Public Health System Nurses' and Midwives' (State) Award 2023 [2025] NSWIRComm 30 (15 October 2025)

1. The Health Secretary and New South Wales Nurses and Midwives' Association (Association) are currently before a Full Bench of the Commission in an arbitration hearing to make two new Awards, namely the Public Health System Nurses' and Midwives' (State) Award 2024 and the Crown Employees Nurses' (State) Award 2024.
2. Leading up to the arbitration, the Health Secretary agreed to certain claims of the Association that were described as "non cost" award changes. On 4 September 2025 the parties reached agreement as to three further changes to the awards. The first change is a 3% interim increase in salaries and salary related allowances from 1 July 2025 whilst the balance of the parties' award claims are being determined through arbitration. Second, the Association's claim for an increase in the night shift penalties was settled by an agreed increase from 15% to 20%, avoiding the need for that issue to be determined in the current proceedings. Third, additional entitlements for union officials to undertake certain union functions during work time have been agreed.
3. The applications to vary the Awards by consent were filed by the Health Secretary on 8 October 2025 and give effect to the parties' agreement on those issues.
4. The applications to vary the Awards are accompanied by an affidavit affirmed on 8 October 2025 by Ms Elizabeth Allen, the Director of Industrial Relations and Management, Workplace Relations at the NSW Ministry of Health who provides the following evidence as to the specific changes to the PHS Award:

"a. Insertion of a new subclause (e) to Clause 4(xiv), which provides conditions around the rostering of night duty prior to the day that annual leave commences;

b. Amendment to existing Clause 4(xvi) to provide additional conditions around the rostering of consecutive days off.

c. Amendment to existing Clause 8(iii) to provide an additional condition that should be met prior to a roster being changed;

d. Amendment to existing Clause 15(i) with text providing for an increase in the night duty penalty rate from 15% to 20% effective from the first full pay period commencing on or after 1 July 2025;

e. Amendments to the wording in Clause 54. A. prior to the conditions in subclauses (i)-(vi) to provide that subclause (vi) will not have effect prior to the date of the roster publish on or after 1 November 2025 and do not apply to any roster published prior to 1 November 2025;

f. Amendment to existing Clause 54. A. (v) to provide enhanced provisions and circumstances in relation to union presentations at staff induction sections.

g. Amendment to existing clause 54. A. (vi) to provide enhanced provision of rostered time for elected Association Officials for the purposes of distributing official association publications and holding discussions with employees in the workplace; and

h. Amendment to existing Clause 54. F. (ii) to provide provisions around the display of union noticeboards in the workplace."

1. She deposed that the proposed variations to the Crown Award are:

(1) a 3% increase in salaries and salary related allowances for all employees covered by the Crown Award, effective from 1 July 2025, and

(2) an amendment to cl 6(b)(i) to increase the night shift penalty to 20%.

1. In light of the evidence, I determine that it is appropriate to approve the consent application and to vary the Awards pursuant to s 17 of the Industrial Relations Act 1996 (NSW) (Act) in the terms sought, on the basis that the varied Awards will set fair and reasonable conditions of employment on an interim basis.
2. Ms Allen deposed that the varied Awards provide for equal rates of pay and allowances, eligibility criteria for employment, duties, and conditions of employment for men and women under each job classification, evidence I rely on in respect of the matters required to be considered under s 23 of the Act.
3. I am also satisfied that it is in the public interest to vary the Awards, having regard to the objects of the Act. The agreed salary increase is made by way of a variation to the Awards in circumstances where the Full Bench is considering whether there ought to be further changes in remuneration and other conditions, and on the agreed basis that the Association can continue to press its case in that regard. In circumstances where the current case is not expected to be finalised before early 2026, it is appropriate that there be an interim increase in the meantime and, relying on the consent of the parties, I am satisfied that it is appropriate for the interim increase to be 3%.
4. I note that the salary increase to the Awards is in the amount budgeted by the NSW Government. Accordingly, I accept Ms Allen's evidence that she does not expect the Awards as varied to adversely affect the fiscal position or outlook of the NSW Government nor the NSW economy, notwithstanding the quantum of the increased expenditure.
5. As the variations to the Awards are made by consent and are sought in the context of an industrial dispute notified to the Commission prior to 1 July 2025, they may apply retrospectively pursuant to s 15(3) of the Act.

(1) Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Awards are to be varied in the terms set out in Schedule 1 of both applications filed by the Health Secretary on 23 October 2025, with specific clauses taking effect on the different operative dates as particularised in the Health Secretary's application and set out in the relevant award clauses.

24 October 2025 - Order 1 amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule) and r 9.4 of the Industrial Relations Commission Rules 2022, due to the parties jointly informing the Commission of unintended errors, including calculation errors, in the application filed by the Health Secretary on 8 October 2025 which were corrected in the Awards sent to my chambers on 23 October 2025. Corrections were made to:

(a) the rates of expense-related allowances at items 10-17 of Table 2 in the PHS Award,

(b) the salary rate for the classification 'Registered Nurse/Midwife' in their sixth year of service in the Crown Award, and

(c) references to case numbers in the tables atop the first page of both the PHS Award and Crown Award.

24 October 2025 - Order 1 at [12] updated to accord with the amendment to cover sheet.