NSW Ministry of Health v Health Services Union New South Wales and anor

Industrial Relations Commission (NSW)|2019-04-12

Judgment

On 25 July 2018 the NSW Ministry of Health ("Ministry") filed with the Office of the Industrial Registrar ("Registry") a notification of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The Notification sought the assistance of the Commission in resolving a dispute that had arisen between the Ministry on the one hand, and the Health Services Union New South Wales ("HSU") and the Australian Paramedics Association (NSW) ("APA") on the other, concerning a possible variation to Operational Ambulance Officers (State) Award 2018 ("Award").
To shortly state the gravamen of the dispute, the Award presently contains a classification of Duty Operations Centre Officer ("DOCO"), which requires the incumbent to be a paramedic. Due to alleged difficulties in securing appropriately qualified candidates, the Ministry had sought to reach agreement with the HSU and the APA on the inclusion in the Award of a new, additional classification for a DOCO position which did not require paramedic qualifications ("Non-Paramedic DOCO"). The Notification stated that the parties had not been able to reach agreement on the terms of a variation to the Award and the assistance of the Commission was sought to resolve that dispute.
I convened several conferences with the parties in an effort to resolve the dispute by conciliation. Having failed to reach a conciliated outcome, on 28 September 2018 I issued a certificate pursuant to s 135 of the Act. On the same day I made directions in anticipation of the matter proceeding to arbitration.
On 3 December 2018 the Ministry filed with the Registry an application to vary the Award pursuant to s 17 of the Act ("Ministry Application"). The effect of the variation sought is to add to the Award a Non-Paramedic DOCO classification, to allow for rates of pay for that position and to make consequential amendments to the Award.
Also on 3 December 2018 the Ministry filed evidence and submissions in support of the Ministry Application.

Evidence and submissions

Only limited evidence was adduced on the Motion.
The Motion was supported by an affidavit sworn by Breeanna Jacobs, an industrial officer of the APA, on 20 December 2018. In her affidavit Ms Jacobs stated that the Ministry Application was made without the consent of the APA. She further deposed as follows: "5. The application for variation is inconsistent with clause 46 of the Operational Ambulance Officers (State) Award 2018 in that it is contrary to the clause that no further claims/demands shall be made or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment."
The Ministry tendered three statements and relied on them "to the extent that has been referred to in our submissions as to the circumstances giving rise to and the characterisation of the application that's being made". [1] Those statements were made by: 1. Lawrie Whitehurst, the Manager HR Services, People and Culture at NSW Ambulance; 2. Anthony Gately, the Director Control Centres, NSW Ambulance; and 3. Lauren Ariansen, the Acting Chief Superintendent, Deputy Director Western Control Centre, Clinical Operations at NSW Ambulance.
Consistent with the basis on which it was tendered, I have had regard to the Ministry's evidence but it has not featured heavily in my consideration of the Motion. As will be seen, the resolution of the Motion depends more on the application of relevant legal principles.
Each of the parties relied on written submissions which had been filed with the Registry. I will not reproduce or attempt to summarise those submissions, but instead will deal with the issues to which they give rise below.

Principles to apply on the Motion

As I was otherwise referred to the case in these proceedings, albeit on a different basis, it is convenient to observe that in Child Protection (Working with Children) Award 2014 (2015) 249 IR 420; [2015] NSWIRComm 8 ("the Working with Children Case") the Full Bench succinctly stated the principles to apply in matters such as the present one, as follows: "23. As the respondent submitted, in Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311, a Full Bench of the Commission, having referred to the approach in Nagle v Tilburg (1993) 51 IR 8 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, observed at 319: 'Thus, for the Commission to grant a motion seeking the preliminary dismissal of an application for an award for want of jurisdiction, the Commission would need to be satisfied that no relevant award or order could be made in the circumstances of the case. To paraphrase the approach in General Steel, there must be 'no possibility that there can be a good cause of action'. This is the criterion which must be satisfied for a motion seeking the preliminary dismissal of an application for want of jurisdiction to succeed. 24. That statement of the law needs no additional gloss."
Whether or not the Commission has jurisdiction in a particular matter is a conclusion which is to be formed at the ordinary level of persuasion, not at any heightened level of certainty: Unuafe v Commissioner of Police [2015] NSWIRComm 1007 at [11].

Grounds relied on by the APA

As the Motion itself makes clear, the primary contention by the APA is that the Commission does not have power to make the variation sought in the Ministry Application. This is said to be the case for two reasons: 1. the variation would be inconsistent with cl 6(1)(d) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) ("Regulation"); and 2. the variation would be inconsistent with the no extra claims commitment contained in cl 46 of the Award.
I will deal with each of these arguments in turn.

Operation of Regulation

The Ministry Application is made under s 17 of the Act. That section is in these terms: 17 Variation or rescission of award (1) The Commission may vary or rescind an award. (2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied. (3) An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.
Section 146C of the Act relevantly provides as follows: 146C Commission to give effect to certain aspects of government policy on public sector employment (1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees: (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and (b) that applies to the matter to which the award or order relates. … (7) This section has effect despite section 10 or 146 or any other provision of this or any other Act.
The matters set out in the Regulation are declared, for the purposes of section 146C of the Act, to be aspects of government policy that are to be given effect to by the Commission when making or varying awards or orders: cl 4 of the Regulation.
Relevantly for present purposes, cl 6 of the Regulation provides as follows: 6 Other policies (1) The following policies are also declared, but are subject to compliance with the declared paramount policies: … (d) Awards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later time or allow extra claims to be made during the term of the award or order). However, this does not prevent variations made with the agreement of the relevant parties.
The gist of the APA's contention is that by virtue of s 146C of the Act, cl 6(1)(d) takes precedence over s 17, and has the effect of precluding extra claims being made during the term of the award or order. The APA submitted that: "7. The policy [contained in cl 6(1)(d)] is relevant and intractable in its terms that Awards are to resolve all issues the subject of the proceedings and not allow extra claims to be made during the term of the award or order."
The APA relied on Crown Employees Wages Staff (Rates of Pay) Award 2011 and others (2015) 249 IR 414; [2015] NSWIRComm 7 ("the Rates of Pay Case") and the Working with Children Case in support of the propositions that: 1. cl 6(1)(d) of the Regulation has the effect of placing constraints on the exercise by the Commission of the power conferred upon it by the Act, including under s 17; and 2. even in the absence of cl 6(1)(d), but consistent with it, a validly made award precludes any application in the nature of an extra claim for the term of the award. It will extinguish the capacity of any party to agitate the subject matter of that award during its term.
The Ministry contended, and I accept, that cl 6(1)(d) cannot be construed in such a way as to prohibit absolutely the Commission from exercising its power to vary an award under s 17 of the Act, other than with the agreement of the parties. This was made clear in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 at [65] - [67] (Bathurst CJ, with whom Emmett JA agreed at [131]) and [113] (Basten JA).
That said, Mr Latham submitted that the APA was not seeking a "blanket prohibition upon variation" but rather that "there is a mechanism to vary and that needs to be followed in the context of the Act". [2]
Equally, the Commission cannot proceed on the basis that its powers under s 17 are in no way affected or constrained by the Regulation. This seems to be the effect of the Ministry's submission that the policy in cl 6(1)(d) "is not inconsistent with the Commission's power to vary an award during its term in the exceptional circumstance identified in section 17(3), or otherwise with the parties' agreement". If accepted at face value this submission would, as the APA contended, "set the effect of Regulation 6 at nought".
It is necessary, therefore, to determine the meaning and effect of cl 6(1)(d). The principles of statutory interpretation are well-established. In this regard, and again for convenience, it is sufficient to refer to the comments of the Full Bench in the Rates of Pay Case as follows: "16. We see no reason to depart from or modify the relevant principles of statutory interpretation as the Commission expressed them in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Education and Communities [2013] NSWIRComm 32; (2013) 233 IR 345 at [24]. Without setting those paragraphs out again here, the critical proposition is this: the fundamental object of statutory construction is to ascertain legislative intention. This must be understood as the intention that the courts - and here the Commission - will impute to the legislature by a process of construction which focusses primarily upon the text of a provision."
Applying those principles, clause 6(1)(d) seeks to achieve resolution, for the life of the relevant award or order, of "all issues the subject of the proceedings". It does not permit an award to contain "leave reserved" provisions (which would be familiar to many industrial relations practitioners) or to allow for extra claims to be made during the term of the award.
The phrase "all issues the subject of the proceedings" is important. It qualifies the extent to which the Commission's jurisdiction under s 17 might be constrained by the Regulation. In particular, it informs the meaning of the words in parenthesis in cl 6(1)(d) - that is, what "matters" in relation to which leave cannot be reserved, and what "extra claims" cannot be allowed by the award. They are, respectively, matters which were the subject of the proceedings, or extra claims in relation to matters which were the subject of the proceedings.
In coming to this view I have had regard to the Working with Children Case, in which the Full Bench was considering an application for a new award under which workers under numerous awards would become entitled to reimbursement of monies paid to obtain a "working with children clearance". The Full Bench granted a motion to summarily dismiss the application. In the course of doing so the Full Bench held as follows: "13. All the awards potentially affected by the present application have been varied within the last 12 months in relation to remuneration and allowances. In those variations the issue of allowances was addressed. There is no assertion that any of the awards were not validly made. Accordingly, the subject matter of, specifically, remuneration and allowances has been extinguished in relation to each of those awards for the present time. 14. Unions NSW, in opposing the application, submitted that the direction to the Commission imposed by clause 6(1)(d), that is, that an award is to 'resolve all issues subject of the proceedings', could not be construed as directing the Commission to resolve all issues relating to an employee or group of employees whether the subject of proceedings before it or not. 15. That submission misses both the words of the Regulation and the factual situation here. The Regulation relevantly prescribes that an award must resolve all issues which were the subject of the proceedings giving rise to the award. In so prescribing, it does not address, as Unions NSW submitted, matters which were not the subject of the proceedings. Secondly, in the factual circumstances of this application, its subject matter - wages and allowances - was very much the subject matter of the proceedings giving rise to the awards which would be affected by the present application. … 20. Here, however, s 146C of the Act and the words of the Regulation impose in clear terms a limitation on the Commission's powers: Secretary of the Treasury v PSA at [44]. That clear statutory and regulatory limitation must be given effect to. The construction of the Regulation we here adopt does not, contrary to Unions NSW's submission, impose a greater constraint on the Commission's jurisdiction than is expressly required by the language of the Regulation." (Emphasis added)
Adopting the reasoning of the Full Bench, in my view the effect of ss 146C(1) and (7) of the Act, coupled with cl 6(1)(d) of the Regulation, is that the Commission cannot use its power to vary an award under s 17(3) if to do so would allow a party, without the agreement of the other party, to benefit from making an extra claim in respect of the subject of the proceedings giving rise to the award. That is the extent of the constraint on s 17(3) that arises from cl 6(1)(d). The Commission's powers to vary awards under that subsection in respect of matters that were not "the subject of the proceedings" are not affected.
There was little attention given to this issue in the proceedings before me. The APA's submissions seemed largely to assume that the Ministry Application comprised an "extra claim" of the kind proscribed by cl 6(1)(d). The Ministry's submissions were confined to the assertion that "the Ministry's application does not seek to 'agitate the subject matter of the award' in the sense described in [Working with Children], because it does not seek to vary the terms or conditions of employment for any existing employee".
There is no evidence before me that the classification structure of the Award, and in particular the creation of a new classification for Non-Paramedic DOCOs, was the subject of the proceedings giving rise to the Award. It follows that there is no basis on which I could conclude that the Ministry Application would amount to an "extra claim" within the meaning of cl 6(1)(d).
Further, for the reasons set out below, I am also not satisfied on the material before me that the Ministry Application would result in a variation to the terms or conditions of employment for any employee to whom the Award already applies. Rather, it would (if successful) create a new classification and so bind a new category of employees to the Award for the first time. It is difficult to comprehend how extending the coverage of the Award to employees to whom it currently does not apply could be said to be "the subject of the proceedings giving rise to the Award".
In conclusion, I find that the Ministry Application is not inconsistent with cl 6(1)(d) of the Regulation. On that ground the Motion cannot succeed.

No extra claims provision

The Award contains a "no extra claims" provision in the following terms: "46. Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2019 by a party to this Award."
The APA contends that this clause operates so as to deprive the Commission of the power to make the variation sought by the Ministry Application.
During the hearing Mr Latham referred me to a number of authorities in which the Commission expressed its view as to the significance of no extra claims commitments and the importance of holding parties to their undertakings in that regard. It is not necessary to traverse those authorities in detail. I am in broad agreement with the principle that parties should not lightly be allowed to step around a no extra claims clause.
However, the existence of a no extra claims clause does not of itself preclude an award being varied under s 17. That would be a factor, and could well be a determining factor, in the Commission's consideration under s 17(3) as to whether the variation is in the public interest, or whether there is a substantial reason to order the variation: see Roads and Maritime Services Division of the Government Service of New South Wales - Consolidated Salaried Employees Award 2013 (No 2) [2014] NSWIRComm 32 at [34] and Rail, Tram and Bus Union of New South Wales & ors v Secretary for Transport [2017] NSWIRComm 1032 at [27] and [31].
It follows, as stated in RTBU v Secretary for Transport at [16] - [18], that a no extra claims clause is not of itself a jurisdictional barrier to varying an award under s 17.
This would be enough to dispose of the Motion, to the extent that it is submitted that the Commission "does not have power" to make a variation to the Award due to cl 46 of the Award. The power exists. Whether that jurisdiction would be exercised is a separate question.
That question must, in the context of the Motion, lead to an examination as to whether, due to the existence of the no extra claims clause, there is "no possibility that there can be a good cause of action", having regard to the authorities referred to at [14] above. I observe that the APA did not put the submission quite as squarely as that.
This requires a consideration of the terms of cl 46 of the Award. In construing the clause I will apply the principles set out by Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 41, as applied by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] 247 IR 129 at [26] - [31]. It is not necessary to reproduce those passages here.
During the hearing I had the following exchange with Mr Latham: [3] "LATHAM: … But what the Commission really has to do is determine whether a particular claim is made and then whether that particular claim is either prohibited or prohibited by the clause itself. And just finally at para 16-- COMMISSIONER: Just on that point, isn't that fundamental really to all the cases that you've put? LATHAM: Correct. COMMISSIONER: Whether it was Wright J, Commissioner [Newall], all of those decisions turned on really what was the undertaking given in the no extra claims clause and did the claim fall foul of that undertaking. So this case really centres, I think you've made this point, on how is the no extra claims commitment to be construed and how is the substantive application before the Commission to be viewed in light of that commitment. LATHAM: I think that's correct, and I don't think anybody could dispute any of that conclusion. …"
Turning to cl 46 of the Award, there are two points to note. Firstly, it opens with the words "Other than as provided for…". On its terms the clause allows for claims to be made "as provided for" in the Act and Regulation. The opening words are properly to be construed as meaning that, other than to the extent that the power might be constrained by the Regulation, the Commission's power under the Act to vary the Award is not intended to be excluded by the clause.
While the Commission would still need to be satisfied that the variation meets the requirements of s 17(3), it would not necessarily be the case, as it was in RTBU v Secretary for Transport, that the existence of the no extra claims clause would argue strongly against the variation being in the public interest. Rather, cl 46 seems to preserve the Commission's jurisdiction. Provided that the conditions in s 17(3) are met, and subject to any constraints arising from the Regulation, the clause does not preclude extra claims being made.
The second feature to observe about cl 46 is that it is confined to claims "with respect to the employees covered by the Award". The APA submitted as follows: "17. The no extra claims clause manifestly applies to the claim being made. It is a claim instituted before the Industrial Relations Commission of New South Wales for reduced salaries, and allowances with respect to Duty Operations Centre Officers who are covered by the Award."
During the hearing Mr Latham made these submissions: [4] "The substantive application here manifestly relates to the position of doco that is clearly covered by the Award. There are people who currently sit in those positions as qualified paramedics and the effect of the application will be that in relation to a number of those positions that their salary will be reduced if the application is upheld. The mandatory qualifications for those positions will be withdrawn and we will have a situation where if the no extra claims clause is read broadly and say the discussion in those cases talks about where that will have an impact upon people who are currently covered by this Award."
In contrast the Ministry's submissions contended as follows: "28. The effect of the variation it seeks is to introduce a new classification of employees that would not otherwise be covered by the Award. It does not seek to vary the wages, salaries, rates of pay, allowances or conditions of employment for any existing classification under the Award. … 35. This is not a case in which the Ministry is seeking to increase or decrease the terms and conditions of employment set out in the Award. It is seeking a practical industrial solution in light of operational difficulties, without detracting from the position of any existing employee."
The HSU's submissions contended as follows: "18. In present circumstances there is a class of employees who are working in the absence of any award coverage. It cannot be that a NECC [no extra claims clause] extends to preventing an award being made that covers a class of employees who are not subject to the award containing the NECC. The logical basis for the making of a new award should be extended to the amending of an existing award. A plain reading of the clause supports this view. 19. These employees have not been the subject of any proceedings. It might be said that the issues of 'classifications, wages, etc.' were 'subject of proceedings'; however, it cannot be said that the 'classification, wages, etc.' of a class of employees who are not covered by an award can be so restricted. 20. It would not be satisfactory to create a new position at a different rate of pay that might be used to migrate certain employees already covered by a validly made award to the new classification. There is no scope for that in the present circumstances. 21. It is unsatisfactory to have these employees precariously employed. The Commission should intervene to the greatest extent possible to resolve that issue."
As I comprehend it, and on the balance of the evidence before me, there is nothing in the Ministry Application which would affect the terms and conditions for DOCOs who have paramedic qualifications. They will remain subject to the same terms and conditions that presently apply to their employment. Nothing in the Ministry Application requires any of those employees to relinquish their paramedic qualifications and become a Non-Paramedic DOCO.
Rather, the Ministry Application seeks to create a new classification, with consequential rates of pay and related conditions, for Non-Paramedic DOCOs. Again, on the evidence before me the employees to whom those terms would apply are not presently covered by the Award.
It follows that cl 46 does not on its terms preclude the Ministry Application.
For these reasons, I find that cl 46 does not provide a basis on which I could find that there is "no possibility that there can be a good cause of action" in respect of the Ministry Application.

Other grounds relied on

In addition to the matters canvassed above, each of the Ministry and HSU raised additional and alternative grounds on which they contended that the Motion should not succeed. In light of the findings I have made above, it is not necessary to address those arguments.

HSU Application

I observe, if only for the sake of completeness, that on 20 February 2019 the HSU filed with the Registry its own application for a variation to the Award ("HSU Application"). The HSU Application seeks to create two DOCO "streams" - "Duty Operations Centre Officer (Paramedic)" and "Duty Operations Centre Officer (Non-Paramedic)" - and provide for rates of pay for the proposed DOCO (Non-Paramedic) classification. The HSU Application also seeks an allowance to be paid to DOCOs (Paramedic) above their current rates of pay.
I do not propose to offer comment on the HSU Application or explore the extent to which it might offend either cl 6(1)(d) of the Regulation or cl 46 of the Award. The APA made no submissions in relation to the HSU Application. No application has been made by the APA or the Ministry to have the HSU Application dismissed.
Further, in practical terms any analysis of the HSU Application in light of the Regulation or cl 46 (and, it must be said, the foregoing discussion regarding the Ministry Application) would likely end up as being largely academic. Clause 47(c) of the Award provides that it will take effect from 1 July 2018 and remain in force for a period of one year. It seemed to be common ground that neither the Regulation nor the no extra claims clause of the Award would provide any impediment to a party pressing an extra claim after the expiry of the nominal term of the Award. That is, on and after 1 July 2019 there will be no restriction on the Commission hearing and determining both the Ministry Application and the HSU Application.

Conclusions

For the reasons set out above, I do not accept the APA's contentions, as set out in the Motion, that the Commission does not have power to make the variation sought in the Ministry Application on the basis that: 1. the variation would be inconsistent with cl 6(1)(d) of the Regulation; and/or 2. the variation would be inconsistent with the no extra claims commitment contained in cl 46 of the Award.
The APA has not otherwise provided a sufficient basis on which the proceedings should be dismissed, having regard to the authority referred to at [14] above.

Order

The notice of motion is dismissed. Damian Sloan Commissioner

Endnotes

Tcpt p 16 (44-46)
Tcpt p 25 (39-40)
Tcpt pp 12 (32) - 13 (2)
Tcpt p 10 (19-26) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2019

Industrial Relations (Public Sector Conditions of Employment) Regulation 2014(NSW)cl 6(1)(d)

Industrial Relations Act 1996(NSW)ss 17, 130, 135

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