Paramedics and Control Centre Officers (State) Award (Clarification of Orders) [2021] NSWIRComm 1050

Industrial Relations Commission (NSW)|2021-06-30

decision

On 3 May 2021 the Full Bench handed down its decision in Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 ("Decision"). The Decision determined applications which had been made for increases to the salaries and salary-related allowances in the two awards referred to in the title of the Decision.
In respect of the Paramedics and Control Centre Officers (State) Award ("Paramedics Award"), the Full Bench made the following orders: "319. The Commission orders that: … (2) there be a 0.3% increase to the salaries and salary-related allowances in the Paramedics and Control Centre Officers (State) Award, with such increase to take effect from the first full pay period on or after 1 July 2020; and (3) employees covered by the Paramedics and Control Centre Officers (State) Award receive a payment equal to the difference between $1,000 and 0.3% of their annual base salary under that Award at the rate immediately prior to the increase required by Order (2), such payment to be made within 28 days."
The parties disagree as to the effect of the order contained at [319(3)] of the Decision ("Order (3)"), and in particular to whom and on what basis the payment required by Order (3) ("Payment") is to be paid. The disagreement centres on three questions: 1. whether the Payment is confined to persons employed under the Paramedics Award as at the date the order was made, namely 3 May 2021, or is payable to any such persons employed in the financial year commencing 1 July 2020; 2. whether the Payment is to be pro-rated for part-time and casual employees; and 3. whether Patient Transport Officers ("PTOs") have an entitlement to the Payment.
Each of the Australian Paramedics Association (NSW) ("APA"), the Health Secretary and the Health Services Union New South Wales ("HSU") filed written submissions on these questions, on the basis that the Full Bench would determine them "on the papers". We do not propose to summarise exhaustively the submissions received. Suffice it to say, they have been carefully considered.

Entitlement

The Health Secretary contends that only persons employed under the Paramedics Award as at the date of the Decision are eligible for the Payment. The APA and the HSU argue that it is payable to all persons employed in the financial year commencing 1 July 2020.
In the Decision, the Full Bench found that: 1. the APA had made out a case attracting the special case sub-principle of the Commission's Wage Fixing Principles. This was predominantly as a consequence of the impact on paramedics and control centre officers ("PCCOs") of the widespread bushfires in NSW in 2019 and 2020, and the COVID-19 pandemic: see [197]-[221]; and 2. there were exceptional circumstances, within the meaning of cl 6.2 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW), warranting the back-dating of wage increases to 1 July 2020: at [318].
As the APA submitted in respect of the current proceedings: [1] "7. The decision deals with the Bushfires which concluded well before 1 July 2020, and the Pandemic, which had its most transformative and dangerous impact on PCCO work before 1 July 2020. In reality, any PCCO employed in the relevant period would have experienced the Pandemic conditions at least, and while extreme hypothetical examples can be introduced to make an argument as to unfairness, the Commission would be better guided by a principle of paying persons who performed the work the subject of the special case."
We accept these submissions. It was not the intention of the Full Bench to limit the Payment to employees engaged as at the date of the Decision.
At the same time, the arguments advanced by the APA do not support the Payment being made to all persons employed under the Paramedics Award at any time between 1 July 2020 and 30 June 2021. The circumstances giving rise to the special case, and for which the Payment (coupled with the 0.3% increase to salaries and salary-related allowances) was intended to compensate, largely pre-date 1 July 2020. Consistent with the increase being payable from 1 July 2020, the Payment should only be made to persons employed under the Paramedics Award as at that date.

Part-time and casual employees

The APA and the HSU contend that all employees under the Paramedics Award are entitled to receive the Payment in full. The Health Secretary argues that the Payment ought to be paid pro rata for employees who work less than full time hours (defined in cl 20(b) of the Paramedics Award to be an average of 38 hours per week).
We agree with the Health Secretary. Making the Payment pro rata for part-time employees is consistent with the terms of the Paramedics Award: see cll 9(e)(v) and (vii), 32(A)(a)(ii), 32(B)(a)(ii) and 32(C)(a)(ii). It is also consistent with s 79(2) of the Industrial Relations Act 1996 (NSW). To adopt the language of cl 9(e)(vii), the Payment should be made to part-time employees in the same proportion as their actual hours of work bear to full-time hours.
The Payment should be made on the same basis to temporary and casual employees within the meaning of cll 9(f) and 9(g) of the Paramedics Award respectively. To avoid concerns as to a casual employee's usual hours of work, the Payment should be based on the average hours in each week worked by the employee in the three month period prior to 1 July 2020.

Patient Transport Officers

At no stage during the proceedings resulting in the Decision did the APA or HSU adduce any evidence regarding PTOs, or contend that any orders made by the Full Bench ought to extend to them. PTOs were simply not mentioned in the proceedings. They were not contemplated in the orders which the Full Bench made. The Payment need not be made to PTOs.
While this disposes of the question, to address some of the arguments advanced by the parties we observe that Order (3) is expressly limited in its application to "employees covered by the Paramedics and Control Centre Officers (State) Award". On its terms the Paramedics Award applies to employees "in the Ambulance Service of New South Wales": see cll 4 (Definitions) and 47 (Area, Incidence and Duration). While the Paramedics Award contains classifications of "Patient Transport Officer" and "Trainee Patient Transport Officer", the Health Secretary submitted that NSW Ambulance has not employed people in these classifications since approximately 15 February 2016.
There is no controversy that on or about that date, PTOs who were then employed by NSW Ambulance "transferred" to NSW HealthShare. A determination was made by the Health Secretary (through her delegate) on 1 February 2016 pursuant to s 116A(1) of the Health Services Act 1997 (NSW), providing that following the transfer PTOs would be "regarded as being covered by the Health Employees Conditions of Employment (State) Award". However, the terms of the predecessor to the Paramedics Award "as relevant to NSWA PTOs as at 14 February 2016" were to be "grandparented for transitioning staff". The transitioning staff were also to be paid increases in the quantum of allowances payable under that Award.
Relying on these arrangements, the APA submitted that PTOs who transferred to NSW HealthShare remain "covered" by the Paramedics Award. This is incorrect. While certain entitlements may be determined by reference to the Paramedics Award, PTOs who are not employed in NSW Ambulance are not to be regarded as covered by it.

Orders

The Commission may, at any time, correct any order or award for the purpose of carrying out its intention or to express its meaning more accurately: r 2.5(e) of the Industrial Relations Commission Rules 2009. For the reasons set out above, such a correction is warranted in respect of Order (3).
Order (3) is corrected to read as follows: (3) employees covered by the Paramedics and Control Centre Officers (State) Award who were employed by the Health Secretary as at 1 July 2020 receive a payment equal to the difference between $1,000 and 0.3% of their annual base salary under that Award at the rate immediately prior to the increase required by Order (2), provided that: (a) the payment must be made to full-time, part-time, temporary and casual employees, as defined under the Award; (b) the payment must be made to part-time and casual employees in the same proportion as their actual hours of work bear to full-time hours; (c) a casual employee's actual hours of work will be the average hours in each week worked by the employee in the three month period prior to 1 July 2020; and (d) the payment is to be made within 28 days of this decision.

Endnote

Applicant's Submissions in Reply re Short Minutes of Order

Amendments 30 June 2021 - inserted footnote 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: 30 June 2021

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

At a glance

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Judgment (7 paragraphs)

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