in FY25/26. That has required the NSW Government to provide additional funding to meet the demand for health services. The effect of Mr D'Amato's evidence was that increases to remuneration of NSW Health employees will not be offset by a corresponding increase to Commonwealth funding.
Mr Daly gave evidence that public hospitals are predominantly funded through an activity-based budget, according to their outputs in terms of patient events and patient care. Mr Daly works with Local Health Districts (LHDs) and the Specialty Health Network (SHN) to assess historical demand and forecast future service needs, including by considering representations made by those bodies about shortfalls in their capacity to meet particular disease profiles within their local areas. He reported that the Expenditure Review Committee of Cabinet informs NSW Health of their budget for the year, which is devolved by NSW Health to LHDs and SHNs through annual service agreements. Once the budget has been agreed for a particular financial year, NSW Health is expected to operate within the terms of that budget but can obtain supplementary funding for unplanned or extraordinary expenditure from NSW Treasury, although such requests cannot be predicted in advance.
Mr Daly reported that NSW is an "efficient" jurisdiction in terms of cost per patient event or care interaction, that funding is not wasted and that it has the highest proportion of emergency department presentations seen on-time and the lowest proportion admitted to hospital of all jurisdictions. However, he opined that NSW Health faces budgetary challenges and has been increasingly unable to provide additional funding to LHDs and SHNs due to the reduction in the growth budget size.
Mr Daly concluded that "the current system in New South Wales is delivering high quality services to patients with very little funding wastage. Therefore, it will be difficult to identify further cost-savings or absorb cost increases of this magnitude". Mr Daly opined that if the Association's wage claim is granted and the Expenditure Review Committee of Cabinet does not provide funding to cover the cost of the increases, there will be a significant reduction in expenditure on other delivery of services by NSW Health. He asserted that the most likely way to reduce costs is the reduction of elective surgery, back-office functions such as IT support, allied health services, clinical support functions such as porters, outpatient services, or community health services.
Mr D'Amato also gave evidence of pressures on the NSW Health budget since COVID-19, namely cost increases across the supply chain, population and ageing-related demand growth, and recurrent costs to fund the operational requirements of new facilities. Mr D'Amato opined that "that NSW Health has reached maximum levels of efficiency. His conclusion was that "[i]n short, any increase in pay, allowances and/or entitlements will need to be accounted for and thus difficult decisions will need to be made as to what will be the relevant offset."
In light of Mr D'Amato's evidence as to the incapacity of the NSW Health budget to absorb any unbudgeted increases, we proceed on the basis that the increases we award, to the extent they are greater than those which has been budgeted, will be funded out of the NSW Budget. The notion that an increase in remuneration that we have determined to be fair and reasonable would lead to a reduction in necessary health services to the people of NSW is not just unlikely but a proposition that we consider ought not to have been put in the absence of any evidence that NSW Government will, in fact, cut services. The Secretary's evidence in that regard appeared to us to be little more than an attempt to scare the Commission into rejecting a legitimate claim for fear of the consequences to the public. We turn accordingly to examine the fiscal impact of the claim.

[188]

Assuming, as we do, that it will need to be funded by additional expenditure, we turn to considering the fiscal impact of increasing wages for nurses and midwives above that for which the NSW Government has budgeted. As the following summary indicates, the Secretary's proposed increased wages, which the NSW Budget contemplates, and has in part come into effect in the form of the interim increases, were costed at almost $3.3 billion over five years. The Association's wages claim (excluding its sick leave claim) over the same period at almost $13.6 billion, or an additional $10.3 billion.
Ms Livingstone's initial Fiscal Report calculated the total cost of the increases proposed by each party prior to the agreement reached by the Secretary and the Association concerning the night shift penalty. In a Supplementary Fiscal Report, Ms Livingstone updated her costings to account for the consent position reached by the parties as to the night shift penalty, and further instructions from the Secretary. Ms Livingstone's costings were calculated based on existing NSW Health payroll costs, with a forecasted FTE workforce growth of 1.5% per year from July 2025 onwards.
Ms Livingstone calculated that the Secretary's position would increase employee expenses by $3.2757 billion over the five years until FY28/29. She reported that funding the cost of the Secretary's position would increase interest expenses by $346.60 million over the five-year period, resulting in an increase of $3.6623 billion of the NSW Government's gross debt over the five-year period ending in June 2029.
Ms Livingstone reported that the fiscal impacts of the Secretary's position are incorporated into the FY25/26 NSW Budget. Her opinion was that, while the Secretary's position would have a fiscal impact on the NSW Government, that impact is consistent with its fiscal outlook. It is the difference between the Secretary's position and the Association's claim (or rather the difference between the Secretary's position and any increase actually awarded by the Commission) that constitutes the relevant impact on the NSW Government's fiscal outlook.
Ms Livingstone calculated that the gross cost of the Association's remuneration claim is $13.5853 billion over the five-year period ending June 2029. She calculated that the net cost of the claim above the Secretary's position is $10.3096 billion over the five-year period ending June 2029. She reported that funding that cost would cause a net increase to interest expenses above the Secretary's position of $1.115 billion over that five-year period. She concluded that there would be a net increase in gross debt over the five-year period ending in June 2029 of $11.4247 billion above the Secretary's position.
Ms Livingstone also calculated the net impact of the remuneration claim if it was subsequently replicated by a flow-on of the same increases in remuneration to the following two cohorts of NSW Health employees (which she described as "the spillover"), namely:

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Before considering spillover, if the Association's remuneration claim was funded by borrowing, Ms Livingstone reported that gross debt would increase from a projected 19.6% of gross state product (GSP) in June 2029 to 20.9% of GSP (and would increase further to 22.3% if the full wages claim were also awarded to the First Cohort).
The size of the nursing and midwifery workforce means that any increase in remuneration will have a significant fiscal impact on the NSW Budget. So much is made clear by the evidence that even on the Secretary's proposal, there would be an increase in borrowings of $3.66 billion. That is something we have carefully weighed in the overall consideration.
A limitation of Ms Livingstone's evidence was that, as presented, it does not permit anything other than the broadest assessment of the fiscal impact of the Commission allowing the Association's claim in part.
Following a request from the Full Bench the Secretary led evidence from Rian Thompson, Director, Workforce Insights and Transformation at NSW Health that the approximate value of a 1% increase in remuneration, calculated by reference to 1% of the total employee-related payroll expenditure of nurses and midwives covered by the Existing Awards for financial years 2024/25 is $74.5 million. Mr Thompson noted that this amount does not include changing costs, the value of money over time, projected employee growth rate, increases to superannuation, increases to leave liability or any changes to conditions of employment.
This evidence permits the Commission to make a broad assessment of the cost of upholding part of its claim, subject to the qualifications given by Mr Thompson. It allows us to form the opinion that the increases we have determined to be fair and reasonable, while greater than those budgeted, will not have an effect so significant as to prevent the NSW Budget maintaining a sustainable operating position or put at risk the NSW Government's capacity to maintain a sustainable debt position.
In conclusion, we proceed on the basis that:

[198]

Mr Houston's and Dr Warlters' written evidence was supplemented by oral evidence, given in November 2025. What follows is a summary of their evidence as it was given.
Mr Houston's analysis of the state of the economy proceeded upon measures of consumer price inflation, wage growth, employment and unemployment, real GSP and gross domestic product per hour worked. It was his opinion that these indicators are the most relevant for understanding the state of the economy. His evidence on the state of the economy was that: capacity pressures are easing, as reflected in inflation returning to the Reserve Bank of Australia's (RBA) target band; that wage growth has slowed but the labour market remains constrained; that the NSW economy has continued to grow in real terms since the pandemic, with restrictive financial conditions and cost-of-living pressures now beginning to ease; and that productivity growth continues to stagnate, suggesting that Australia's productivity problem is part of a long-term trend.
It was Mr Houston's evidence that, based on forecasts of the key economic indicators over the next three years, the NSW economy is gradually returning to normal following subdued growth and significant disruptions caused by the COVID-19 pandemic. He reported that while the labour market remains somewhat constrained, broader economic constraints are beginning to ease, consistent with the NSW Treasury's view of an expected "pick-up" in growth, following easing inflation and falling interest rates, and thus cost-of-living pressures softening. After his evidence was given the RBA published its February 2026 Statement on Monetary Policy containing updated data and forward estimates which reveals that the cost-of-living pressures have not softened as much as the RBA was forecasting at the time Mr Houston prepared his evidence.
Mr Houston reported that as a matter of principle, an increase in public sector salaries would be expected to have the following three effects. First, an increase in consumption, which may have the positive effect of increasing economic activity in the form of additional output and jobs, or have the negative effect of causing inflationary pressures. The balance between economic activity and higher inflation as an effect of increased consumption is dependent on the extent to which the NSW economy is capacity constrained. If the economy is capacity constrained, specifically because businesses in NSW do not have the capacity to increase their output and hire additional staff, a consumption increase is more likely to manifest in higher inflation. Secondly, arising from the first in-principle effect, an increase in the economic risks associated with high levels of inflation. Thirdly, in circumstances where the budget is otherwise expected to be in deficit, an increase in state government borrowing or the displacement of investment in public infrastructure that may have otherwise occurred.
Applying those in-principle effects, it was Mr Houston's opinion that the Association's claim if granted would have the following five effects on the state of the economy.
First, the claim would result in an increase in consumption, leading, subject to the considerations identified above, to:

[200]

Secondly, the claim would place upwards pressure to inflation, to a greater extent than NSW Treasury's forecast, which is that inflation will remain below or equal to 3% until at least FY29.
Thirdly, the claim would result in an increase in government borrowings and interest costs, beyond that already budgeted.
Fourthly, the claim would increase the forecast budget deficit in FY26 and FY27, and reduce the budget surplus forecast thereafter.
Fifthly, the claim would leave the NSW Government in a comparatively worse position than if it borrowed less, or increased its spending by an equivalent amount on infrastructure investment, which, provided that the investment is well judged, is more likely to result in stronger future economic activity or revenue, as compared with expenditure on salary increases.
We infer from his evidence that if the claim were granted only in part that would have an ameliorating effect on the opined outcomes, but that each would still manifest to some degree.
We accept the evidence of Mr Houston and take it into account in considering the overall quantum and timing of the pay rises. In particular, in determining the outcome we have had careful regard to the impact an unbudgeted increase, even on a one-off basis, will have on government borrowings and interest costs.
Dr Warlters agreed with Mr Houston that inflation is moderating following the COVID-19 pandemic and that the economy is operating close to capacity, which is reflected in a historically low level of labour underutilisation. The tightness of the labour market and slow rate of productivity growth in the economy means that the increases in real wages exceeding those justified by aggregate productivity growth could trigger higher inflation.
To analyse the likely effect of proposed wage scenarios on the NSW economy, Dr Warlters used an economic model called the MARTIN Model. The MARTIN Model is used by the RBA to produce forecasts and conduct counterfactual scenario analysis relating to how a wages "shock" can impact the economy.
Applying the MARTIN Model to the Secretary's position shows no deviation from the baseline forecasts - that is, no wages shock - because the NSW Budget assumes that wages are consistent with the Secretary's position.
In modelling the extent of the wages shock arising from the Association's position, Dr Warlters calculated both the "direct" and "indirect" effects on the NSW economy if the Association's position was adopted: the "direct" effects being pay increases to nurses and midwives employed by NSW Health, and "indirect" effects being spillovers to other NSW Health Service workers, NSW private sector nurses and midwives, other NSW private sector health workers and private sector workers more broadly.
Dr Warlters set up the model to create a forecast on the assumption that:

[202]

At least in part, Dr Warlters considered that these assumptions were reasonable, and obtained the figures underlying these assumptions based on an academic paper prepared by Professor O'Brien in 2024 and an IMF Working Paper prepared in 2023.
Dr Warlters reported that, if the Association's claim is granted and flows through in its entirety to remaining employee cohorts in NSW Health, and spills over to NSW private sector workers, the model calculates that there would be a 2.49% increase to GSP, 1.75% increase to national CPI, and 0.85% reduction in NSW unemployment. In the event of no flowthrough or spillover, Dr Warlters reported a 0.69% increase to GSP, 0.48% increase to national CPI, and 0.23% reduction in NSW unemployment.
Dr Warlters calculated, based on indicated RBA modelling, that the RBA could respond to wage increases in line with the Association's position by increasing interest rates by between 0.5% (in the event of no flowthrough or spillover) and 1.75% (in the event of flowthrough and spillover). Dr Warlters opined that this would slow growth and largely neutralise the boost to GSP and the reduction in unemployment described above.
In his oral evidence Dr Warlters agreed with the proposition that the precise percentage figures can create the illusion of scientific accuracy or certainty. His evidence was that while the Commission would not presume the precise outcomes modelled would in fact eventuate, they are indicative of the types of outcomes that might be expected over a two-to-four-year period. Complicating the picture was the fact that the MARTIN Model used was modelling the effect over a 10-year period, but Dr Warlters considered most of that impact would in fact occur between two and four years after the "shock". A further complicating factor in placing reliance on the outcome was that the model was asked to assume that the RBA would take no steps to increase rates over that period, when, of course, in reality it would, and there would also be a myriad of other factors affecting GST, CPI and interest rates. In other words, the model deliberately and necessarily, in order to show the effect of a particular "shock" over a long period, contains assumptions that are somewhat unreal.
The Association relied upon two expert reports of Martin O'Brien, MBA Director of the Faculty of Business and Law at the University of Wollongong, dated 26 April 2025 and 25 August 2025, respectively.
Professor O'Brien responded to the use of the MARTIN Model by Dr Warlters. Professor O'Brien considered both the use of such an econometric model and also the wage shock modelling strategy to be appropriate. He also expressed concerns about the appropriateness of the particular scenarios modelled by Dr Warlters and the evidence and assumptions underlying the calculation of those wage shock scenarios.
First, Professor O'Brien agreed that 50% of the Association's position may spill over to private sector wages, but qualified that conclusion by reference to the fact that a number of enterprise agreements for private sector nurses have recently been approved and such that wages for those nurses are locked in.
Secondly, while Professor O'Brien agreed that small spillovers occur generally between average public sector and private sector wages, he opined that most empirical research pointed towards private sector wage leadership in NSW. In respect of this issue - as set out above - Dr Warlters assumed a 10% spillover between average public sector and private sector wages generally, increased to 12% for an increase to nurses' wages. Professor O'Brien expressed concerns about the reasoning behind this increased spillover coefficient but conceded that such a small increase in the coefficient was unlikely to be a major influence on modelling.
Thirdly, Professor O'Brien disagreed with the assumption that wage increases associated with the Association's position will automatically spill over to other cohorts in the NSW Health Service. That is because there is not necessarily the labour mobility between different sectors in health, which is a precondition for a wage spillover. Professor O'Brien opined that:

[218]

Martin O'Brien informed the Commission that examining a similar snapshot in time, it is the case that in the December quarter of 2024 real wages for NSW nurses and midwives were 6.3% lower than that for the September quarter of 2020.
There is force in the view of Gregory Houston giving expert evidence for the Secretary that such decisions should not be unduly affected by any single economic shock or cycle or the point in the cycle at which the relevant decision is made. For that reason, it was Mr Houston's opinion that "assessing the change in real wages in the Australian and NSW economies since the September 2011 quarter is more appropriate".
Mr O'Brien's evidence was that the real wages of nurses and midwives in December 2024 was 2.5% lower than September 2011, disregarding increases in superannuation contributions.
Like the Full Bench in the Firefighters' Awards Case, we are satisfied that given the extraordinary situation caused by the COVID-19 crisis, which led to below-trend increases combined with significantly above-trend inflation that was not anticipated when the Commission last set rates, it is appropriate that there be a one-off reset.
The Association's claim did not seek to have the Commission determine increases by establishing separate sums for each aspect of its claim to reach an overall total. Even if it had, we would not have been minded to take such an approach.
In upholding the claims to address gender undervaluation and work value change we have determined to award an increase which will as a matter of fact give rise to a one-off reset that will cause wages for nurses and midwives to rise in real terms over the life of the Awards, and at a greater level than the increase in real terms that we would have awarded had those claims not succeeded.
As a result, there is no need to separately determine the particular increase to wages necessary to ensure that wage rates have not reduced in real terms. The final increase arrived at has been determined mindful of our findings in this section of the decision.

[221]

The Association contends as a separate ground to justify its wage claim that the current rates of pay in the Existing Awards are affected by historical undervaluation on the basis of gender, and as a result, do not properly reflect the true value of the work performed by nurses and midwives, and accordingly, are not fair and reasonable.
Relying on the expert evidence, the Association invites the Commission to find that historical wage-fixing exercises have reflected an approach to wage fixing that gave primacy to masculinised skills (particularly technical skills) with the result that work considered "women's work" was not properly valued. In particular, that prior wage-fixing exercises failed to identify and value "invisible skills".
The Association uses the term "invisible skills" to describe skills that have been ignored, or downplayed as less valuable than skills required in male-dominated occupations because of conscious or unconscious understandings of gender - namely skills that were considered inherent attributes of women that are part and parcel of what was historically seen as "women's work". These are predominantly caring skills, of the sort associated with occupations such as early childhood education, aged care and nursing, which have historically had a workforce that was overwhelmingly female.
The Association contends that in respect of nursing these invisible skills manifest in the cognitive, emotional, and psychosocial aspects of nursing, including caring and interpersonal skills, but also extend to higher level invisible skills, for example, dynamic workflow coordination and cultural competency. As counsel appearing for the Association said in opening, these skills are labelled invisible because, if they are done well, they can go unnoticed as they often do not produce an immediately quantifiable result.
The Association submits that these invisible skills are in fact inseparable from the "technical" aspects of nursing and midwifery, and on one view, the core element of such work.
The Association submits that these skills have never been expressly assessed in any wage fixation exercise and cannot be assumed to have been properly understood and taken into account at any point.
The Association's submissions give various examples of these invisible skills in practice which we accept on the evidence presented to us are part and parcel of the work of NSW public sector nurses and midwives. We deal with these skills and the evidence supporting them below, but for now identify what they are at a high level:

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(1) complex communication skills, which are required to quickly build rapport while simultaneously evaluating and assessing patients;

(2) forming relationships with patients, which increases the likelihood that patients will fully disclose critical and lifesaving matters, for example, midwives who build the necessary relationships of trust to facilitate the disclosure of domestic violence;

(3) using emotional intelligence to manage trauma and emotionally complex situations, for example, midwives providing the compassionate environment required for the needs of a patient experiencing a miscarriage;

(4) high-level investigative skills in traumatic situations to identify and report harm, for example, a paediatric nurse identifying children at risk of harm and making appropriate reports;

(5) caring for linguistically diverse patients and recognising cultural requirements which arise;

(6) the additional interpersonal skills required for vulnerable patients, for example, developing skills to learn new ways to communicate with non-verbal patients;

(7) acute observational skills required to pick up non-verbal cues, for example, to support patients with dementia to the toilet because they cannot alert a nurse;

(8) complex problem solving and critical thinking, for example, community mental health nurses who perform complex assessments, including whether someone is experiencing delusions, has been neglected or harmed, or is going to harm themselves or someone else;

(9) additional skills to assess and manage patient care without physical touch, for example, midwives remotely educating a non-birthing clinician during a birth, providing support through a camera;

(10) managing patient aggression to de-escalate violence, for example, using high-level observational skills to identify signs of early agitation in patients;

(11) the capability to perform their role while subject to various physical and sensory demands, for example, a nurse concentrating and communicating within the environment of a loud emergency department;

(12) physical demands, for example, toileting, showering and lifting patients; and

(13) self-regulating in the face of emotionally challenging situations, for example, stroke unit nurses who experience patients who die by suicide while on the ward.

[227]

The Secretary does not take issue with the contention that the skills described by the Association as "invisible" are of great value, nor with the proposition that they are inseparable from the "technical" aspects of nursing and midwifery. Nor does the Secretary take issue with the proposition that nurses and midwives exercise such skills (although, as noted below, the Secretary points to a tension in relying on such skills given evidence by the Association that changes in the way work is performed have impinged on the exercise of such skills).
The Secretary nevertheless contends that the Association has not made out a case that they have been and remain undervalued.
The Secretary contends that it is for the Association to make good an evidentiary case that such skills have not been previously considered, and more generally that (whatever the position was historically) nurses and midwives today remain or are undervalued for gender-based reasons. In essence, the Secretary's case is that more is required than to establish that nurses and midwives have always been predominantly women doing work that is recognised to have a significant "caring" aspect.
The Secretary places particular reliance on the Professional Rates Case, which it contends (at least for registered nurses) lifted rates to the same level of professionals in the health sector, leaving no room for the argument that there remains a gender-based undervaluation.
The Secretary submits that whether or not the rates of pay in the Existing Awards are undervalued because of gender is a matter for expert evidence. The Secretary makes the following submissions as to why the expert evidence does not give rise to a finding of gender-based undervaluation.
First, that Professor Smith's and Dr Lyons' expert evidence rose no higher than there being a "possibility" of gender-based undervaluation. In aid of that submission, the Secretary notes that their analysis rests solely on the use of gendered language in awards between 1947 and 1980, combined with the absence of a decision of the Commission which reviewed or assessed the extent to which gender had influenced considerations of work value. The Secretary also notes that Professor Smith gave evidence that the absence of an assessment by the Commission on gender grounds was "suggestive" of gender undervaluation and accepted that this ultimately amounted to the conclusion only that the possibility of gender undervaluation could not be discounted. The Secretary concludes that a mere possibility of gender undervaluation is not sufficient to establish in fact that there is, or has been, gender undervaluation.
Secondly, Professor Smith's and Dr Lyons' analysis could not apply to Nurse Practitioners or midwives. In aid of that submission, the Secretary notes that, in cross-examination, Professor Smith could not identify how their historical assessment on gender undervaluation was relevant to the Nurse Practitioner classification, which was only introduced in 2001, and did not otherwise consider how rates of pay for Nurse Practitioners were set at all. The Secretary also notes that Professor Smith accepted in cross-examination that the analysis did not extend to midwives at all. The Secretary concludes that the Commission could therefore not be satisfied that there was a sufficient case in support of gender undervaluation for nurse practitioners or midwives.
Thirdly, Professor Smith and Dr Lyons did not adequately consider "the benchmarking of nurses' and midwives' wages with other 'professional' employees in other health disciplines" in the Professional Rates Case. In aid of that submission, the Secretary notes that, in cross-examination, Professor Smith conceded that they focussed on cases after 2001. The Secretary submits that in the Professional Rates Case, the Commission made salary rates with proper regard for the position of nurses as health professionals working in the same general environment as other health professionals such as physiotherapists and scientific officers. The Secretary contends that this historical difference distinguishes the Existing Awards from the (federal system) Nurses Award 2020 considered by the FWC in Re Aged Care Award 2010 ("Stage 1 Decision"),[41] and Re Aged Care Award 2010 ("Stage 3 Decision"),[42] in which the FWC noted that the failure to recognise "invisible skills" leads to the undervaluation of work.
The Secretary contends that, to the extent that employees in a classification in the Existing Awards are paid less than other comparable health professionals, the Commission would not presume that such a difference is evidence of undervaluation or that such a difference is gender-based. The Secretary submits that, in circumstances where other comparable health professions are now female dominated, each award must be analysed against its own unique history, where different rates of pay may be explicable by reference to features of their respective work which have not been explored in these proceedings.
The Secretary also submits that there are "compelling reasons" why recent decisions of the FWC concerning gender-based undervaluation are not apposite to the resolution of the Association's claim. First, because these decisions relate to nurses in the aged care sector, consideration of the position for nurses "other than in aged care" has not been completed. Secondly, because the historical benchmarking of federal award classifications was against the masculinised "C10 Metals Framework" which assumed work performed by women was unskilled or lower skill and which was a material feature of that gender undervaluation finding, a legacy not shared by the Existing Awards. Thirdly, because the federal award system had never increased minimum award rates to recognise the transformation of nursing from a trade to a profession requiring a university degree.
Finally, the Secretary contends that there is no demonstrative evidence that nurses deploy caring skills that are undervalued. The Secretary submits that the evidence of nurses called by the Association is that an increasing amount of a nurse's day is spent on documentation and meetings, there is an increased focus on key performance indicators, leaving nurses with less time for patient-centred care, and that an increasing amount of a nurse's day is spent on assessments, treatments and observations. In short, the Secretary submits that the evidence was that registered nurses and enrolled nurses now spend considerably less time with patients due to competing work priorities.
The Secretary submits that, in the event the Commission finds against its position on gender undervaluation, the appropriate outcome would be for the Commission to defer consideration of the quantum of any wage increase on the ground of gender-based undervaluation until a further evaluation was conducted because the Association did not attempt to discharge its onus to quantify the degree of undervaluation for any classification has not been discharged or specify the quantum of its claim on this ground.
In order to address the parties' competing contentions we first consider the history of the existing awards, the expert evidence, and the recent federal consideration of gender undervaluation for nurses and midwives, before setting out our conclusions.

[229]

There is no question that the NSW Commission historically set rates of pay for nurses and midwives on the basis it was work done by women; that is, on a gendered basis.
The rates of pay for nurses and midwives working in public hospitals in NSW was first set by an award of this Commission on 10 June 1936. In Re Hospital Nurses, &c. (State) Conciliation Committee ("1936 Award Case"),[43] Webb J made the Hospital Nurses (State) Award in respect of "registered nurses, trainees or pupil nurses, and assistants in nursing" in NSW (1936 Award).[44] This award was the first in a series of more than 300 new or varied awards culminating in the current Public Health Award.
While the 1936 Award Case and the terms of the 1936 Award do not expressly state that the rates of pay were set on a gendered basis, that is clear from the following two matters.
At the time, and until the basic wage was finally phased out by the repeal of the Industrial Relations Act 1991 (NSW) on 13 June 1996, rates of pay were set by reference to the basic wage (originally the "living wage") plus a margin for skill.
In 1936, by virtue of the Industrial Arbitration (Amendment) Act 1936 (NSW), separate living wages - being the minimum rates of pay permitted in industrial instruments - were set for male and female employees in NSW.[45] In 1936, following a review by the Commission, the living wage for male employees was set at £3 9s 0d per week, while the living wage for female employees was set at £1 17s 6d per week, representing 54% of the male living wages (rounded to the nearest six-pence).[46]
The chapeau of the 1936 Award provides that the "Living Wage Basis" for the award is "£1 17s 6d per week" - the female living wage.[47] The rates of pay in the 1936 Award commence at the female living wage, of £1 17s 6d, with higher classifications having a higher rate based on the additional skill above the base rate. All the rates were set below the male living wage, apart from highest pay classifications applicable to "Sisters" and "Matrons".[48]
Hence, it is apparent that the rates originally set were determined on the basis that it was work done by women (and only by women) and at a significant discount to the rate applicable if the work had been done by men.
Secondly, it is implicit in the 1936 Award Case and the 1936 Award that nursing was understood to be the work of women. So much is clear from the gendered use of the personal and possessive feminine pronouns throughout the 1936 Award Case and the 1936 Award. For example, the 1936 Award Case provides:

[236]

In 1953, in Re Hospital Nurses (State) Award,[57] the Association (under its former name) again applied for the Public Health Award to apply to males as well as females.[58] At that time, there were approximately 50 male registered or trainee nurses employed in public hospitals in NSW. The initial claim made by the Association was for males and females to be paid at an equal rate of pay that was based upon the male basic wage, providing a significant increase to the rate of pay of female nurses.[59] However, this claim was abandoned by the Association during the hearing. Instead, the Association applied for the male nurse's salary to be set based on the male basic wage, with the same margin above the male basic wage as the existing margin between the salary for a female nurse and the female basic wage, plus an additional amount to account for the fact that the pre-existing female margin included weekend and shift work loadings calculated based on the female basic wage, and the male margin should be increased because those loading should be based on the male basic wage.[60]
Justice Richards made an award that included different rates of pay for male and female nurses, however, he did not accede to the Association's application to set the salary for male nurses based on the male basic wage but with an increased margin. This was because Richards J (somewhat ironically, given the nature of the case we are asked to consider) concluded on the evidence before him that "the value of the work of a male nurse to his employer is less than is that of a female nurse".[61] That was because, on the evidence before him, female nurses could attend to all wards, whereas male nurses could only attend to male and children's wards, and also because the training of a female nurse covered a wider field than the training of male nurses (although, Richards J noted that male nurses did receive extra training in urology, not received by female nurses at that time).[62] In rejecting the application, Richards J also considered that the pre-existing difference between the female basic wage and the female rate could not be treated as the margin for skill because Kinsella J had fixed the rates in 1947 based on an overall assessment of the work without setting out marginal allowances for any incidents of the work.[63]
The outcome was that Richards J made an award that included different rates of pay for male and female nurses, with male general nurses being paid about 25% more than female general nurses.[64] The male rates were set, also based on an overall assessment by Richards J, such that the difference between the male basic wage and the male rate was the same as the difference between the female basic wage and the female rate. However, practically this meant that Richards J had set a smaller margin for male nurses (because of his conclusions concerning work value) as the female margin had included loadings calculated on the basis of the female basic wage. Notwithstanding his conclusion concerning the lower work value of male nurses, the outcome was that male nurses were required to be paid more than female nurses due to the higher basic wage component of their salary. Male rates were only set for classifications which were in fact filled by male nurses at that time.
Richards J also removed the gendered language within clauses of the Public Health Award which were to apply to male employees.[65] For example, the classifications of "Junior Sister", "Sister", "Senior Sister", "Tutor Sister", and "Supervising Sister" were replaced by "Junior General Nurse", "General Nurse", "Senior", "Tutor", and "Supervisor" respectively "in order to provide for males who may hold one or more of these positions".[66] The term "Matron" persisted because no male employees were employed in that role. Additionally, masculine personal and possessive pronouns were inserted into the Public Health Award, for example:

[240]

The rates of pay for male and female employees under this award were fixed by reference to the basic wage set for adult male employees.[71]
On 5 January 1978, in Public Hospital Nurses (State) Conciliation Committee,[72] Conciliation Commissioner Cansdell removed the remaining gendered language from the Public Health Award. The Conciliation Commissioner removed the classifications of "Matron", "Deputy Matron", and "Assistant Matron" from the Public Health Award, replacing them with "Director of Nursing", "Deputy Director of Nursing", and "Assistant Director of Nursing", respectively. Subject to three instances, which appear to be oversights, the female-only pronouns and language was removed from the Public Health Award by this decision.
Although male and female nurses in the same classification were, by 1978, being paid same the rate, the implementation of the equal pay principle did not examine whether the skill margins in the Public Health Award were properly valued. Rates of pay had been set and maintained by reference to two components: basic wage plus a margin for the skill of the work performed. As a result of Conciliation Commissioner Johnson's decision the base rate was adjusted, but the rate of pay set by the Conciliation Commissioner was based on an assessment of skill determined at a time when the work was assumed to be work done only by women, at a time when, we accept (as discussed below in respect of the expert evidence) certain skills were considered to be inherent in women of the type that tribunals historically undervalued. No subsequent decision of the Commission has addressed specifically the question of whether the rates previously set were undervalued on the basis that they were set on an assumption that the work is work done by women. While there was a substantial increase in rates at this time arising from lifting the base rate to the "male" rate, we are of opinion that the rates at that time were undervalued arising from those assumptions.
This is because the work until this point had never been explicitly valued by reference to the "invisible skills" identified in the expert evidence in this case. This accords with the findings of Glynn J concerning nurses in Report to the Minister - Pay Equity Inquiry, Reference by the Minister for Industrial Relations pursuant to s 146(1)(d) of the Industrial Relations Act 1996 ("1998 Pay Equity Inquiry").[73] In the 1998 Pay Equity Inquiry, Glynn J found that previous work value cases emphasised "more generally accepted male skills, such as technology, able to be easily inspected" and did not recognise "so called 'softer' and 'non-technical'" skills.[74]

[243]

The Association also contended that existing nurses who were not trained under the new system should also be classified as "professionals" because there was no good reason to distinguish between nurses who qualified by way of a diploma, and those who qualified by way of in-hospital training.[78] In aide of these contentions, the Association called evidence that compared the work of nurses with the work performed by acknowledged professional employees within the public hospital system.
During the course of the above proceedings, the Industrial Relations Commission of Victoria handed down a decision which included an express finding "that Nursing is a professional occupation".[79] Consequently, this Commission adjourned its proceedings to allow for a joint conference with the Victorian Commission, which included all the parties to the NSW and Victorian proceedings, to consider actual salary increases in light of this finding.[80] In the course of that joint conference, interim salary increases were agreed for NSW and Victoria which gave effect to the finding that registered nursing is a professional occupation. On 30 November 1988, this Commission increased salaries in the Public Health Award on an interim basis, ranging between $7.50 to $25.00 per week, in accordance with the interim agreement reached between the Association and the Health Administration Corporation.[81]
Following the Commission's interim increase, further joint interstate conferences were held to finalise professional rates of pay for nurses.[82] At the conclusion of these conferences, the presiding members of each commission made a joint statement advising that an offer from each government be accepted whereby "the rate of UG1 qualified nurse [the top of the scale, now RN8] should be the maximum of the hospital scientist grade 1 in Victoria and the maximum of the hospital physiotherapist scale in NSW".[83]
On 21 June 1989, following "intensive negotiations", the Association and Health Administration Corporation informed the Commission that it had agreed to increases to wages which finalised professional rates for nurses.[84] As the table below records, it replaced the top level in the registered nurse scale with the "UG1" classification, which saw the top rate ultimately increase by 36.1%. In the Professional Rates Case, which approved the finalised professional rates, the Commission accepted that:

[267]

It was Professor Cooper's evidence that there has historically been and still is an undervaluation of the skills, knowledge, and responsibility involved in feminised frontline work, including roles in health, human services and education where roles requiring emotional labour, judgement, and care and responsibility for others have been treated as low skill, despite high levels of training and credentialisation. Her evidence is that the gender composition of the workforces of these sectors (that is, overwhelmingly feminised) has contributed to the long-term and systematic undervaluation of the work, and wage-fixing systems have failed to properly account for the complexity it entails and the contribution it makes.
Professor Cooper relied on empirical research that award structures, job design, and regulatory mechanisms have embedded undervaluation in feminised sectors constructing compressed classification structures, limiting recognition of skills, enabling poor-quality flexibility to flourish and constraining career progression. Professor Cooper noted that this systemic pattern has been acknowledged in industrial cases and addressed through purposeful legislative, regulatory, and policy reform. She referred to the active process federally to examine whether priority modern awards covering large groups of women have entrenched gender-based undervaluation, and in NSW, to several recent government publications which identify the important contribution that highly feminised sectors make to the economy and society of the state as having "historically undervalued" and contributing to the NSW gender pay gap.
Professor Cooper opined that feminised frontline sectors are essential for, and not merely peripheral to, the functioning of the economy and society. She explained that the COVID-19 pandemic revealed how central these roles are to society. Additionally, these roles play a crucial part of shaping gender equality across the labour market.
Professor Cooper also explained the gendered impact of the COVID-19 pandemic globally. She gave evidence that it impacted heavily feminised frontline workers through a combination of job loss, exposure to health risks, more intense unpaid care responsibilities, and more insecure work, with 55% of people who lost their jobs in the first year of the pandemic being women. Professor Cooper explained that at the same time the closure of schools and childcare facilities drove a spike in women's unpaid work and a "traditionalisation" of domestic labour, with women taking on a greater load and share of home-learning and household work, constraining labour market participation.
Professor Cooper's report provided broad expert evidence as to the recognised existence of gender undervaluation in respect of work that has traditionally been done by women. While her eminence in the field was not questioned, the weight we can give her report suffered somewhat from being cast in broad terms without much in the way of explanation and citations, meaning that we must be somewhat circumspect in our ability to rely on it to form firm conclusions as to the existence of gender-based undervaluation of the wages of feminised front-line workers and nurses and midwives in particular. In that regard we note that the third reason she gave for why gender undervaluation has arisen in feminised industries (inadequate or inferior bargaining power) is not applicable, given how highly effective the Association is and has been. Further, as to the fourth factor (feminised work being of "low job quality"), if that was ever historically the case, it has not been the case in respect of registered nurses and midwives for many years.
Nevertheless, noting that its broad conclusions were not put in issue by other expert evidence and were not seriously challenged in cross-examination, we accept the Professor's conclusions that feminised work has historically been undervalued, and consider that a useful starting point in considering whether that is the case for nurse and midwives. Of the four reasons the Professor gave as to why such undervaluation has occurred, we accept, for the reasons that follow, that the first two arise on the case before us: the work in question involves the exercise of certain invisible skills, sometimes referred to as caring skills, that have historically not been adequately valued; and such skills have not previously been expressly considered by the Commission in setting rates of pay.

[268]

Professor Smith has published and presented widely on employment relations with a special focus on gender pay equity. Dr Lyons also has expertise in industrial relations, including in respect of gender relations and equality. Professor Smith and Dr Lyons gave evidence, by way of a joint report, to the FWC in its proceedings concerning gender-based undervaluation and work value in federal aged care and nursing awards.[141] Professor Smith gave oral evidence and was cross-examined. The Professor gave her oral evidence in a cautious and appropriate manner that was fair and intellectually honest, befitting an independent expert witness. No expert evidence was led challenging Professor Smith and Dr Lyons. We accept the evidence of Professor Smith and Dr Lyons.
In summary form, Professor Smith and Dr Lyons advanced the following five propositions. First, in general, feminised workforces have tended to be undervalued on the basis of gender because certain invisible skills commonly found in work that is female-dominated, such as caring skills, have historically not been adequately valued; while attributes of work common amongst male-dominated occupations, such as technical skills, have been seen as "higher value" skills. Secondly (before examining the Existing Awards and specifically rates of pay for nursing in NSW), nursing as a feminised industry has historically been undervalued because nursing, being seen as the work of women due to gendered assumptions, has not valued the caring nature of the work as a higher-order skill. Thirdly, the rates of pay for nurses in NSW public hospitals covered by historic versions of the Public Health Award were initially set on the basis that nursing was the work of women. Fourthly, no subsequent decision of this Commission has addressed any historic undervaluation. Accordingly, fifthly, gender undervaluation may persist in the Public Health Award.
Professor Smith and Dr Lyons began by setting out the gender profile of the nursing workforce in Australia. By reference to 2021 Australia-wide data contained within research reports published by the FWC, the authors concluded that nursing is "highly feminised" with 98.9% of midwives, 87.9% of registered nurses, 86.6% of nurse unit managers, and 89.9% of enrolled nurses being female.
Professor Smith and Dr Lyons then turned to their "understanding of gender-based undervaluation". They opined that undervaluation - as a general concept - occurs when a higher level of effort, skill or commitment for a given wage level, or the job itself, may require a higher level of effort or skill than might be reasonably expected at that wage level. Gender-based undervaluation occurs when "[a] higher value is attributed to jobs or occupations typically carried out by men or associated with male-stereotyped skills, and so discrimination does not take place against individuals but against the types of jobs that they do". In other words, male-dominated occupations, or stereotypical male tasks, are rewarded more highly than "women's work". The authors conclude that gender-based undervaluation refers to work value practices that are impacted by gender and which contribute to a failure to recognise work value in assigned wages.
Professor Smith and Dr Lyons noted that the FWC has adopted this reasoning, identifying:

[272]

The first of those two sources has a significant limitation. The AustLii database of the NSW Industrial Gazette is incomplete. It does not contain any volumes of the NSW Industrial Gazette after 1950, and its 1902 to 1950 collection is not complete. By way of example, it does not contain the first version of the Public Health Award published in 1936.
From the awards they found they identified some examples of gendered language in predecessor awards between 1947 to 1980. A more comprehensive history of the language of the awards has been set out above, in our summary of the history of the Existing Awards. As that summary demonstrates, gendered language was a feature of the award from its inception in 1936 until its removal in 1978 (other than in respect of clauses referring to Directors of Nursing, where gendered language remained until 1980).
A weakness of their review of the industrial history of the Public Health Award was that it contained no review or analysis of the decisions of the Commission between 1936 and 1978 to explain how, why, or when gendered language was included and then excluded from the Public Health Award. Similarly, their review did not take into consideration the history of separate rates of pay for male and female nurses and the impact of that removal on the wages of nurses.
Notwithstanding the weaknesses we have identified above, we have no difficulty accepting the conclusion of Professor Smith and Dr Lyons that the Public Health Award commenced with - and for a period of time subsisted with - a significant amount of gendered language to describe the work of nursing.
Professor Smith and Dr Lyons opined that "this gendered language is indicative of historic gender-based undervaluation of nursing work". We take that to mean that gendered language identifies that the work was considered "women's work" such that we can infer that the rates were valued accordingly.
We accept that proposition, which is confirmed by other aspects of the award history, as we have set out earlier. When the rates were first set, and for the following 17 years, the rates were set on the basis that only women did the work. After men first started to be employed the award recognised that fact by setting a higher rate for them, but on the basis that their work value was lower for the reasons explained earlier.
Professor Smith and Dr Lyons then discussed the sources in support of their conclusion that, in general, feminised workforces like nursing have been historically undervalued, and that, in particular, nursing has historically tended to be undervalued because it is seen as the work of women. In particular, the authors referred to:

[274]

Professor Smith and Dr Lyons opined that nurses working in the NSW public health system have been subject to several work value assessments by this Commission, which have focused on "more easily able to identify technical aspects of the work and not 'invisible skills'". The authors noted that in the 1998 Pay Equity Inquiry,[146] the Association conceded their work value cases focused on "high tech" areas of work as they are "more generally accepted male skills" and downplayed the interpersonal and caring aspects of nursing work. In the 1998 Pay Equity Inquiry, Glynn J noted that work value mechanisms can undervalue work where "'softer' or 'non-technical' (but nonetheless significant and important skill and responsibilities) are prevalent".[147]
The authors concluded that the challenges of identifying the work value of the care aspect of nursing lead to an emphasis by the Association on the technical clinical aspects of the work, which more easily conform to the masculinity of work value criteria, and as a result, subtle skills, and skills related to emotional labour and caring work remain invisible.
Professor Smith and Dr Lyons searched "various industrial and legal data bases to identify applications by the Association" before this Commission for pay increases on the work value basis. The authors identified and analysed the five decisions of this Commission during the last major arbitration of wages before this proceeding. The authors argued that the work value cases for nursing before this Commission focused on "traditional" understandings of work and skills and not emotional labour and invisible work. The authors concluded that only the 2003 Nurses Work Value Case involved any examination of gender-undervaluation and this was restricted only to assistants in nursing,[148] suggesting that "traditional and masculine ideas of work value were advanced by the Association and not the caring and relational aspects of feminised occupations generally, and nursing work, in particular".
Professor Smith and Dr Lyons concluded:

[278]

In summary, in their first report Professor Smith and Dr Lyons concluded that the setting of rates based on the expectation that nurses would be women which was implicit in the award until the mid-1980s was never explicitly addressed and as they could find no evidence that the pay setting process in the award was ever done in absence of gendered conceptions of the value of the work "the influence of historic gender-based undervaluation should not be disregarded".
This overall conclusion was confirmed by Professor Smith, who agreed during cross-examination with the proposition that in light of the award history "one can't discount the possibility of gender-based undervaluation".
The Secretary relies on this to urge us to find that the evidence does not go so far as to establish on the balance of probabilities that there is gender undervaluation. While not without some validity, we rather think the submission misunderstands the evidence Professor Smith gave. It was her opinion, with Dr Lyons, that there was clear evidence that the award over a lengthy period had rates set on assumptions as to it being the work of women and that history does point to undervaluation. Their reticence to be definitive is properly to be seen as appropriate caution arising from the absence of express evidence that such matters were positively ignored. They could not be definitive given the Commission has never expressly considered certain skills that have been found in respect of other awards to be skills overlooked or undervalued because they were seen as inherent female attributes (e.g. caring skills). To be definitive they would have to know that the Commission did not have regard to them - but being unable to identify any express consideration of them, they conclude there is (at least) the "possibility" that they have not been properly considered in the exercise of setting rates.
Furthermore, Professor Smith and Dr Lyons conclusively identified features of nursing and midwifery work performed by the Association's witnesses which they characterised as "invisible skills". Those skills were described as including "interpersonal and contextual awareness, verbal and non-verbal communication, emotional management and dynamic workflow coordination", and were identified as constituting common themes in the performance of work as reflected in the witness statements they reviewed. The existence of invisible skills was not challenged in the cross-examination of Professor Smith.
Significantly, Professor Smith and Dr Lyons stated that the skills disclosed in the Association's evidence were "aligned to those that have been identified as invisible or under recognised skills in recent industrial assessments of gender undervaluation" (emphasis added).
One such recent and acutely relevant assessment was conducted by the FWC in its Stage 1 decision concerning nurses in the aged care sector. As we set out in more detail below, the Full Bench of the FWC considered Associate Professor Junor's application of the "Spotlight Tool" to analyse the work of three classifications of direct care workers (registered nurses, enrolled nurses and assistants in nursing) and the minimum rates applicable under the relevant modern award.[150] Assoc Prof Junor is a researcher in the field of skill identification, particularly in feminised service and care sectors. While the FWC's consideration of Assoc Prof Junor's evidence and the methodology she adopted is addressed below from [277 ], it is sufficient for present purposes to note that one of her conclusions arising from the Spotlight analysis revealed that, "as a result of the invisibility of the skills" (emphasis added) she identified, "the degree of skill, responsibility and effort required in each classification is under-recognised".15[151]n other words, at least in the absence of any work value assessment that has explicitly recognised these type of skills, the very nature of the "invisible skills" identified itself establishes that they have been under-recognised. As Assoc Prof Junor explained in the Stage 1 decision:

[280]

In assessing the expert evidence on gender undervaluation, we consider that the identification of "invisible skills" by Professor Smith and Dr Lyons by reference to the Association's evidence is indicative of under-recognition and thus undervaluation.
In light of their evidence, the history of the awards set out above, and the evidence of Professor Cooper, we consider the "possibility" that caring or invisible skills have not been properly considered in the exercise of setting rates much more likely than not, and find that gender undervaluation existed prior to the Professional Rates Case increases. Further, anticipating what we deal with below, while addressing historic undervaluation, we cannot be satisfied that the Professional Rates Case entirely addressed gender undervaluation for registered nurses and midwives, and find that it did not do so in respect of enrolled nurses and assistants in nursing.
Professor Smith accepted that the two reports she produced with Dr Lyons contained limitations. The first limitation was that they considered nurses and midwives as a whole, without examining whether there may be differences in the potential gender undervaluation between different nursing grades, for example, between assistants in nursing, enrolled nurses, and registered nurses. They did not discuss at all higher nursing grades such as clinical specialist grades, management grades or the grade of Nurse Practitioner, which was not created until 2000. The Secretary urged that we further find that the analysis could not apply to midwives, as that classification, like Nurse Practitioners, has been created at a later time.
As to the question of the lower-level nursing grades, enrolled nurse and assistant in nursing, Professor Smith did not engage in a separate exercise and was not asked about them. We have little difficulty concluding from the evidence of Cooper as well as Smith and Lyons that in respect of junior positions, where a higher proportion of the work is non-technical and clinical and a greater proportion is caring in nature, they would be more likely to have been historically undervalued, and to a higher degree. That conclusion is borne out by recent federal consideration of such positions in the aged care sector noted above and which we address in more detail below.
To the extent that Nurse Practitioner was a grade created in 2000, it does not follow that it could not be affected by gender undervaluation. While we have no evidence as to how the initial rate for Nurse Practitioner was set, there is no reason to suggest it was not set by reference to, and at a premium to, the then existing rates of pay for registered nurses.
As for midwives, while they have been separately recognised from nurses since at least 2006, their rates of pay are exactly the same. If there was historic unaddressed undervaluation of nurses, it has directly translated into the rates for midwives.
The second limitation that Professor Smith accepted in cross-examination was that the reports do not attempt to assess the work of nurses (beyond identifying from evidence they read that it is work that involves "invisible skills") and more importantly did not attempt to determine the extent to which that work is in fact undervalued. As Professor Smith accepted, if the work of nurses and midwives is not undervalued then it follows that there is no gender undervaluation. For the reasons we address below, we are satisfied that the work of nurses and midwives is currently undervalued. The extent to which that undervaluation arises as a result of the factors that have given rise to gender undervaluation is a matter we explore later after considering recent federal authority.
The third, and most significant weakness of their reports, is that they did not address the Commission's decisions in 1988 and 1989 concerning the professionalisation of nursing in 1989, and the extent to which the resulting increase in wages had a remedial effect on the gendered history of the Public Health Award. We return to this limitation and its effect on our conclusions after considering recent federal authority, which has found the existence of unaddressed gender undervaluation within its jurisdiction as a result of a historical failure to recognise that registered nurse rates of pay ought to be set by reference to the professional C1 rate.

[283]

In the Stage 1 Decision, the FWC (a Full Bench comprising Ross J, President, Deputy President Asbury, and Deputy President O'Neill) decided that a 15% interim wage increase for, among other aged care sector workers, nurses (including Nurse Practitioners, registered nurses, enrolled nurses, and the equivalent of assistants in nursing in the federal classification system) working in aged care covered by the Nurses Award 2020 was "plainly justified by work value reasons".[156]
In doing so, the FWC made various legal and factual findings. Much of the decision resolved disputes concerning the legislative framework, and set out the factual basis for 16 uncontentious work value changes effecting the covered employees which were agreed by the parties (e.g., increased workload, increased acuity, increased administration of medications). These uncontentious work value changes fed into the 15% interim increase because "in respect of direct care workers (including RNs, ENs, [and assistants in nursing]) the evidence establishes that the existing minimum rates do not properly compensate employees for the value of the work performed by these classifications of employees".[157]
The question of whether the award history revealed ongoing gender undervaluation was considered in the Stage 1 Decision.
The FWC accepted the expert evidence "that as a general proposition work in feminised industries, including care work, has been historically undervalued and that the reason for that undervaluation is likely to be gender based", and used the evidence pertaining to gender undervaluation as a useful context for the assessment of the work value and skills utilised in a feminised industry.[158]
On this method, the FWC could use, for example, the Spotlight analysis of Associate Professor Anne Junor to identify skills not valued by the existing rates, without specifically finding that such undervaluation was gender-based.
Based on the expert evidence, the FWC accepted the following six propositions concerning gender undervaluation:

[298]

In the Stage 3 Decision, the FWC (a Full Bench comprising Hatcher J, President, Vice President Asbury, and Deputy President O'Neill) held - contrary to the Stage 2 Reasons - that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act does require the FWC to make an express finding concerning gender undervaluation, and in any case that such a finding was appropriate to make.[179]
The Full Bench in the Stage 3 Decision found that "the work of aged care sector employees has historically been undervalued because of assumptions based on gender".[180]
We set out in some detail the reasoning of the Full Bench in the Stage 3 Decision because we consider it apposite to our consideration of gender undervaluation for nurses and midwives under the Existing Awards. The Full Bench identifies how gender undervaluation arose and failed to be addressed at a federal level in respect of female-dominated industries generally, and nursing in particular, in a manner that we consider to a large extent parallels wage setting for nurses and midwives by this Commission. It is, however, also important to identify a key difference at a federal level, namely the failure to afford professional recognition, before we consider how professional recognition for nurses and midwives by this Commission ought to be considered.
The reasoning of the Full Bench in the Stage 3 Decision began with an analysis of each of the two elements of historical wage fixation in the federal system, being: the basic wage (the needs-based component of the wage, payable to even the humblest class of work); and the "margin" or "secondary wage" (the component of the wage which compensated a worker's skill and necessary qualifications).[181]
The Full Bench in the Stage 3 Decision set out how both of these components were affected by gendered assumptions reflective of the social and economic norms of the time.[182]
In the case of the basic wage component, gendered discrimination was explicit.[183] At the federal level, the initial conceptualisation of the basic wage by Higgins J in Ex parte H. V. McKay ("Harvester Decision")[184] proceeded on the assumption that the typical worker was a male married with three children, and on that basis, Higgins J assessed a basic wage to cover the "normal needs of the average employee, regarded as a human being living in a civilized community".[185] In two later decisions of Higgins J, the implications of this assumption for female workers were set out.
In Rural Workers' Union and South Australian United Labourers' Union v Mildura Branch of the Australian Dried Fruits Association ("Fruit Pickers and Fruit Packers Decision"),[186] Higgins J made an award for fruit pickers (who were predominately male) and another for fruit packers (who were predominately female). Each group of workers were unskilled, so the primary consideration was the basic wage. The fruit pickers' wage was set in accordance with the Harvester Decision, such that the "average employee" could discharge his obligation to "maintain" a "wife and children". The fruit packers' wage was set at 75% of the rate awarded to the predominately male fruit pickers because it was "a fair minimum wage for these women, assuming that they have to find their own food, shelter, and clothing".[187]
The Full Bench in the Stage 3 Decision extracted the following four assumptions concerning the federal basic wage from the Fruit Pickers and Fruit Packers Decision:

[308]

"There is no dispute between the parties that persons performing the same work should be paid the same margins for skill irrespective of sex. We endorse this agreement as to principle. It seems to us to be industrially unjust that women performing the same work as men should be paid a lower margin. This principle can be stated simply but its application presents at least two difficulties in any industry which has an existing involved wage structure and a long history of different margins for men and women for what appears to be the same work.

The first difficulty is to be sure that the work done is the same. If it is not, then the general principle stated above does not apply because the value of the work done by the woman may be different from the value of the work done by the man. If the job title found in the award is the same for both sexes then prima facie the margin may be the same. But this can be no more than a prima facie position, as our examination of this industry and this award has disclosed. For instance, both men and women are described as machinists in a number of different sections of the industry. In fact there are very few men employed as machinists, the great bulk of whom are women. The work done by most of the few men we saw working as machinists comprised many more different operations than the work done by most of the women whom we saw working as machinists. The work done by women as machinists also varied in different sections of the industry. It does not follow, therefore, that the mere similarity of description is sufficient to require the automatic application of the principle of equal margins.

As to the second difficulty, where in the past higher margins have been awarded to men than to women for work which may appear similar there is the problem whether the margin for them should be automatically preferred to the margin for women as a proper assessment of the value of the work being done. If both the male margin and the female margin have as in this case been the subject both of agreement and of arbitration over many years there can be in our view no presumption that the male margin is any better assessment of the work value than is the female margin. If in fact the work is the same but the female margin is less, then it must be a matter of judgment to decide whether or not to apply the existing female margin, the existing male margin, or some other margin."[202]

[330]

The Full Bench in the Stage 3 Decision explains that the masculine bias inherent in the C10 Metals Framework Alignment Approach operated to inhibit the proper valuation of women's work.[224] The Full Bench in the Stage 3 Decision also noted that to the extent that gender biases had historically been embedded in federal awards due to the history set out above, these biases were generally migrated into the modern award system.[225]
The Full Bench in the Stage 3 Decision then applied the general award making history set out above to the specifics of the Nurses Award 2010.
The first federal award that applied specifically to nurses was made in 1946 and contained rates that were, by agreement, aligned with Victorian nurses.[226]
The rates in this award were reconsidered in 1958, and significantly increased to align the marginal rate to tradespersons. In reconsidering the rate, Commissioner Findlay "concluded, therefore, that the trained nurse - an employee of standing and exceptional talent in this industry - is equal in specialised status to the painter, the carpenter, and/or the mechanical fitter".[227]
The award rates were further reconsidered in 1966, and further increased to award entry level nurses a higher margin than tradespersons because of their additional educational requirements.[228]
Following the adoption of the total wage structure in 1967, the award set separate rates for male and female employees (albeit still under the same classifications of "Sister", "Tutor Sister", and "Matron").
In 1970, the Full Bench of the Australian Conciliation and Arbitration Commission rejected a claim to remove separate male and female rates, by raising rates for females to the higher level.[229] This was because only a small minority of nurses were covered by the award.[230] Instead, the Full Bench implemented an interim agreement that made a single non-gendered rate by reducing the male rate and partly increasing the female rate.
In fixing the rate for a "Grade 1 'Sister'" (now a RN1), the Full Bench noted that although the margin component had, prior to the total wage, previously been set above the margin for a tradesman, the total wage of a "Sister" was less than a tradesman due to the lower basic wage for females. The Full Bench concluded that "Sister" exercised "a skill and responsibility no less than that of the average 'tradeswoman' particularly having regard to the nature of her responsibilities towards the patients".[231] The "tradeswomen" to whom the Full Bench referred received the lower basic wage for females: "we have been more greatly influenced by the rates payable to other classifications of females than those payable to males".[232] Accordingly, the "Sister" was paid less than a male tradesmen, despite having a higher work value.[233]
The rates of pay in this award were amended in 1983, to introduce a contemporary classification structure and to take into account rates fixed for nurses by State tribunals.[234]
In 1986, a claim was advanced under the "Anomalies and Inequities" principle seeking "professional rates" equivalent to professionals in the health sector, on the basis that the existing rates of pay were set by reference to an uncorrected gender bias.[235] The Full Bench accepted that basic contention that the rates for Commonwealth nurses were "set on the basis that nursing is a predominantly female occupation; that this assessment has caused the rates to be depressed, and that there has been no subsequent adjustment to fully redress the situation".[236] However, the Full Bench rejected the claim that rates should be increased to align with university degree-qualified health professionals or that the rectification of the failure to apply the equal pay principle should involve a comparison with such professionals.[237]
In 1989, the Full Bench, again, rejected a claim for professional rates for nurses on the same basis as its previous 1987 decision, notwithstanding such rates being granted by multiple state industrial tribunals.[238] However, the Full Bench did agree in principle with the concept of a national career and pay structure, and, as a first step towards that objective, determined to grant an entry-level rate for registered nurses in the ACT, NT and South Australia which was equal to that determined for NSW and Victorian Nurses, with the percentage increase at this level being applied to the rates of pay at all other levels.[239]
In 1990, given public sector nurses in Tasmania, South Australia and Western Australia had entered the federal system, nationally consistent rates for registered nurses were made, with a higher rate of pay to apply to a nurse with an undergraduate degree qualification rather than a diploma.[240]
In 1992, a Full Bench set nationally uniform rates for enrolled nurses. The rates set, applicable to each of years one-to-five of service, had a relativity range of 91%-99% of the entry rate for a diploma-qualified registered nurses.[241]
By 1994, given the restructuring of the tertiary education sector, the entry-level qualification for a registered nurse had become a three-year bachelor's degree from a university or a post-graduate nursing qualification. Accordingly, the C10 Metals Framework Alignment Approach, if applied to federal nursing awards, should have resulted in an alignment with the C1 rates in the Metal Industry Award. However, this was never considered. At that time the rates of pay for enrolled nurses and registered nurses "as a percentage of the fitter's rate, had a range of 117.3% to 148.6%", which the FWC considered "plainly did not accord with the C10 Metals Framework Alignment Approach in respect of degree-qualified RNs".[242]
When modernising and making the first version of the current Nurses Award, the then Full Bench essentially replicated an existing federal award applying to South Australia, except that the assistant in nursing classification structure was derived from awards in the ACT and Queensland. That Full Bench made the entry-level rate for a three-year degree-qualified nurse less than the existing rate in federal nurses' awards (at Level 1 Year 2) and less than the C7 rate in the Manufacturing Award applicable to a Certificate IV qualified engineering tradesperson. The rate for a Certificate III qualified assistant in nursing was set at the C10 rate without examination of work value. The method by which the Full Bench determined the other rates of pay in the Nurses Award, including for enrolled nurses, was not disclosed in the decision, but it appears that existing relativities were simply maintained.[243]
The ultimate conclusion by the Full Bench in the Stage 3 Decision, on the basis of the entire history set out above was as follows:

[356]

Nursing and midwifery is, and has always been a feminised industry, and one where caring skills are a very significant aspect of the role. It follows from the foregoing that it is likely that the work of nurses and midwives was historically undervalued, and if flaws in the setting of the rates have not been addressed, likely that they remain so. At no point in the history of the awards has there been express consideration of gender undervaluation. It is in that context that the evidence of Professor Smith that it is "possible" that the Existing Awards contain gender undervaluation is to be understood.
In the FWC proceedings evidence demonstrating gender undervaluation was obtained by considering whether the work of nurses (registered nurses, enrolled nurses and the equivalent of assistants in nursing) utilised to a significant degree "invisible skills", being skills that were not captured by the award classification descriptions. As noted, the Commission relied on the evidence of Assoc Prof Junor who conducted a "spotlight analysis" to examine the extent to which the workers that Assoc Prof Junor had examined exercised skills that were not described in those award descriptions.
The Secretary criticised the Association's evidentiary case by comparison, pointing to the absence of evidence using the "spotlight" tool or similar. To address that criticism we need to identify the nature of the exercise undertaken by Assoc Prof Junor. The Professor started with the description of tasks undertaken by nurses found in the federal award, and then identified various further tasks or duties not recorded in those classification descriptors that are nevertheless a significant feature of the work of nurses which led the Professor to conclude that they had not been considered in setting the rate of pay. The Existing Awards do not contain classification descriptions that list duties or tasks undertaken by nurses and midwives in a manner that would allow a like comparative exercise to be undertaken. There is, accordingly, no capacity to undertake the task of identifying tasks that are not recorded in the Award.
While differently titled, the skills that Assoc Prof Junor identified as skills that the federal award appeared to closely align with the skills that the Association has also established as skills that make up a significant part of the work of nurses and midwives. We have observed above that the invisible skills identified by Professor Smith and Dr Lyons in the Association's evidence are consistent with the skills that Assoc Prof Junor found to be indicative of under-recognition. That nurses and midwives in the NSW public health system exercise very similar "invisible skills" is not surprising.
These are skills that are not merely ancillary or a minor aspect of the work of nurses and midwives, as we have set out in some detail above. At the risk of being repetitive, it is the capacity to communicate with patients in stressful situations in a caring and calming manner, while efficiently obtaining necessary clinical information in order to provide appropriate medical care that is the hallmark of a nurse or midwife. A nurse and midwife will apply professional expertise, and technical skills, such as the skill to cannulate, but in order to do that work effectively they have to be able to calmly and effectively communicate with the patient.
As can be seen from the foregoing, there are significant similarities in the way that rates of pay for nurses and midwives were set historically at a federal and NSW State level which assist to conclude that historically the rates were undervalued due to gendered assumptions.
Both were originally set on the basis that the work involved was done only by women. Thereafter, when it was recognised that men did the work as well, the male rate was set at a lower level than it would otherwise have been, due to the skill margin for the work being set at the lower female-based level. We accept that the mechanism by which the rates were set in the federal system differs to that in the State system (noting the application of the "C10 Metals Framework"). However, in both cases the rates were set by reference to the lower female-based level skill margins.
In both cases the rates were subsequently combined into a single rate for men and women that was intended to create equal pay, but without considering if the skill margin was appropriate.
Just as we received in this case, the FWC proceedings received expert evidence that the award history demonstrated gender undervaluation in respect of rates of pay for nurses and midwives.
While the conclusions of the Full Bench in the Stage 3 Decision were in respect of the aged care industry, we can see no reason why the undervaluation of nurses and midwives found by that bench would be restricted to nursing in that industry. It has certainly been the case in NSW that public hospital nurses have their rates set at the same level regardless of whether they are doing acute, aged care or other work. We can see no good reason to consider that gender undervaluation at a federal level is one that is likely to be limited to a particular form of nursing.
In light of those matters we are content to adopt the conclusions of the FWC in respect of enrolled nurses and assistants in nursing and return to them below.
The position in respect of registered nurses and midwives however is more complex. That is because of a key difference in the two histories: NSW public hospital nurses obtained professional rates in 1990 but at a federal level rates for registered nurses were never adjusted to ensure they were properly set as professional rates. It is that failure at the federal level that the Full Bench in the Stage 3 Decision identified as the basis for its conclusion that rates of pay for registered nurses in aged care contained gender undervaluation that needed to be addressed.
As the Association concedes, the lifting of rates to professional level for nurses and midwives under the existing awards addressed an aspect of gender-driven undervaluation of the work, namely (as the Full Bench in the Stage 3 Decision concluded) that the only apparent reason that professional nurses would not have been paid at professional levels is gender.
It does not follow, however, that we can be satisfied that the Professional Rates Case entirely addressed gender undervaluation for registered nurses and midwives in the current rates. That is so for four reasons:

[358]

Further, later in this decision where we consider the Association's work value case, we reach the conclusion that as a matter-of-fact nurses and midwives are currently undervalued.
We have a statutory duty under s 10 of the Act to make awards that contain rates of pay that are fair and reasonable.
A strict application of the work value principle requires examination of change since the datum point. This is the prism through which undervaluation is considered in the next section of this decision.
That exercise alone, however, would not allow us to be satisfied that the rate of pay we set has full regard to the "caring" skills that have not to date been expressly considered. If that is all we did, the real possibility of gender undervaluation that Professor Smith identified exists would remain and we could not be confident that the rates were appropriate. It would effectively leave to another case the question of the existence of gender undervaluation.
In circumstances where this Commission has never had express regard for those skills, we consider it not only important but necessary that the rates for nurses and midwives be set with full regard to those skills to address latent gender-undervaluation.
We consider that in the circumstances of this case the Association has made out a special case for a reassessment of the work value of nurses and midwives giving full regard to those skills.
That consideration is one that can, and in the circumstances of this case, ought be done at the same time as the assessment of work value change, in order to determine an increase that reflects the full value of the work of registered nurses and midwives today, including the exercise of those "caring" skills that are so integral to their work.
Returning to assistants in nursing and enrolled nurses, as set out above they also received a substantial increase in rates in 1989 at the time of the Professional Rates Case. Noting the increases were lower and noting the absence of any reasoning for the increases at the time, we cannot conclude those increases addressed properly previous gender undervaluation.
To date the Commission has not considered whether the rates for enrolled nurses and assistants in nursing are affected by gender undervaluation. While the Full Bench in the 2003 Nurses Work Value Case was presented with a case to rectify gender undervaluation for assistants in nursing, based on a male comparator, it made no findings beyond identifying the evidence was insufficient to allow the comparison, which it concluded ought to be done in a subsequent proceeding.
We are comfortably satisfied that we can reach the same conclusions regarding gender-undervaluation of assistants in nursing and enrolled nurses as we have made in respect of registered nurses and midwives, noting their work involves lower end technical skills combined with caring and communication skills.
We are comforted in coming to the conclusion that we need to address the likelihood of historic undervaluation of assistants in nursing and enrolled nurses by the detailed findings that the Full Bench in the Stage 3 Decision reached in respect of the same classifications in the aged care sector and the significant increases affected to their rates of pay which have resulted in those rates, which are set on the basis that they are minimum rates, being now higher (and in the case of assistants in nursing substantially higher) than the paid rates for assistants in nursing and enrolled nurses under the Existing Awards.
We take the view that the paid rate set by the Existing Awards for assistants in nursing and enrolled nurses ought to be no less than, and ordinarily will be greater than, the minimum rate set by the federal award.

[360]

As we set out above, we are satisfied that the Association has established that there are caring and other skills that have previously not been expressly considered in the exercise of wage fixing. These are skills that because they are gendered in nature and have not been formally recognised, nor necessarily recorded in lists of tasks are often referred to as "invisible skills".
We have determined that in order to ensure that rates of pay are fair and reasonable we should ourselves consider, assess, and value the invisible skills that form part of the work of nurses and midwives in the overall exercise of assessing the work value of nurses.
The Secretary submits that, unlike the federal aged care proceedings, there was no, or no adequate, expert evidence directed to identifying or analysing the invisible skills, and that the Association provided little assistance as to how such skills should be valued.
We are in a position to consider and assess the value of those skills without the necessity of any more expert evidence than we received. In the following section of the decision we consider the evidence and make findings as to the nature and value of those skills. We do so through the prism of the submissions of the Association, which we accept other than as identified below.
We take this approach in circumstances where the Secretary did not take issue with the existence of such skills, nor that they have real work value. The Secretary's position was that (contrary to our finding) it had not been established that their value had not been previously considered, which meant the only matter in issue in respect of such skills was whether they had changed within the datum period in a manner that is sufficiently significant as to justify an increase in remuneration on work value grounds.
Before examining the skills in question we pause to deal with the contention by the Secretary that to the extent that nurses and midwives need to exercise such skills, their value has decreased as a result of the increasing amount of time spent on documentation and meetings along with changes in demand and technology that reduce the amount of time they can provide patient-centred care. As to that, we do not consider the extent of the changes identified have been significant. To the extent that nurses have been required to meet a greater array of demands, we do not consider that lowers the value of their caring skills. Their continued capacity to effectively care and communicate notwithstanding juggling multiple demands and new technology if anything means those skills are of higher value.

[362]

Nursing requires the capacity to communicate with patients effectively in situations where there is limited time, there are multiple demands on the nurse and the patient can be stressed or due to their illness or injury otherwise have difficulty communicating. Communicating effectively is a skill that is taught and improves with experience.
Peter Leach, District Director of Nursing Midwifery and Clinical Governance for Southern NSW LHD, gave evidence that nursing has always required a high level of verbal and non-verbal communication skills. He explained that it is critical for a nurse to be able to watch what the patient is communicating other than with words. He said that complex communication is an aspect of a nurse's professional skill which can be, and is, trained by LHDs.
In the mental health context, Sarah Ellyard, a Registered Nurse in the Parkview Unit, an acute adult inpatient mental health unit, of Macquarie Hospital, gave evidence of the complex communication skills that she uses by modifying tone of voice, facial expressions and body language to manage patient aggression, de-escalate situations and communicate with multicultural patients.
Similarly, Marc Lamond, a Clinical Nurse Consultant (CNC) at Justice Health, gave evidence of his use of delicate communication and negotiation skills to educate, reassure, and convince mentally unwell patients to take their medication in the community or to receive required injections.
Sima Sapkota, a registered nurse at the Concord Centre for Mental Health, gave evidence that she uses communication techniques, for example, changing her body language, tone, constant reminders and reassurance, make eye contact, ask how they are and accompanying them on trials outside of the ward, to build trust, provide care and support, and reassure a patient's family.
Thomas Hoffman, a CNC - Child and Adolescent Mental Health at Sydney Children's Hospital, gave evidence of using negotiating skills to be able to explore issues with young patients, build trust with them and their families, and as part of his assessments and finding different ways to engage with vulnerable young patients. He describes de-escalating situations with children and their families in the adolescent mental health unit, and using the skills he has developed to filter out information he is given, to validate experiences, and to listen.
In the midwifery context, Erin Bonnet, registered midwife at RPA, described her use of these skills:

[368]

In the palliative care context, Jennifer McKenzie, a palliative care Nurse Practitioner at Murrumbidgee LHD, gave evidence that she has developed complex communication skills which allows her to move onto a more difficult line of questioning and ascertain the sensitive information she needs to provide clinical care. She described this connection is a "superpower", which can be deployed in multiple situations, for example, to finds out if patients are using drugs other than what she is prescribing. Her evidence was that the effective use of communication skills is required in navigating difficult conversations, including, delivering news of how long a person may have left to live. She says that clear and effective communication increases a person's education of their treatment and increases compliance with treatment, and that such communication can bring humanity to a situation where a person is palliating, with patients feeling that they are treated as a person not a number.
In the rural context, Kathryn Fifield, a registered nurse and registered midwife, Facility Manager at Henty Multipurpose Service, gave evidence that she has developed high level emotional and communication skills which allow her to provide the different support and care that each patient requires in the small regional facility.
In the hospital in the home context, Lynnette Hopper, a Registered Nurse for the North Sydney Local Health District within the hospital in the home service, gave evidence that working in homes requires strong interpersonal and communication skills, which is especially important if other family members are present in the home.
In the acute pain context, Majella Parr, a Transitional Nurse Practitioner at Murrumbidgee Local Health District, gave evidence that nurses working in acute pain services require the skill to exercise high level communication skills in stressful situations to try and gauge a person's language and health literacy skills when they are in pain. Her evidence was that she relies more on her interpersonal skills when managing patients with societal complexities and has evolved these skills over her career to make her patients feel safe and to build trust so that they share their experiences and she can guide their care appropriately.
In the surgical context, Shamus Larsen, a registered nurse at John Hunter Hospital, gave evidence of the need to communicate effectively and sensitively with patients as they emerge from surgery, and of the need to employ different types of communication when counselling family members when a patient deteriorates.
In the child and family health context, Sharon Walbran, a Child and Family Health Nurse within the Northern Sydney LHD, gave evidence that nurses require communication to ask screening questions about childhood trauma, relationship concerns, mental health concerns and domestic violence in a non-threatening way. Her evidence was that she adapts her approach to engagement and utilises a range of communication skills when working with clients experiencing family domestic violence so that she can properly support these clients.
In the ICU context, Paul Stanton, a Nurse Practitioner in the neonatal ICU at Royal Prince Alfred Hospital, gave evidence that he uses communication skills while caring babies in the neonatal ICU, by validating the concerns and worries of parents and families. His evidence was that he uses these skills to manage parents of these babies who are witnessing, with distress, the birth of their pre-term baby.
Rand Butcher, registered nurse, currently the Chief Executive of the Australian College of Critical Care Nurses, gave oral evidence of the need for ICU nurses to deploy high level interpersonal skills, and communication and negotiation skills which facilitates interdisciplinary rounds and bridges communication between intensivists and other staff.
In the emergency context, Colette Duff, a registered nurse in the emergency department of Sutherland Hospital, gave evidence that she is required to adapt her communication style depending on the patients presenting, for example, deploying closed loop communication when a child presents to emergency.

[394]

The NSW Health's 2019 Code of Conduct introduced concepts of person centred care and culturally safe care. Ms Cross explained that a patient who feels seen as a person and cared for as such will have a better hospital experience and will be more likely to have better clinical outcomes. It was her evidence that nurses were previously performing person centred care, but now more nurses are developing these skills.
Mr Leach gave evidence that the point of person centred care is that the caring side of nursing is just as important as the technical skills and that it is impossible to separate a nurses' interpersonal skills and human demands of the job from the technical work that they do.
Brendan McCormack, Professor of Nursing and Head of School and Dean of the Susan Wakil School of Nursing and Midwifery at the University of Sydney gave evidence that patient centred care is now a standard requirement of the nurses' role and registration. His evidence was that it requires a nurse to know the patient through holistic assessment, shared decision-making, and the generation of individualised care plans and is translated through relationships and effective interpersonal processes including building trust in the therapeutic relationship, working with the person's belief and values, shared decision-making, engaging authentically, being sympathetically present and working holistically. He explained that to do so requires the development of knowledge, skills and attitudes to negotiate care, interpersonal skills, self-awareness and reflection of practice, awareness of the impact of beliefs and values and skills to engage and connect with patients and family. Mr McCormack gave oral evidence that the skills involved in patient centred care are not innate, but rather, need to be learned.
In the context of management nursing, Kate Hackett, District Director of Nursing and Midwifery of the South Eastern Sydney LHD, gave oral evidence of working to embed person centred care into her nursing and midwifery teams. She gave evidence regarding the rural health plan, which aims to promote patient centred, respectful and compassionate care which requires nursing and midwifery staff to engage in active listening, so a patient feels heard which often requires the nurse or midwife to develop an interpersonal relationship with the patient to build rapport, often with someone who is at the most vulnerable point of their life. It also requires the development of skills that allow them to remain when a patient is upset or aggressive and to deescalate these patients. She said that, while nurses have always had to develop relationships with patients, there has been a growing emphasis over the last 10-15 years on the importance of patient centred care and trauma informed care, and it is now embedded in strategy. She said that to deliver nurses and midwives need to develop skills through practice of person centred care and training.
Similarly, Ms Campbell, the Director of Nursing and Midwifery at Bankstown-Lidcombe Hospital, gave evidence that nursing staff used to just manage the patients but today they need to engage more with the family. This extends to educating families on, for example, nutrition, wound management, pressure care.
Ms Fifield gave evidence that patient centred care recognises that different patients need different kinds of support, for example, washing aged care patients' hair or putting on lipstick for them helps make them feel human.
In the context of midwifery, Ms Bonett gave evidence that she has developed high level knowledge and clinical skills as well as communication and interpersonal skills to provide patient and family centred care during birth to mothers, partners and babies, including conversations and reassurance provided to families during the birthing process and supporting and teaching the woman's partner, facilitating skin to skin and breastfeeding by repositioning, education, and observation and assessment of a baby's feeding post birth following a high risk pregnancy.
Professor Caroline Homer AO, a Registered Midwife and Honorary Emeritus Professor of Midwifery at the University of Technology Sydney, gave evidence that the guidelines published by the Australian College of Midwives now have woman-centred care as a key component which encourages midwives to involve women in decision-making and respect their choices. We infer from this evidence that there is now a stronger focus on midwives developing the communication, interpersonal and emotional intelligence skills required to provide this care.
In the context of paediatric nursing, Ms Usherwood gave evidence that patient centred care requires the provision of care for the whole child, not just their clinical presentation. By way of example, when a baby was awaiting a bed in the RPA emergency department, Ms Usherwood gave the baby a bottle, made them comfortable and put them to sleep.
Mr Stanton gave evidence that the neonatal ICU is now more family-centred, and families are now more involved in decision-making. His evidence was that this requires nurses to educate, support and build rapport with these family members who are often in distress.

[405]

The Nursing and Midwifery Board Standard National Competency Standards, which sets the expectations of a registered nurse's practice provides that nurses conduct assessments in a manner that is "culturally appropriate".
In the mental health context, Ms Ellyard gave evidence of multilingual nurses taking on the role of an interpreter for patients for whom English is a second language to make those patients feel more comfortable.
In the transplant context, Ms Mansell gave evidence of having developed an awareness of cultural sensitivities relevant to Aboriginal patients, who may, for example, have a distrust of the health system. Her evidence was that she addresses these issues by working harder to build a rapport and using active listening to demonstrate care. Ms Mansell also gave evidence of deploying her knowledge to empower Aboriginal patients to be able to fill medication scripts without cost at participating pharmacy through the Close the Gap program, and providing advice as to which local pharmacies participate that program.
In the rural context, Ms Fifield gave evidence that nurses must have the cultural knowledge to be able to identify what information and resources might be relevant to a patient from a particular culture or language group.
In the community women's health context, Ms Scott gave evidence that treating patients for whom English is a second language can require time consuming multi-tasking skills. By way of example, Ms Scott said that when performing a physical exam and using an interpreter service simultaneously, she is required to ask the interpreter a question by phone, then hand the phone to the patient to communicate with the interpreter, then wash her hands and put on a new pair of gloves.
In the neonatal ICU context, Mr Stanton gave evidence of providing end-of-life care to a baby following a pregnancy or birth complication. He gave evidence of providing support by facilitating traditions and religious requirements, in addition to psychological and emotional support.
In the child and family health nursing context, Ms Walbran gave evidence that her service aims to provide for culturally and linguistically diverse patients in a way that is relevant to them, including by "providing information in their language, being aware of play groups and services that are available to them and that are relevant to their community" Ms Walbran gave evidence that:

[431]

"Work value principle

[16] The work value principle allows for award wages to be increased if it can be demonstrated that there have been changes in the nature of the work, skill and responsibility required or the conditions under which work is performed to such an extent that the changes constitute a significant net addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification. The principle refers to this test as a "strict test". There must be no likelihood of wage leap frogging either within the internal award structure or against external classifications to which that structure is related.

[17] Further, there should be no double counting. That is, changes that were, or should have been, taken into account in any previous work value adjustments are not to be included in any work evaluation under this principle.

[18] These requirements under the work value principle impose a significant burden on an applicant, particularly because of the strict test requiring the applicant to demonstrate a "significant net addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification". It might be asked how such a burden exists in a decade or more of rapid and continuing workplace change and the almost universal impact that phenomenon has had on employees. But as the principle makes clear, changes in work by themselves may not justify an increase in wages. Some changes bring about a net reduction in work requirements. Others merely reflect the evolving nature of the particular occupation where skills or responsibilities are lost and new ones gained without producing a net addition to work requirements. In many occupations, particularly professional occupations, change, and the requirement to cope with it by coming to terms with new methods and new technology, is an inherent and accepted characteristic of the employment and rarely will this evolutionary process attract extraordinary wage increases under the work value principle. In this respect, we note the observations of Fisher P in Re Medical Officers Hospital Specialists (State) Award (1990) 33 IR 79 at 84 where, after referring to the work value principle, his Honour said:

[436]

As the quote identifies, in the 2003 Nurses Work Value Case work changes were considered over a period of 7 years, from 1 July 1996 to June 2003, other than for enrolled nurses in respect of whom the period was 10 years, from 1 July 1993.
In this case the datum period is more than twice as long. The commencement date is 1 July 2009 and we consider the evidence allows us to understand change up to June 2025, a period of 16 years.
Just as the Full Bench in the 2003 Nurses Work Value Case said in respect of a much shorter period, the Association bears a significant burden to establish a case despite more than 15 years of rapid and continuing workplace change and the almost universal impact that phenomenon has had on employees.
As the Work Value Changes Principle makes clear, changes in work by themselves may not justify an increase in wages. Some changes bring about a net reduction in work requirements. Others merely reflect the evolving nature of the particular occupation where skills or responsibilities are lost and new ones gained without producing a net addition to work requirements. In many occupations, particularly professional occupations, change, and the requirement to cope with it by coming to terms with new methods and new technology, is an inherent and accepted characteristic of the employment and rarely will this evolutionary process attract extraordinary wage increases under the work value principle.
The primary change identified in the 2003 Nurses Work Value Case was higher levels of acuity and dependency of patients, which meant that hospital patients were, on average, sicker than they were previously, which had a significant effect on the intensity and complexity of the work performed by nurses and midwives. This change was said to constitute a significant net addition to work requirements.[274]
The Association also demonstrated a range of further changes, but the Full Bench found that none individually met the test under the work value principle. In summary, those changes were:

[441]

(1) The starting point is to recognise that part and parcel of the work of nurses and midwives, as professionals and managers, is the capacity to accommodate change; accordingly, changes, even significant changes, to such things as medical procedures and technology will not of themselves meet the strict test.

(2) Consistent with that starting point, nurses and midwives have the skills and training to deal with increasing levels of acuity and dependency of patients; however the accumulation of such changes over a period of time can result in increases in the intensity and complexity of the work performed by nurses and midwives and the skills required sufficient to meet the strict test.

(3) In order to address increased demands on public hospitals arising from increasing acuity and to improve medical outcomes, there may be changes, including enhanced training, that change the way that nurses and midwives work. They may be changes to skills that have not been previously the subject of work value assessment, namely the "invisible skills" previously identified. Such changes, taken individually, will ordinarily be considered an accepted part of the role of professionals and managers such that they will not, of themselves, meet the strict test.

(4) However, when such changes are considered in combination over the course of the relevant datum period, and when considered together with changes in acuity and dependency, this may result in such a significant change to the way that nurses and midwives work as to meet the strict test.

(5) In assessing the quantum of the increase, we should take into account:

(a) the extent to which changes identified are not new and had been relied on in previous proceedings, to avoid double counting;

(b) that as professionals, nurses and midwives are required to come to terms with new methods and new technology;

(c) the extent to which increases in work value across the nursing workforce in the public hospital system have been uniform.

(d) the extent to which other grounds relied upon in these proceedings overlap with work value;

(e) the history of recent increases;

(f) the flow on implications of granting substantial wage increases; and

(g) a comparison of wages with counterparts in other States and federally.

[444]

The Association contends that public health in NSW has undergone "revolutionary change over the last fifteen years". Such change, it contends, has been achieved over time as "an evolutionary process", albeit with an identifiable spike during COVID-19.
It is the Association's case that while the nature of evolutionary change is that it happens slowly, the end result is that, in 2025,nurses' and midwives' work is substantially different to what it was in 2010. In particular, this work requires consistently higher levels of skill and responsibility being exercised in a much more challenging environment.
The Association's central contention is that this evolution over 15 years has resulted in a significant expansion to the scope of practice of nurses and midwives. The Association submits that this scope of practice has grown by reference to changes in patient needs, advances in technology, new clinical responsibilities, and changes to the education, policy and regulatory landscapes. This growth is also at the micro level, whereby, individual nurses are commonly performing more complex clinical tasks, and so are more commonly working at the higher end of their scope of practice.
The scope of practice of an individual nurse or midwife is constituted by what they are educated, competent and permitted to perform. An individual's scope of practice will grow over time by way of additional training, adding to their skills and practical experience, and adding to their competence. It is the Association's case that over the 15 years, the NSW public health system has come to expect and rely on nurses working to a higher scope of practice, obtained by a mix of higher starting training, greater on-the-job training and experience, and an expansion of the duties they are permitted to perform. An aspect of this growth has been a change that has seen certain skills, such as cannulation or suturing, that were once specialised tasks performed infrequently by a limited number of nurses, becoming skills that are now more commonly performed.
A further aspect of this growth, the Association contends, is that nurses and midwives are increasingly working to "their full scope of practice". This increase means that higher level skills that made up part of the work of registered nurses and midwives prior to 2010 now make up a much larger proportion of their work. That is due to a combination of: (1) the expanded role of enrolled nurses and assistants in nursing who relieve registered nurses and midwives of lower level work such as taking observations, and (2) a shift towards nurses and midwives performing more of the work that was ordinarily performed by doctors, such as making initial observations and ordering tests such as x-rays.
The majority of the Association's substantial evidentiary case went to establishing the evolutionary change to the work of nurses across the public health system. The evidence went to establishing the following propositions for which it contends:

[456]

The Association contends that patient complexity over the datum period has substantially changed because of an increase in acuity and complexity.
It was not in issue that patients are on average older than they were at the start of the datum period. As the Secretary submits: "older patients present with more co-morbidities that can require more complex assessment and treatment". The Secretary submits that we should find only a small change in the average all-patient age for the Sydney LHD. However, focussing on the 80-89 age bracket reveals an increase in admissions between 2009 and 2024 of 31.4%.
It was also not in issue that as a result of improving medical treatments and technology, people are living longer with more complex problems.
Further, the evidence demonstrated that patients are discharged more quickly, such that their time in hospital covers their most acutely sick period - the average length of stay for acute patients was 3.5 days in 2011, and 2.9 days in 2024, a reduction of 17%.
The combined upshot is that over the datum period patients on average are more complex to treat and have higher acuity while their care is completed in a shorter time.
The Association provided extensive evidence from a large number of senior nurses as to how this change has impacted on their work, requiring them to work in different ways. This was said to be the main reason why nurses and midwives are increasingly working to the full scope of their practice, and why the scope of their practice has been enhanced by additional training. The Secretary called this evidence "impressionistic". Care needs to be taken in assessing the weight to be given to evidence given by an individual as to how change has affected them. In a system as large as the NSW public health system one cannot necessarily extrapolate from individual cases. However based on the extensive evidence we received from a wide range and large number of senior and experienced nurses, who gave the evidence in clear and unambiguous terms and which was rarely put in issue, we are satisfied that we can draw useful conclusions from it. The following provides a high-level summary of the evidence in question.

[474]

(1) Pamella Barrett. Ms Barrett began working as an enrolled nurse in 1978, then as a registered nurse from 1988. She has worked in the public health system since 1990, principally at the Tweed Valley Hospital. She has worked as a Nurse Unit Manager since 1998.

(2) Linda Campbell, the Director of Nursing and Midwifery at Bankstown-Lidcombe Hospital. Ms Campbell has worked in the public health system since 1972 as a registered nurse, CNE, Nurse Unit Manager, and Director of Nursing and Midwifery in 2015.

(3) Majella Parr, a Transitional Nurse Practitioner at Murrumbidgee LHD. Ms Parr has worked in the public health system since 1999.

(4) Lisa Singleton, a CNS at St Vincent's Hospital Sydney. Ms Singleton has worked in the public health system at St Vincent's Hospital since 1996, initially as an registered nurse.

(5) Kristy Wilson a Perioperative Nurse Unit Manager at Griffith Base Hospital. Ms Wilson commenced working at Griffith Base Hospital in 1994, and worked in regional NSW for her entire working career.

(6) Bianca Vergouw, a Registered Nurse at Wollongong Hospital. Ms Vergouw worked as a nurse since 1994, and in the public health system since 2000. Ms Vergouw worked as a ward nurse from 2002 to 2009. She then worked in the ICU from 2009 to 2024, before returning to ward nursing. Her evidence concerning ward nursing addressed the changes between 2009 (when she left ward nursing) and 2024 (when she returned to ward nursing).

(7) Shamus Larsen, a Registered Nurse at John Hunter Hospital. Mr Larsen has worked as an registered nurse since 2021.

(8) Kathryn Fifield, the Facility Manager of the Henty Multipurpose Service. Ms Fifield has worked as a nurse in the public health system since 1999.

(9) Susanne Field, formerly Clinical Nurse Educator at Royal Prince Alfred Hospital. Ms Field is currently the Diploma of Nursing Course Coordinator for NSW Health. Prior to that, she worked as a nurse in the public health system since 1990 until 2022.

(10) Professor Picone.

[485]

Consistent with the evidence of Ms Campbell, Ms Field gave evidence that the effect of the increased complexity and acuity of patients is that patients who used to be cared for in the ICU are now cared for in the wards. Specifically, Ms Field's evidence was that previously post-operative patients spent four or five days in ICU before coming to the ward. She said that there was rarely a patient on the cardiovascular ward who was one-day post open-heart surgery; such patients would have been in ICU. Her evidence was that by 2015, she observed three or four such patients on the ward. Now, Ms Field observed that the majority of the 24 to 30 beds on the cardiovascular ward have patients who are post operation, creating more time-consuming work because such patients have had anaesthetic and are confused, may try to climb out of bed with drips attached, may have been fasting, and may be dehydrated due to theatre medications. Ms Field observed "[w]hen I go to [the cardiovascular ward] and the respiratory wards as part of my current role, I see high flow oxygen patients on the ward that were previously only looked after in ICU".
In respect of this issue, the Secretary submits that the Commission should disregard such evidence because ICU nurses were previously doing the same work, and ICU nurses and ward nurses are valued the same. Further, depending on the patient's condition upon being moved to a ward, such a patient may still receive one-to-one nursing care as they would have in the ICU.
We do not accept that submission. Nursing in an ICU ward occurs against the background of the substantially increased resourcing of an ICU ward, including as to the number of nurses and their skill mix (including in particular their training in dealing with highly acute patients) along with the medical staff available, to be contrasted to a step down ward or general ward, where such critically ill patients will necessarily increase the average acuity of the patients on that ward, and require the nurses there to work at a higher level against a background of lower staffing and lower skill mix . Inevitably that places higher pressure on those nurses and requires them to work at a higher level.

[488]

Professor Homer gave evidence that the population of childbearing women has become more complex over the last 20 years. By using a time period that was longer than the datum period we need to treat Professor Homer's evidence with some care. Nevertheless, we are satisfied that she was describing a continuum of change of some significance, most of which has occurred since 2009.
The increased complexity arises from changes, including, women having babies later in life, more women giving birth classified as obese, medical conditions - for example, gestational diabetes - becoming more common, an increased rate of intervention during childbirth and an increased caesarean rate. Professor Homer's evidence was that the increase in inductions and caesarean sections has increased the workload of midwives because these procedures require more care and more complex care.
Professor Homer also gave evidence of an increase in perinatal mental health issues, domestic violence incidents, and pre-existing medical conditions. Her evidence was that these changes have increased the work of midwives because they "do the vast majority of screening, referral and ongoing support".
Professor Homer's evidence was that the increase in pre-existing health conditions - whereby now many women have more than one pre-existing health condition - results in women requiring more care from midwives, more monitoring, longer visits more consultation referral and collaboration with medical and other specialists. The Professor gave evidence of an increase in gestational diabetes from 7.5% in 2014 to 16.5% in 2022, which she described as one of the greater jumps in complexity.
Professor Homer also explained that there is an increased "medicalisation of birth". She referred to the process by which pregnancy, birth and the postnatal period has increasingly "been treated as a medical event, often involving medical interventions, rather than a natural process". Her evidence, by refence to contemporary data, was that the medicalisation of birth is increasing, resulting in an increased workload for midwives.
Dr Phipps gave similar evidence of an increased complexity of care, caused by patients today have more "complex medical needs due to an aging population and chronic disease prevalence". By way of example, Dr Phipps explained that when she commenced work as a midwife she looked after "normal" women, whereas now patients are "fairly complex and a lot are high risk (for instance diabetic, giving birth at an older age, have high blood pressure or need a caesarean birth for example)". In her oral evidence, Dr Phipps said that "[n]ow ... over 27% of our women are over the age of 35 having babies", with a number of those also requiring assistance with IVF. Her evidence was that such patients require increased monitoring by midwives.
Michelle Foster, the Women's Health and Maternity Network Manager & Midwifery Advisor of the Hunter New England LHD, who was called to give evidence by the Secretary, agreed in cross-examination that there was a steady increase in caesarean rate, which is an example of the medicalisation of birth which can lead to midwives doing more work and at the higher end of their scope of practice.
Likewise, Ms Bonett gave evidence of her observation that the main change between 2018 to 2025 was the increased complexity of women giving birth, including higher numbers of gestational diabetes, pre-eclampsia, women with low platelets, women with kidney problems. Her evidence was that high risk pregnancies rose from 60% to 80% of workload during that period.
Ms Wannell gave evidence of the increased acuity of women using the Aboriginal Maternal Infant Health Service. Her evidence was that this service is meant to only look after low acuity women, but her actual experience is that many women presenting at the service require additional care and referrals including blood tests, ultrasounds, and additional mental health or domestic violence services.
Ms Wannell also gave evidence, by way of example that, although the Australian Collage of Midwives guidelines require women with especially complex pregnancies to receive care from an obstetrician, some Indigenous women refuse such care because hospitals are not culturally safe. Such cases require more work from the midwives. Ms Wannell said that she is required to do "the work" of the obstetrician.
We also received evidence of the expansion of the Midwifery Group Practice since the datum point, and its impact on the work of midwives. Ms Plater explained that the Midwifery Group Practice is a continuity of care model where midwives work in small teams with the same group of expectant mothers throughout their pregnancies. She described it as the gold standard for midwifery care. Professor Homer explained that, in 2005, there were very few models of care that provided continuity, which were only available at a few hospitals. Now, as Ms Foster explained, there are 40 services in NSW using the Midwifery Group Practice model. Professor Homer's evidence was that, under this model, midwives have a high level of responsibility for detecting and managing risk and consulting and referring to other specialists, because they are much more connected and responsible for women across the whole childbearing continuum and work in a more autonomous way.
Other continuity of care models have evolved to focus on the needs of specific groups, for example, Ms Wannell gave evidence of the "Dragonfly" model of care for Indigenous women in 2019 to allow Indigenous women to have the same midwife for the whole of their journey through ante-natal care, birth and postnatal care.
These changes to midwifery practice caused by changes in complexity are borne out by statistics noted below. The Secretary suggests these statistics did not point to significant change, but we disagree for the following reasons:

[496]

We accept the validity of that submission, which accords with the approach taken by the 2003 Full Bench. We note, however, that the evidence we received was not limited to those areas of nursing that are of the highest intensity, but covered nursing in a range of situations, including community nursing, small regional nursing, larger regional nursing and general ward nursing, allowing us to understand that the impact of increasing acuity has been widespread.
The second submission put by the Secretary is that evidence as to changes must be assessed against the fact that capacity to accommodate change is inherent to the profession of nursing, at least since professional rates were awarded to nurses. We accept the validity of that submission, which is a matter we identified in the earlier section addressing the approach to be applied. That principle is relevant to the introduction of specific changes to one part of the nursing workforce. As the 2003 Full Bench held, it does not, however, answer systemic changes of significance over an extended period.
The third submission put by the Secretary is that "impressionistic" evidence of the Association's witnesses as to these matters should not be accepted where it "conflicts with objective data". In this regard, the Secretary contends that the "objective data" concerning acuity presents as evolutionary change and not a fundamental change or significant shift in the way the public hospital system provides care and services. The Secretary points to bed occupancy levels increasing between 2009 and 2024 by only 5.84% and noted that was counterbalanced by about a 47% increase in the number of FTE nurses and midwives between 2009 and 2025. The Secretary notes the absence of objective evidence of any increase in co-morbidities in hospital wards for patients during the relevant period. The Secretary identifies the evidence as to change in data concerning maternity work, such as the increase in the average age of mothers over 40 years set out above.
We accept that we need to take care to ensure that we do not place undue weight on broadly stated subjective statements and would not accept them to the extent that they are at odds with objective data. However, the evidence that was given was not contrary to objective data. The data demonstrated the increasing age of patients (which the Secretary accepts means that patients on average have increased co-morbidities and associated complexity). The data demonstrated the shorter length of stay, which means patients are in hospital during their most acute phase. The data as to maternity work was consistent with a significant increase in the number of older mothers who have increased risks and complexity.
The one aspect of the Secretary's submission in this regard we do accept is that the increase in admissions ought to be considered in light of increases in nursing numbers - a matter we address in the next section when we deal with workload.
The data is far from perfect. However, we are satisfied that it is consistent with the evidence given by multiple senior experienced nurses that there has been over the datum period a significant increase in the acuity and complexity of patients in the public hospital system.

[497]

We accept the Secretary's submissions that the change in this regard is evolutionary and was a change that was identified in the 2003 proceedings (indeed was the basis of the established work value change). As noted earlier, incremental evolutionary change over a substantial period of time can lead to - and we consider has led to - a significant shift in the way the public hospital system provides care and services and the role of nurses within it, as was found in the 2003 Nurses Work Value Case.[282]
We accept the Secretary's submission that the 2003 Nurses Work Value Case had regard to a substantial increase in acuity, and that we must be careful not to double count such a change. While that is accepted, it does not follow that a further change in acuity that leads to a substantial change in the way that work is performed cannot be the basis of a work value increase in wages.
As the Full Bench in the 2003 Nurses Work Value Case noted,[283] an increase in the acuity of patients does not, of itself, automatically translate to a significant net addition to work requirements for nurses and midwives such as to justify a wage increase. It was not then, and is not now, a new phenomenon; such increases have been identified in past work value inquiries as early as 1981. As the Full Bench there noted, "the impact of the pace of the change must, to some extent, be offset by the fact that the change is part of a continuum".[284]
The Secretary submits that patient acuity changes since 2009 are "mostly" modest increases along the same continuum of change recognised in the 2003 Nurses Work Value Case.[285] The Secretary submits that adapting to these changes is an intrinsic part of the professional role of nurses and midwives. Accordingly, the Secretary contends that the Commission should not reach a similar conclusion as to the existence of work value change in relation to these changes because there is no evidence in this case of a system wide change involving a significant shift in the way the public hospital system provides care and services and the role of nurses within it.
We agree with the Full Bench in the 2003 Nurses Work Value Case,[286] in its rejection of the view that because dealing with increasing acuity and dependency levels is an intrinsic aspect of the nursing profession such change cannot constitute the basis of a wage increase on work value grounds.[287] Public hospitals continue to evolve to address increasing numbers of patients, who are on average older and with more co-morbidities, while implementing advances in medicine, with the result that the demands increase at a faster rate than increases in funding. The evidence records that they continue to implement changes that result in patients, who are on average sicker on admission, staying for ever shorter periods of time, such that they are in hospital only at their most acute stage. They have greater numbers of admissions and discharges per day. Of course, those at the frontline who must implement these changes, admit these patients, care for them and discharge them, are nurses and midwives. To do so they must continually learn to work smarter and faster. Change in any given year and particular skill and training improvements are part and parcel of being a professional nurse. But, as was found in 2003, such change, if it does continue over a period of time, and when viewed as a whole, be so significant as to meet the "strict test". That is so where there are a range of changes to the way that work is performed that, while not individually a change of sufficient significance, taken together demonstrate that the way that work is done has fundamentally changed.
The Full Bench in the 2003 Nurses Work Value Case concluded:

[502]

While admissions have increased, patient stays have decreased resulting in "patient churn", thereby increasing the pressure on, and workload of, nurses because they are expected to manage higher care loads within shorter inpatient stays which has intensified the pace and pressure of the clinical environment. In addition, this patient churn increases the workload of nurses because of increased admission and discharge requirements.
The workloads of nurses has also increased because of an increase in health literacy among patients, which has resulted in an increase in misinformation. Dr Phipps explained that this growth in health literacy increases the workload of nurses, who are required to spend time "unravelling" the online information read by patients.
The above data shows a substantial increase in work. The 2003 Nurses Work Value Case, where there was also evidence of an increase in total work, occurred against a background of a nursing shortage. That meant the increase in workload fell on the shoulders of a workforce that was not increasing and was also having to deal with changes that were making the work more complex and intense. As a result, the increase in total work was a factor that was taken into account.
Here, the increase in work has been offset by a substantial increase in nursing staff, which was 39,352FTE in June 2010 and 56,549FTE in June 2024. The Secretary submits that the bed occupancy rate increase between 2009 and 2024 of 5.84% has been more than counterbalanced by about a 47% increase in the gross nursing and midwifery workforce between 2009 and 2025.
The increase in nursing and midwifery FTE arises from the compulsory "minimum nursing hours per patient per day", introduced in NSW public hospitals for most general medical and surgical wards in the Public Health Award in February 2011. This minimum requires that six nursing hours be given to each patient. As a result, the number of nurses on each shift in some wards increased. More recently numbers have increased further as a result of a memorandum of understanding entered into by the Association and the NSW Government in June 2023 to implement various safe staffing levels set by a safe staffing taskforce and funded by the NSW Government. Mr Griffiths gave evidence that the safe staffing levels are not rolled out in every ward or unit in NSW, instead focusing on five key areas, including emergency. The roll out will commence with level 5 and 6 (larger) facilities, before moving to level 3 and 4 in phase two. Ms Collins gave evidence that more than 500 FTE of additional nurses have commenced in emergency departments that are in the process of, or have completed, the safe staffing roll out.
We broadly, accept the Secretary's submission that the substantial and ongoing increase in the nursing and midwifery workforce has ameliorated the increase in work arising from the greater number of patients. For that reason, we reject the Association's work value case to the extent that it relies on an increase in presentations and admissions with one exception.
The exception is the evidence of the increase in patient "churn". That is, not just the increase in patients, but the increased number that are admitted and discharged every day which flows from the reduction in average length of stay and the increasing demand. Not only does this give rise to increased work, but it has also intensified the pace and pressure of the clinical environment. Of itself it would not have been sufficient to meet the strict test for an increase on work value grounds, but in circumstances where those patients are also sicker and more complex on average, it is part of the evidence that satisfies us that changes in acuity have had a significant effect on the work of nurses.

[547]

It was also an agreed fact that eMR can automatically upload recorded data from various monitors and equipment.
The Association submits that the rollout of eMR has led to increased used of "Workstations on wheels" (known as WOWs or COWs), which are computers on wheels that can be brought to a patient to prepare notes while observing the patient.
We received evidence from Association witnesses, namely, Mr Butcher, Ms Campbell, Ms Coombs, Ms Bonett, and Ms Fifield to the effect that the eMR resulted in more time intensive documentation, increased regulatory and compliance issues, and redundant and or duplicate documentation requirements, each of which has created more work for nurses and midwives.
In addition, evidence was given of the difficulties encountered by using WOWs, including not having enough WOWs available, and the consequent delays in conducting assessments where notes are required to be entered contemporaneously and no WOW is available, and the challenges of maintaining patient "rapport" while nurses' backs are turned from the patient while they operate the WOWs.
The Association submits that the rollout of eMR has coincided with a surge in documentation, audit and compliance requirements more generally.
In response, the Secretary submits that nurses and midwives have always been required to document patient observations and treatments. The introduction of electronic medical records means that rather that recording this data on paper, nurses are required to enter it into an electronic record.
The introduction of eMR has required nurses and midwives to work in a different manner requiring different skills. Looking at a screen and navigating through a series of pages and prompts will distract a nurse or midwife from patient interaction, requiring them to work harder to maintain the necessary communication.
We do not consider that this change constitutes a change in work value. As the Secretary contends, electronic records assist nurses to do some aspects of their work more quickly. It allows a nurse to call up an electronic record from anywhere in a facility, without needing to find the paper records that can be moved around by clinicians. The electronic prompts reduce the risk of data being missed. They are always legible. They allow for a level of automation. Information in some cases is automatically captured without the nurse needing to enter it. That has occurred with ECGs and patient vital signs recorded by a pulse oximeter or blood pressure monitor attached to the patient. There is also automation in respect of patient flow, including patient scheduling for appointments.
While many of the Association witnesses considered that entering an electronic record takes more time and is an added burden, there was evidence that its introduction has been beneficial to nurses.
Professor Brendan McCormack, Professor of Nursing and Head of School and Dean of the Susan Wakil School of Nursing and Midwifery at the University of Sydney gave evidence for the Association. He agreed in cross-examination with a series of propositions as to the benefits of electronic medical records for nurses. In describing eMRs as "fundamental now to nursing practice", the Professor agreed that they assist in various ways to make the work more efficient, such as by improving referral management within hospitals, assisting to streamline workflow processes, enabling auditing and reporting to drive continuous improvement, facilitating the sharing of data for research. The Professor also agreed that it assists nurses in various ways. It facilitates the streamlining of the escalation of care by providing, via the Between the Flags standard, prompts and alerts that assist clinicians, and also supports the standardisation of care. By streamlining aspects of care and management it reduces, in some respects, the workload of nursing staff, as does the integration of biomedical devices, such as ECGs. It also saves time by making pathology and radiology ordering quicker and allowing access to the results readily accessible. Having been taken through all of the ways eMR assists, he gave the following evidence:

[550]

The Association relied on the introduction of virtual care as a significant technological change with work value implications, particularly since COVID‑19.
Virtual care encompasses different models, including telehealth, vCare and the Virtual Rural Generalist Service (VRGS). Each are methods that allow patients to be seen by doctors or other nurses remotely, assisted by a nurse who is present with the patient.
There is more work for nurses and midwives to do under virtual care models, including increased responsibility and increased documentation requirements.
Previously, doctors would conduct physical assessments. With the doctor now being in a remote location the nurse or midwife has to exercise their clinical judgement and communication skills to ensure that the doctor understands the issues affecting the patient.
As Mr Leach explained, the nurse in the room with the patient is now wholly responsible for collecting the diagnostic information that can only be obtained via physical assessment.
As a further example, the introduction at Yass Hospital of VRGS since 2023 has led to nurses going beyond the initial triage assessments before referring to a doctor to now conducting advanced assessments before the patient is seen by a doctor via VGRS. Such assessments, previously done by a doctor, can be abdominal, neurological or respiratory.
In some instances, such as a midwifery context in Western New South Wales LHD, midwives are directing non-birthing nurse clinicians on how to safely birth a baby through virtual care. This requires midwives to have additional skills, including being able to provide precise instructions to the person assisting with the birth.
These changes have come about as a result of technological advances. It means that NSW Health does not need to have doctors physically present in remote locations. It allows specialists to treat patients remotely in larger regional locations.
The Secretary contends that the skills the nurses are exercising are the same skills they are otherwise trained to exercise, and were exercising before the advent of the remote treatment technology, including examining the patient and exercising clinical judgment. The only difference, the Secretary says, is that the nurse needs to operate the communication equipment (camera, microphone and speaker) or ensure it is working, and communicate what she or he is observing, rather than the doctor doing the observations themselves.
This adjustment does not constitute a significant net modification to the responsibilities of nurses and midwives in isolation. However, when considered alongside additional changes, it is relevant to determining if there has been a substantial net difference. There is a substantial difference in responsibility that comes with being the person present with the patient who must take the observations and then, under instruction, to provide the required care or treatment. The evidence given as to how nurses with limited midwifery skills assist women to give birth by direction given by remotely located midwives is one example. This change is an example of the way that nursing and midwifery work has changed in a manner that both requires an enhancement of the skills they have, but more importantly sees them required to work to their full scope of practice.

[562]

Dr Byfield gave evidence of further changes and enhancements of the training. In 2021, the enhancement he said gave rise to students having a higher proficiency in performing skills. While the topics remained the same, the level of depth of understanding was more significant. By way of example, Dr Byfield said "previously it would require and EN to observe a patient, now it required them to interpret health information". In 2022 the course was updated to include additional information and requirements around infection control, which Dr Byfield said further enhanced their scope of practice.
Ms Field accepted that not all the skills taught in the Diploma of Nursing are skills that an enrolled nurse is called on to exercise day to day when employed by NSW Health. It depends on the setting in which the enrolled nurse is employed and the way that nursing tasks are divided in that location. We note that this is true also in respect of the training given to registered nurses and midwives in their undergraduate studies. We nevertheless place significant weight on the fact that the base training has expanded to include skills that were not previously expected of enrolled nurses.
Ms Field accepted that the Diploma course covered material that was previously taught to enrolled nurses in the Certificate IV course. However, it has also changed and expanded since 2010. An example of that is training in respect of culturally and linguistically diverse patients, which was part of the Certificate IV course, but in recent years has been enhanced to require students to demonstrate skill and competency in that area as part of a chronic care placement as well as other units.
A further educational change that affected enrolled nurses was the introduction in 2010 of the requirement to do 20 hours of CPD per year. While enrolled nurses previously had a responsibility to maintain their knowledge base by ongoing self-development, this formal obligation being applied to a sub-professional level employee is a matter of some significance, requiring them to meet the same obligation as ordinarily falls on professionals. The same obligation as applies to registered nurses and midwives.

[571]

"Q. In this paragraph, you make the statement after describing the time period of the last 20 years, "The acuity of patients has increased", and then you say, "This is reflected in the training of ENs", and you refer to a particular unit of the training. What is it about that unit which reflects the view that the acuity of patients has increased?

A. It's all - that unit talks about acute care so presentation of acute care conditions, so it may be things like not only preoperative but postoperative care. If a patient sort of develops an acute illness whilst in hospital, say for example, they've come in for a procedure and they become septic, being able to pick up sepsis, as I mentioned previously, the patients that are being operated on have a lot more comorbidities or health problems, chronic health conditions so there are a lot more potential for postoperative and complications. So, the enrolled nurse needs to be able to identify that deterioration and act accordingly to - for safety of the patient.

Q. is that training that was part of enrolled nurse training at an earlier time than the commencement of that unit?

A. This unit is a new unit. We had to - when we were accredited back in 2024, we had to rewrite 16 out of the 25 units. This unit is a combination of two units, so it was acute care but it was - it had what we call a different number so there - this HLTEN00043 has increased in size because it now has another unit, complex care unit incorporated into it.

So, it's what we call a high-risk unit. We teach it with medications and yeah, in their block, they're currently actually - my enrolled nurse students are learning this unit and we teach it with medications and then a smaller unit, the care of a patient with diabetes. Usually, their blocks consist of nine units but this block because it's such a substantial unit, they only complete three with medications as a substantial unit as well.

Q. Were ENs though being taught issues in respect of dealing with patients that require acute care prior to the introduction of this unit in 2024?

A. Yes, but in a lesser capacity so they were able to pick up situations but as I mentioned before, because patients are sicker and there's a lot of, of, you know - what can I say - deterioration that can occur, they get more training on critical thinking and observations and things like that."

[573]

(1) In 2005, the typical enrolled nurse was an aged care based worker, usually in a team leader role, performing nursing duties that assistants in nursing could not do. This included simple wound care and assessing patients.

(2) From 2005, there was an increase in the employment of enrolled nurses in the NSW Health System arising from the value that enrolled nurses were perceived to add to the aged care sector.

(3) Between 2005 and 2025, there was an expansion of the scope of practice of enrolled nurses.

(4) In 2005, an enrolled nurses in a public hospital was an assistant to a registered nurse, without a patient load, being delegated duties by a registered nurse. For example, bathing patients, or attending to "nurse buzzers". At this time, the registered nurse assessed patients, participated in procedures, and gave medications.

(5) From 2005, enrolled nurses were allocated a patient load and started to perform some of these procedures. From 2005, enrolled nurses could work autonomously escalating care to a registered nurse if required.

(6) In 2012, compulsory medication education was introduced for enrolled nurses, allowing enrolled nurses to give out medication. The education of enrolled nurses was updated such that enrolled nurses were not just taught "how to give out pills", but also the "complexity of the medical situation of a patient", how to document medication, the legal requirements and restrictions concerning giving medications, the different routes of medication administration, the medication groups, the different schedules of medications, storing medications, calculation volumes for administration of medications, and how to explain and demonstrate skills in emergencies such as when a person experiences an adverse medication reaction. Dr Byfield noted that s 17A of the Poisons and Therapeutic Goods Act 1966 (NSW) was amended to allow enrolled nurses to give out medication.

(7) In 2015, a further major change occurred whereby enrolled nurses began to be able to give medication via needle or intravenously (IV), when previously only registered nurses were able to do this. Giving IV medication requires a high degree of knowledge and carries high risk. Enrolled nurses must be able to calculate medication dosage requirements, read and apply written instructions from an authorised prescriber, assess the person for medicine effectiveness and side effects, and respond to an allergic pharmacological reaction.

(8) Since 2005, enrolled nurses now insert and remove invasive devices such as nasogastric tubes and do venipuncture as a fundamental part of their role and training. Previously, enrolled nurses could choose to undertake these procedures, whereas they are now a fundamental part of being an enrolled nurse.

(9) In 2005, enrolled nurses would not be deployed to specialty wards, such as ICU, paediatrics or maternity wards. Enrolled nurses were initially deployed to medical or surgical wards. Now, more complex units have been introduced into the training of an enrolled nurse. In "the last few years", enrolled nurses have started to work in high dependency units, and are increasing in community roles, such as hospital in the home, with patients who require intense observation, more frequent monitoring, treatment and care than is provided in most wards.

[580]

A change that Ms Field identified was that from 2010 enrolled nurses in an acute setting take a patient load of 4 patients, supervised indirectly by a registered nurse who has her or his own patient load. Before 2010 they did not have direct responsibility for particular patients, but assisted a registered nurse with patients that were assigned to that registered nurse. When administering medications, Ms Field explained, the enrolled nurse administers to her or his patients with only indirect supervision.
As a result of having their own patient load, Ms Field said that enrolled nurses now engage in clinical handovers, which is qualitatively different to being part of a team meeting or group case conference.
Mr Leach's evidence was that removing catheters and administering medication was work that enrolled nurses undertook before the datum period. His evidence however did not clarify whether that was or was not a common practice.
Mr Leach also accepted in cross-examination that insertion and removal of nasogastric tubes and venipuncture (insertion of a needle to get a blood sample) were tasks that some enrolled nurses may have done in particular hospitals advanced practice prior to 2009 as a result of obtaining additional on-the-job training. He made the point that since the advent of the Diploma of Nursing they are no longer an advanced practice but are foundational skills taught as part of their basic training.
While the performance of electrocardiograms may well have increased since 2011, we note that enrolled nurses were recognised for performing "routine ECGs" by Senior Conciliation Commissioner Wells in 1986.[289]
In determining the extent of the change, we have regard to the evidence that a number of the tasks said to be new from 2011 were tasks that an enrolled nurse was legally permitted to do from 2002, including removing simple drains, removing catheters and administering intravenous medications, and may have done had they been given additional training to do that work. We further accept that it is possible that in rural or regional locations some of the tasks that Ms Field said were only done from 2011 had previously been performed by enrolled nurses.
While we accept that a number of the tasks Ms Field identified as being undertaken in the Sydney LHD since 2011 were undertaken by at least some enrolled nurses earlier, we consider there has been a significant enhancement to the role of enrolled nurses since 2011 onwards as a result of the significant enhancement of the qualification to become a AQF level 5 Diploma, which has led to such skills now being foundational. In addition, we place particular weight on the change to enrolled nurses having their own patient load in an acute setting as one that carries with it a significant change in responsibility.

[587]

The Secretary submits that the training package HLT33115 - the nationally recognised qualification for assistant in nursing in the acute care environment - is not compulsory, and in its initial assistant in nursing specific form was not different to the generic Health Service Assistant training in place 2006. The Secretary submits that the only change of note to this course is the introduction, in 2015, of a requirement to complete compulsory work placement of 80 hours in a hospital, and in an acute care setting. The Secretary submits that it can be inferred that this training would have occurred on the job previously or as part of an assistant in nursing's "prior learning" or undergraduate nursing degree.
The Secretary points to the fact that assistants in nursing are not registered with the Nursing and Midwifery Board, and are not subject to a single education. Instead, a person can enter the role of assistant in nursing via the completion of Certificate III in Health Services Assistance or equivalent, as a second-year undergraduate nursing student or via recognition of prior learning. The Secretary submits that there has been no change to this education requirement since 2009.
It is the Secretary's submission that given the updated training package is not compulsory, and there is no evidence of how many assistants in nursing have completed the course since 2009, and predecessor training packages have existed since 2006, that these changes do not meet the strict test of a significant net addition of work requirements.
In respect of the growth of skills and tasks being performed the Secretary concedes that the evidence establishes that assistants in nursing are now trained to additional skills, such as electrocardiograms or ECGs. The Secretary however points to the concession made by Dr Byfield, in cross examination, that the full range of skills an assistant in nursing performs will depend on the LHD in which they are employed. Accordingly, the Secretary submits that based on the available evidence, the Commission is not in a position to assess whether the changes have been implemented on a widespread basis.
This submission contrasts with the Secretary's contention, that we should disregard the skills of enrolled nurses that have become prevalent, on the basis that such skills may have been practiced in some rural or regional locations prior to the datum period.

[594]

In the 2003 Nurses Work Value Case, the Full Bench had regard to interstate comparisons to the RN8 rate (ie the maximum rate for registered nurses and midwives before promotional positions) in order to determine whether the result otherwise arrived at would be appropriate. In that case nurses' wages in NSW were already higher than their counterparts in other States, which had a moderating influence in determining the amount of the pay increase.[291]
The parties tendered by agreement tables comparing interstate public sector salaries for nurses and midwives as at 7 October 2025.
They show that, before considering the effect of this decision, registered nurses and midwives in NSW are amongst the lowest paid in Australia. Their starting base rates are 0.7% to 14.7% below starting rates in all other States and Territories (with the largest disparity being with Queensland rates), while the top registered nurse and midwife rate (RN8) of $104,336 per annum is above the maximum rate in Tasmania, slightly above the maximum rates in Victoria and South Australia and otherwise below the maximum rates for registered nurses and midwives in the other States and Territories, the greatest disparity being 4.8% below their equivalents in Queensland health.
Enrolled nurses in NSW are 0% to 13.9% below starting rates and 2.8% to 11.97% below maximum rates in all other States and Territories. Current starting base rates for assistants in nursing in NSW are 10.7% to 30% below starting rates and 3.8% to 27% below maximum rates in all other States and Territories (with the largest disparities being to Queensland rates).
Care needs to be taken with the figures presented because they show only base pay, and as such do not consider differences in conditions such as shift allowances that can give rise to differences in take home pay. They are nevertheless helpful to confirm that the increases we are otherwise minded to grant are appropriate. They are increases that will result in NSW registered nurses and midwives and enrolled nurses who have progressed to the top of their scale becoming again the best paid nurses in Australia.

[610]

That data suggest that there are currently no significant or widespread issues with the overall retention of nurses in New South Wales.
As to evidence of attraction, the evidence was that there are currently no difficulties recruiting registered nurses.
The nursing and midwifery workforce has grown by 12.7% or 6,427 FTE between 2019 and 2024. It is projected to continue to grow by about 1.5% per year.
Jacqueline Cross, Chief Nursing and Midwifery Officer for NSW Health, gave evidence that NSW Health receives more applications for registered nurses than there are positions available via its central recruitment portal. If there is a shortage of nurses in NSW it is not one that is currently affecting recruitment by NSW Health. Ms Cross accepted that there are inadequate numbers of newly graduated midwives, due to a shortage of available training places. This is addressed by NSW Health providing training to registered nurses to take on postgraduate study to become qualified midwives via the "Midway" program.
The Association submits that these statistics do not "tell the full story". The Association points to evidence of the steps that NSW Health has taken to try to address vacancies in regional and remote locations. It also led evidence of a shortage of nurses at an international level and projections that there will not be enough nurses at a national level by 2040 assuming ongoing high growth. It relies on evidence of Professor James Buchan, Health Workforce Policy Analyst, currently Senior Fellow at the Health Foundation, UK, and Adjunct Professor at the World Health Organisation Collaborating Centre at UTS, that COVID-19 has had a negative impact on retention of current nursing staff, and a reducing interest in nursing as a career.
As noted, we accept there remains persistent difficulties in recruiting nurses and midwives (and indeed other health professionals) to regional areas, and in particular remote areas. NSW Health has a series of measures to address that issue, that include increased scholarships and travel support to attract nurses and midwives to those areas. Money alone, however, is not the answer as the issues that make recruitment difficult are not limited to pay, but extend to the availability of suitable accommodation, childcare and other services.
We do not consider it appropriate to increase wages across the board to address attraction or retention issues that, on the evidence before us, are not widespread.
In short, while we acknowledge that any increase in remuneration will have a positive effect on recruitment and retention, we do not consider that on the evidence we ought to award an increase in remuneration on that basis.

[615]

In respect of registered nurses and registered midwives, we have earlier found that since 1 July 2009, when rates were last changed for work value reasons, there has been such a significant overall change to work value as to meet the "strict test" for an increase in remuneration.
In settling on the size of the increase, we give careful consideration to the true value of the "invisible skills" that have not previously been given express consideration in order to ensure that they are not undervalued. In assessing the increase in light of that evidence we take into account the substantial increases awarded in the Professional Rates Case which led to registered nurses and midwives being appropriately recognised to be on par with other health professionals.
In determining what rates are appropriate, we are acutely conscious of the fiscal impact of any increase in rates over and above that which has been budgeted, which we addressed in some detail above. In particular, we understand that for each 1% increase in rates above that which was budgeted the NSW Government will need to spend an additional $74.5 million per year, which can be expected to add to the NSW Government's debt. We have also had regard to the stimulatory nature of any increase and its effect on the economy of NSW.
Taking into account all those matters, we assess that for registered nurses and midwives there should be a one-off increase of 10%. We anticipate that will come at an additional cost, over the 3% increase that was budgeted, of about $2.5 billion over a 5-year period.
In determining this increase, we have had regard to the fact that an increase of this nature will not only address changes in the cost of living that have occurred in recent years, but on the evidence before us will in fact result in an increase in remuneration in real terms. We consider an increase in real terms is appropriate given our acceptance of the increased value of the work done by nurses and midwives in the New South Wales public hospital system.
We are satisfied that the rates which we set remove any existing gender undervaluation having had due regard to the caring and other invisible skills historically not expressly considered by wage fixing tribunals.

[617]

Assistants in nursing are comparatively low paid workers, with their starting rate of pay of $1,023.40 being only 7% above the federal minimum wage and currently well below the minimum rates set for assistants in nursing working in aged care under the federal award.
We have found that there has been a significant increase in the work value of assistants in nursing to a greater extent than for registered nurses and midwives over the relevant period which we determine ought to be addressed by a one-off increase in rates.
In addition, in order to ensure there is no gender undervaluation, there needs to be a substantial increase in rates. As is the case for enrolled nurses, we consider the findings of the FWC apposite, and the rates set at a federal level for assistants in nursing in aged care a relevant minimum benchmark to be considered. We set out the comparative rates earlier. To match the rate of pay at a federal level for an assistant in nursing in aged care after three months ($1,248.50) the rate for 1st year assistant in nursing under the Public Health Award without a Certificate III qualification would need to be increased by 23.8% and the 2nd year rate by 18.2%. To match the current top rate for a nursing assistant under the federal aged care award after four years the top rate under the Public Health Award would need to be increased by 17.05%. To match the newly introduced 5th year rate in the federal aged care award, which will not come into effect until 1 January 2029, the top rate under the Public Health Award would need to be increased by 21.7%. Having regard to those comparative rates we determine to increase the rates for assistants in nursing by a one-off 22% which will ensure the rates are slightly above federal minimum rates, other than for a 1st year with a Certificate III in the period from their 4th month to the end of their first year. When the nominal terms of the awards made by this decision end on 30 June 2027, consideration may need to be given about whether the rates for assistants in nursing ought to be increased to ensure they remain above the equivalent federal minimum rate accessible on 1 January 2029.
While the increase is greater in percentage terms, their much lower rate of pay and the relatively small number of them means the higher increase we have determined will not create a significantly different impact on the fiscal position of the NSW Government. Further, to the extent that Determination 10 of 2025 has already lifted the actual rates paid to assistants in nursing in certain aged care facilities, the impact of the increase we award will be mitigated.

[626]

As can be readily discerned from the foregoing, it is no small task for an applicant to demonstrate gender undervaluation. The Association took on the burden of leading substantial expert and lay evidence; a large undertaking. It could not merely rely on a statement published by the NSW Government in budget papers as to the existence of gender undervaluation. In response the Secretary, in effect, put the Association to proof, ultimately contending that the Association had not met its evidentiary burden.
During the proceedings the Commission identified that despite its extensive case, the Association had not put before the Commission all the evidence required. In particular, the Association's experts in preparing their initial reports had not considered various past decisions of the Commission which set rates of pay for nurses and midwives, including the Professional Rates Case. A list of awards and decisions in addition to those identified by the parties was provided to the parties. That gave rise to additional submissions in closing, and they form the basis of the section in this decision setting out the history of the Existing Awards.
The FWC has a Tribunal Support Branch that has a Pay Equity and Awards Team that publishes research papers and information notes that assist the FWC to exercise its statutory functions.[302] These resources have assisted the FWC to bring about substantial and effective changes to address gender-based undervaluation.
In Re Crown Employees (School Administrative and Support Staff) Award[303][304] the Commission observed that pay‑equity cases are resource‑intensive and raised questions about whether it is sufficient to rely on adversarial proceedings initiated by an applicant union to give full effect to the Equal Remuneration Principle and the objects of the Industrial Relations Act 1996. This matter has again demonstrated the practical difficulties faced by parties and the Commission in ensuring, consistently with the Act and the Principles, the absence of gender undervaluation in the setting of fair and reasonable wages and conditions. It raises questions as to whether legislative reform, and/or a more structured administrative or collaborative mechanism or additions to the Commission's resources are required to better support the identification and timely resolution of pay‑equity issues.

[635]

It was not in issue that there would be nurses and midwives who would take more sick leave if the sick leave entitlement in the Public Health Award were increased, resulting in an increase in operating costs from backfilling staff. The increased use of sick leave would not only arise from the illness and injury of nurses and midwives, but also increased time off to care for and support family and other household members.
Nurses or midwives absent on sick leave ordinarily need to be backfilled to meet operational requirements or to maintain mandated safe staffing levels. In such cases, NSW Health bears the cost of backfilling vacant shifts with additional staff, which may be at a higher cost than an ordinary shift because the replacement staff member is a casual employee, an employee working overtime or an agency nurse or midwife.
If nurses and midwives are not backfilled when absent on sick leave, that has consequences for the remaining nurses or midwives on a ward or unit who must work short-staffed or, in some cases, more short-staffed than they already were. Working short-staffed leads to higher pressure and the potential for burnout, which in turn can cause more sick leave. Even when backfilled, the replacement staff member will commonly have a lower level of experience or working knowledge of the ward or unit, resulting in the nurses or midwives already rostered on a shift undertaking more of the higher-level work.
Where shifts are required to be backfilled, NSW Health must find nurses and midwives to fill those shifts. In areas where recruitment is difficult, in particular in areas where there are already vacant positions (primarily regional or rural), it may be even more difficult.
When cross-examined, a number of the Association's witnesses told the Commission of the difficulties they face as managers when there are unplanned absences caused by nurses utilising their sick leave entitlement. They included: the difficulty of finding suitable staff at short notice; the pressures that arise for the manager and the rest of the nurses and midwives on shift from working short-staffed; the impact it can have on releasing staff to do training; the pressure it places on other nurses to agree to work high levels of overtime to cover absences; and the negative effect on the skill-mix that can arise where replacement staff are sourced from the casual or agency pool. More than one nurse manager witness spoke about the fact that they had to help on the floor, rather than do their usual duties, to cover unplanned absences, increasing their workload and pressure. Each accepted that the issues they have faced would be compounded by an increase in the sick leave entitlement.
Of further concern was the evidence given by some witnesses that where suitable replacement staff cannot be found to replace unplanned absences then beds are closed (or at least not opened) to ensure safe staffing levels. This impacts the capacity of hospitals to treat patients. Christine Stephens, District Director Nursing and Midwifery at Murrumbidgee LHD, gave evidence that:

[637]

Julie Henderson, formerly a NUM and later Acting Nurse Manager and Acting Director of Nursing, who was called by the Association, told the Commission that due to unplanned leave and patient acuity there were weekly occasions where the ICU at Griffith Base Hospital would only open five of the six available beds to ensure safe staffing levels.
If the claim were granted, we consider it likely that there would be a need to increase staff establishments for at least the larger wards or units to reflect a changed assumption as to the level of sick leave that will be utilised, requiring the employment of additional nurses. There was no evidence directed at the cost of such a change.
The Secretary did present evidence estimating the increase in costs associated with backfilling staff who utilise an increased sick leave entitlement. These figures did not factor in the potential need to increase overall nursing numbers. While based on actual sick leave use, the utility of the estimates was marred somewhat by unlikely assumptions as to the utilisation of sick leave (namely, that there would be either 100% or 10% utilisation). However, we are comfortably satisfied that to grant the claim would cause a significant additional cost, likely to be for FY26/27 somewhere between $41.5 million (10% utilisation of the leave) and $207 million (about half of an increase that assumed 100% utilisation), and which over five years would likely result in an increased cost to NSW Health in the order of $126 million to $603 million. Granting the claim only in part, by increasing the entitlement from two weeks to three weeks, would not significantly reduce the cost of the claim, given that the bulk of the additional cost will arise from the first week of additional leave.
In addition to the direct cost, any increase to sick leave for nurses and midwives would have the real potential to flow on to the rest of the NSW Health workforce, with the potential to double the impact on the NSW Health budget. Whether new granted entitlements flow on rests in large part on the reason why the entitlement is awarded. Were we to grant the claim on the grounds pressed, it would be difficult for NSW Health to be able to distinguish these circumstances from those that apply to many of its employees who work in hospitals in NSW.
In short, the impact of the claim, if granted in full or in part, would be increased pressure on nurse and midwife managers to manage unplanned absences, potential reduction in services, a need for more nurses and midwives to be employed overall, and a substantial increase in expenditure to fund the additional backfilling of nurses and midwives. In light of those matters, the Association needed to establish a substantial case demonstrating that the existing entitlement is inadequate and so must be increased.

[640]

While we accept that nurses and midwives have a risk of illness or injury from one or both of those two factors, the case as presented did not satisfy us that the current entitlement is, considered overall, so inadequate that it ought to be increased in light of the consequences of doing so considered earlier. We come to that view for three primary reasons.
First, no evidence was presented to establish that nurses and midwives are sick more often than workers in other industries and if so, to what extent. Nurses and midwives do fall ill as a result of exposure to an infectious disease at work, but there was no evidence that across all nurses that happens at a greater level than workers in the general population, and if so to what extent. Not all nurses and midwives are employed doing work that has an increased risk of exposure to infectious diseases, with midwives, oncology nurses and theatre nurses being examples of employees who would not have an obvious increased exposure to such diseases. For those nurses that do have an increased exposure, there are various protocols to deal with preventing the spread of infectious diseases.
Similarly, beyond some limited anecdotal evidence, there was no evidence that high intensity working conditions cause nurses and midwives overall to take more time off work due to illness or injury than workers generally.
Second, there was only limited evidence relevant to establishing the extent to which nurses and midwives exhaust their accrued sick leave in full, and no evidence as to how that compares to employees generally.
It was an agreed fact that in FY22/23 about 20,000 nurses used their full sick leave entitlement (which would have been about 29% on a headcount basis), an increase from the position in FY17/18, FY18/19 and FY19/20, when in each year about 15,500 used their annual entitlement (being about 23%). The agreed fact, however, did not indicate the number of nurses and midwives who had an accumulated total sick leave balance of zero. Nor did it provide evidence of the extent to which nurses and midwives were unable to access sick leave as a result of their personal illness.
The same agreed fact data recorded the average sick leave balance across the years FY17/18 to FY22/23 decreased from 197.7 hours (about 5.2 weeks) to 166.4 hours (about 4.4 weeks), suggesting increased utilisation, but not establishing the current entitlement as manifestly inadequate.
Ben Morwitzer, a Research Officer employed by the Association, gave statistical evidence based on data provided by NSW Health as to the utilisation of sick leave by nurses and midwives from seven hospitals that showed that in 2024 between 7% and 10.5% of nurses and midwives took sick leave equal to or greater than the amount they accrued that year. At odds with the agreed fact data summarised in the previous paragraph, the figures for the seven hospitals showed that, at each hospital, the percentage of nurses and midwives utilising a full year's entitlement had decreased every year between 2018 and 2024.
Mr Morwitzer also gave summary evidence based on data provided by NSW Health which he said recorded the number of nurses and midwives who had "exhausted their sick leave entitlement" in 2018 (7,643), 2020 (7,917) and 2024 (9,838). Presuming that the numbers recorded were a headcount, not an FTE count, the numbers represent between 12% and 14% of total nurses. From his report, it was not entirely clear whether the data he was summarising recorded the number of nurses who had used their full 76 hours in that year, akin to the agreed fact data, or those who had used up all their accrued sick leave (including leave previously accrued) such that they had a zero balance.
Third, and importantly, there was no evidence to establish the extent to which the utilisation of sick leave arises due to illness or injury, and specifically as a result of infectious disease or intensity of work or for other work-related reasons, as against utilisation to care for family members.
It is clear that for a cohort of nurses and midwives, a significant percentage of their sick leave use arises as a result of caring or supporting family or household members, rather than due to falling ill due to exposure to infectious diseases at work. That is unsurprising given that nurses and midwives are overwhelmingly female and, as such, are more likely to be caregivers to ill family members, for which, of course, they are ideally suited given their training. The Association's closing submissions cited some anecdotal evidence from witnesses who found that having used most of their entitlement to care for family members, they had insufficient accrued sick leave left when they were themselves ill. The Association contends that having more sick leave available "would have made life easier" for the predominantly female workforce. So much can be accepted, but it is not a satisfactory basis to create a higher entitlement for nurses and midwives arising from the nature of their work.
If the sick leave entitlement were increased, it is likely that some proportion of its increased utilisation would be to care for or support family or other household members, rather than to replace income for nurses and midwives who are themselves ill or injured and so unable to work. We have no evidence to identify what proportion would be used for that purpose, but have no reason to think it would not be significant.
For those reasons, the claim as made is rejected.

[647]

It seems both parties accept that nurses and midwives should be entitled to request workplace flexibility and that such requests ought only to be refused on reasonable grounds. In light of that common starting point the Full Bench invited the parties at the outset of the proceedings to attempt to resolve this claim by further discussions. The parties had those further discussions and informed the Full Bench they had been unsuccessful.
While we accept much of what the Association put in support of the claim, we reject the claim as pressed.
It can be accepted that the workforce in question is overwhelmingly comprised of women and as such is disproportionately likely to be adversely affected by a lack of access to flexible work. As the Association submits, access to flexible leave arrangements facilitates sustainable careers for women and supports their participation in the workforce over their lives. Given the importance of not only attracting but also retaining nurses, such measures have a positive impact on NSW Health.
However, as the Association's submissions appropriately recognise, flexible work arrangements in public hospitals can be complex to implement in practice, especially in public hospitals where staffing must be maintained at safe and effective levels on a 24/7 basis. Indeed, it is the Association's members, in particular Nursing Unit Managers, who have the difficult rostering task of seeking to fill every shift while allowing as far as possible requests by nurses to work hours that suit their personal circumstances.
The Association did not lead evidence to establish that the 2025 Directive fails to allow suitable access to flexible working arrangements. Nor did it lead evidence to support the proposition that the previous 2023 Guideline was more effective than the current 2025 Directive. No attempt was made by the Association to compare and contrast the two documents so as to identify shortfalls with the current 2025 Directive.
No evidence was led to the effect that the current 2025 Directive has resulted in nurses and midwives being unable to make requests for flexible working hours, or that such requests were inappropriately refused. Witnesses called by the Association who are responsible for rostering gave evidence that they did, as far as possible, accept requests by nurses to work particular hours.
Pamella Barrett, a Nurse Unit Manager at Tweed Valley Hospital, gave evidence that she does "try to be as flexible as I can with a nurse's requests. That's what a good manager does, and so I am mindful of that". Ms Barrett said she does this:

[649]

Ms Barrett said her decisions concerning flexibility are "very much" dependent on the operational circumstances that she needed to manage. For example, she said "[n]ight duty is non-negotiable. You can't get out of it if it's your turn, you have to do it. I'm happy for you to swap if you're a senior, but it is non-negotiable". To assist her flexible rostering, Ms Barrett sends a daily WhatsApp message detailing which wards and units require staff, whether overtime has been approved, and if any "deals" can be negotiated to cover vacancies that arise.
Likewise, Kristy Wilson, a Nurse Unit Manager at Griffith Base Hospital gave evidence that she considers requests for flexible working arrangements based on various factors, including whether the request can be "accommodated within the organisational framework". Ms Wilson said that her staff's flexible working arrangements are mutually beneficial for the hospital and the nurse.
Christine Stephens, District Director, Nursing and Midwifery and Health Services Functional Area Coordinator for the Murrumbidgee LHD, gave evidence that been able to provide flexible work hours to staff in her district, using a combination of 8, 10, and 12-hour shifts.
Paul Haines, a (part-time) CNS at Yass Hospital, gave evidence that he works part-time as a paramedic for the ACT Ambulance Service. Mr Haines gave evidence that he works as a paramedic on a fixed roster, and that his Nurse Unit Manager rosters him to "fit" his nursing shifts around his paramedic roster to make sure there is a no clash.
Given the absence of evidence that the current 2025 Directive has resulted in a lack of flexibility for nurses and midwives, we are not satisfied that it is necessary for the Existing Awards to contain a clause addressing access to flexible working arrangements.
Even if we were of the view that the Existing Awards ought to contain a suitable clause, we would not uphold the claim as pressed. The Secretary correctly notes that the proposed clause seeks to make mandatory (at pain of civil penalties) the application of a document that is not drafted in terms of obligations. Making mandatory the application of a document that is broadly aspirational and non-specific is likely to give rise to disputation and uncertainty. Further, as drafted the clause is ambiguous by stating that compliance with the rescinded 2023 Guideline is required only "in so far as compliance is in accordance with the terms of this Award".
For those reasons, we reject the claim for a new clause in the form pressed by the Association. As noted, that is despite our view that the Existing Awards could include a suitable clause that provides a broad right to request flexible working hours.

[652]

The PTS was established in October 2015 to provide non-emergency patient transport.
The work of transporting non-emergency patients is done by a crew of two, made up of either a nurse with a PTO or a Driver (the latter also known as an MVD), or two PTOs, or a PTO and a Driver. Only crews that include a nurse can move "Class B Transport" patients whose acuity requires active treatment and/or monitoring during transport.
Currently about 115 registered and enrolled nurses work for PTS. These nurses are employed under the Public Health Award, which has different rates of pay and conditions from those applicable to PTOs. That is explained by the following industrial history.
The PTS was created following a need identified in the Special Commission of Inquiry into NSW Public Hospitals to reduce demand on NSW Ambulance by moving the work of non-urgent patient transfers in metropolitan Sydney to a separate standalone service.[312] When the PTS was created in 2015 it took 218 PTO FTE positions from NSW Ambulance, a further 100 PTO and Driver FTE positions from LHD, and 84.51 nurse FTE positions from LHDs, to establish the PTS workforce.
The PTOs from NSW Ambulance had been covered by the Operational Ambulance Officers (State) Award. The PTOs and Drivers from Local Health Districts had been covered by the Health Employees Conditions of Employment (State) Award and the Health Employees (State) Award. The nurses who joined the service were covered by the Public Health Award.
From the outset the conditions for the PTOs and Drivers were standardised by consent, in the form of a determination which was later replaced by the Healthshare NSW Patient Transport Officers (State) Award 2024. The agreed conditions largely reflected the better conditions of the Operational Ambulance Officers (State) Award. The conditions included a paid crib break, reflecting the conditions of the Operational Ambulance Officers (State) Award. They did not include an allowance for cribbing away from base, which was an entitlement for ambulance officers but not an entitlement for PTOs under the Operational Ambulance Officers (State) Award. Nor was it an entitlement under the Health Employees Conditions of Employment (State) Award.
Prior to the establishment of the PTS there were discussions between the Association, HealthShare, and the Ministry of Health over the conditions to apply to nurses transitioning to the new service. They led to an agreed position that nurses would remain covered by the Public Health Award but with a change to provide different conditions for meal breaks and tea breaks. This change was initially achieved by a determination and later reflected in an amendment to cl 4(x) of the Public Health Award by the addition of a new subparagraph (d) as follows:

[655]

The new condition provided a 30-minute paid crib break, not available to nurses working in public hospitals, resulting in PTS nurses working a shorter 8-hour span rather than 8.5 hours, matching the shift length and conditions of the PTOs. This understanding was reflected in correspondence between the parties at the time. The Secretary submits that the Association is seeking to alter a deal done at the time to effect a transfer which provided an improvement in conditions. So much is true, but it is also important to note that the negotiations with the Association were concluded at a time when PTOs did not have a cribbing away from base allowance and, as Elizabeth Allen, Executive Director, Workplace Relations Branch, NSW Health, told the Commission, HealthShare was stating in publications to workers that they must crib away from base and that such an allowance "will not be paid".
After the establishment of the PTS a dispute arose between the Health Services Union and HealthShare over the requirement for PTOs to "crib away". The background to the dispute was that those PTOs who had come from NSW Ambulance had prior to the transfer as a matter of custom and practice returned to base for their crib break. Unlike ambulance officers, PTOs had not been entitled to an allowance if required to crib away from base. On their move to the PTS, PTOs were directed to cease the custom and practice of returning to base to crib, which reduced efficiency. Their response was to claim that if PTOs were unable to return to base (where they could leave their food at the start of a shift in a fridge and heat it up) they ought to be given an allowance, as was the case for ambulance officers.
This gave rise to proceedings before Commissioner Newell and two Full Benches. Commissioner Newell determined that as a result of the change in practice effected by the employer, it was fair and reasonable to introduce an allowance to compensate for the loss of amenity of being able to crib at the base.[313] Commissioner Newell identified the benefits of cribbing at base that were lost and the disadvantages of having to crib away from the PTOs' base as follows:

[658]

As a result of that unique industrial history there are two groups of workers, working side by side, who are affected by the same detriment. One group has that detriment addressed by an allowance while the other group does not.
Ms Cameron gave uncontested evidence as to that detriment. Ms Cameron said that in seven years she had only been able to return to base for a crib break approximately twice. She does from time to time take breaks at health facilities, but on the "vast majority" of occasions she eats in the vehicle. The vehicle does not have facilities to keep food cold or to heat it, meaning she and the PTO rostered with her usually buy takeaway food.
Ms Cameron's evidence establishes that the lost benefits of cribbing at base and the disadvantages of having to crib away from base described by Commissioner Newell remain, and apply equally to nurses as to PTOs.
The Secretary relies on the fact that the second Full Bench, in determining to grant the allowance, proceeded on the basis that the allowance was funded by employee-related cost savings arising from a change in work practice in respect of a majority of the PTOs that transferred to HealthShare.[318] The Secretary contends that, as nurses previously were not returning to base, they did not contribute to the cost savings.
We do not consider that submission persuasive. In our view, the Full Bench started from the premise that PTOs ought to have such an allowance, with the only question being whether it could be granted, given the statutory regime at the time which required the identification of relevant cost offsets. There is no need to identify such cost offsets now, although we must still consider the effect of any such increase on fiscal position of the NSW Government.
The Secretary further contends, correctly, that Commissioner Newell and the Full Bench both identified productivity improvements arising from workers not returning to base for their breaks, which permitted the allowance to be granted under the Productivity and Efficiency Principle. The Secretary points to the fact that nurses as a cohort did not contribute to that productivity change. While the initiative for the allowance came from a change in work practices, there is material industrial unfairness in an allowance being paid to one group for changing a practice that improved efficiency that others had already adopted, so penalising those who had not maintained the more restrictive work practice.
We note also that a proportion of the PTOs, namely those 100 PTO and Driver FTE positions who went to the PTS from LHDs, like nurses, prior to the transfer to PTS did not return to base for crib breaks but instead tended to have crib breaks at health facilities or otherwise on the road. Even though they did not contribute to the efficiency, and suffered no change of amenity, they obtained the benefit of the new allowance, presumably on the basis that there could not be a different entitlement given they were doing the same job. The Association says with some force that the same can be said for nurses.
The Secretary points to the fact that there are a range of differences in conditions between nurses and PTOs beyond the fact that nurses are paid more, including:

[660]

Those conditions exemplify that different industrial histories will lead to different monetary entitlements. There was no submission made that if an allowance were to be extended to nurses it ought to be at a different rate.
The Secretary submits that to grant the claim will have flow-on implications for other workers who similarly must crib away from base from time to time (including, presumably, community nurses) and so might point to the same loss of amenity. The Association answers this by pointing to the unique productivity improvements and savings associated with the change to cribbing away from base and the "industrial injustice of having two workers side by side, experiencing the same detriment, and being treated differently by the same employer because of it".
We are concerned to make clear that by extending the allowance to this particular cohort of nurses we are not creating a precedent that might be relied on to justify an allowance, whether at that rate or otherwise, whenever a nurse or other health employee, or more generally a public servant, is required to take a meal break away from their usual place of work. The decision we make arises from the unique circumstances set out above and is not a finding that such an allowance will necessarily be appropriate to other workers who are required from time to time to crib away from base. Absent the historical change that led Commissioner Newell to find that there had been a "loss of amenity" to a group of workers it is unlikely that PTOs (and now the nurses who work with them) would have obtained the allowance.
Further, we are concerned to make clear that the quantum of the allowance (set by the Full Bench at 75% of the similar allowance paid to ambulance officers[319]) has not been set at a rate that we have considered by reference to evidence of relevant costs. We simply adopt the rate that was determined to be appropriate for PTOs doing the same work. We do so in the absence of any submission that if the claim were granted a different rate ought apply.
We note that the Secretary made no submission that the claim should be rejected in light of the cost of awarding the allowance. The Secretary led no evidence as to the cost of granting the claim. In light of the small number of nurses affected and the size of the allowance, we have no reason to think that granting the claim will have anything other than a negligible impact on the fiscal position and outlook of the NSW Government. Nor do we consider that any of the other mandatory considerations would lead to a conclusion that the claim should be rejected.
Finally, we address the Secretary's submission that the claim ought be rejected because it "appears to invoke notions of comparative wage justice", which the Principles say are not to be countenanced, other than to the extent contemplated by the Gender Based Undervaluation Principle.[320] This is a claim for an allowance to address a disability, not a claim for wages. To the extent that the claim is that the quantum of the allowance should be the same, we note the Secretary made no submission to the effect that if an allowance were granted it should be a lower rate.
In conclusion, a single Commissioner and a Full Bench have determined that workers doing this work suffer a detriment that ought to be compensated by an allowance of the same type as is paid to ambulance paramedics. The Association has satisfied us that nurses working in the PTS suffer the same detriment and it follows that such nurses ought to receive an allowance. We accept that there is a range of differences in conditions between nurses and PTO officers, and it would be better if more of them were standardised. Those differences, however, are not of themselves a reason why nurses should be the only workers doing patient transport who do not get an allowance for the loss of amenity of cribbing away from base.
For those reasons, we determine to grant the claim as made by inserting the following subclause into clause 4(x)(d) into the Public Health Award with the quantum of the allowances to be $26.10 for the first crib and $13.10 for the second crib in a shift:

Parties

Applicant/Plaintiff:

New South Wales Nurses and Midwives' Association

Respondent/Defendant:

Health Secretary [2026] NSWIRComm 4

Legislation Cited (12)

Responsibility Act 2012

Services Act 1997

Relations Act 1996

Guarantee (Administration) Act 1992

Industrial Relations Act 1996

Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

Work Act 2009

Arbitration (Amendment) Act 1926

Arbitration (Amendment) Act 1936

Therapeutic Goods Act 1966

Relations (Public Sector Conditions of Employment) Regulation 2014

Relations Act 1991

Cases Cited (38)

1969 Equal Pay Case [1969] CthArbRp 278; (1969) 127 CAR 1142; [1969] CAR 278

Clothing and Allied Trades Union of Australia v Acme Frocks (1967) 118 CAR 286; [1967] CAR 406

Ex Parte H. V. McKay [1907] CthArbRp 12; (1907) 2 CAR 1; [1907] CAR 12

Federated Clothing Trades of the Commonwealth of Australia v J. A. Archer [1919] CthArbRp 99; (1919) 13 CAR 647; [1919] CAR 99

Inquiry into Female Minimum Rates [1945] CthArbRp 195; (1945) 54 CAR 613; [1945] CAR 195

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29

National Wage and Equal Pay Cases 1972 [1972] CthArbRp 1420; (1972) 147 CAR 172; [1972] CAR 1420

National Wage Case August 1988 (1989) 27 IR 196; [1989] AIRC 345

National Wage Cases 1967 [1967] CthArbRp 504; (1967) 118 CAR 655; [1967] CAR 504

North Australian Workers' Union v Allen Bros (Darwin) Pty Ltd [1957] CthArbRp 211; (1957) 87 CAR 673; [1957] CAR 211

Re 4 yearly review of awards - Pharmacy Industry Award 2010 (2018) 284 IR 121; [2018] FWCFB 7621

Re Aged Care Award 2010 (2022) 319 IR 127; [2022] FWCFB 200

Re Aged Care Award 2010 (2024) 331 IR 137; [2024] FWCFB 150

Re Aged Care Award 2010 [2023] FWCFB 93

Re Aged Care Award 2010 [2024] FWCFB 298

Re Annual Wage Review 2025 (2025) 341 IR 1; [2025] FWCFB 3500

Re Applications by Australian Nursing and Midwifery Federation [2024] FWCFB 452

Re Gender-Based Undervaluation - Priority Awards Review (2025) 340 IR 1; [2025] FWCFB 74

Re Private Hospitals' and Doctors' Nurses (ACT) Award 1972 [1986] CthArbRp 64; (1986) 13 IR 108; (1986) 300 CAR 185; [1986] CAR 64

Rural Workers' Union and South Australian United Labourers' Union v Mildura Branch of the Australian Dried Fruits Association [1912] CthArbRp 33; (1912) 6 CAR 61; [1912] CAR 33

Secretary, Ministry of Health v New South Wales Nurses and Midwives' Association [2025] NSWIC 20

(2025) 341 IR 1

(2025) 340 IR 1

(1989) 32 IR 316

(1989) 27 IR 196

(2018) 284 IR 121

(2024) 331 IR 137

(2002) 121 IR 28

(2003) 131 IR 17

(2024) 337 IR 182

(2020) 271 CLR 495

(2022) 319 IR 127

(1993) 52 IR 243

(1986) 13 IR 108

(2002) 115 IR 183

(2002) 118 IR 336

(2004) 136 IR 477

(1990) 33 IR 79

At a glance

Court

Decision date

Before

Source

Judgment (1075 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (38)