State of New South Wales v Chapman-Davis - [2016] NSWCA 237 - NSWCA 2016 case summary — Zoe

NSWNSWCA

State of New South Wales v Chapman-Davis

[2016] NSWCA 237

Court of Appeal (NSW)|2016-04-04|Before: McColl JA, Gleeson JA

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2016-04-04

Before

McColl JA, Gleeson JA

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

SWCA 250 Deal v Kodakkathanath [2016] HCA 31 Eaton v Overland [2001] FCA 1834 Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55 Military Rehabilitation and Compensation Commission v May [2016] HCA 19 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Provisional Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 Re Pacific Coal Pty Limited; Ex parte: Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34 TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409 Texts Cited: CJG Sampford, Retrospectivity and the Rule of Law, (Oxford University Press, 2006) Category: Principal judgment Parties: State of New South Wales (First Applicant) QBE Insurance (Australia) Limited as agent for NSW Self Insurance Corporation (Second Applicant) Lorelle Chapman-Davis (Respondent) Representation: Counsel: A R Moses SC/ Y Shariff/ J D Alderson (Applicants) N J Williams SC/ T M Ower (Respondent)

[2]

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 25 July 2011, the respondent, Ms Chapman-Davis, who was employed in the Ambulance Service of New South Wales, sustained a workplace injury. The first applicant, the State of NSW, was the respondent's employer. The second applicant was the agent for the State's insurer and paid workers compensation to the respondent but, on 30 September 2013, informed her that her entitlements would cease on 31 December 2013 due to changes to the Workers Compensation Act 1987 (NSW) affecting the amount and duration of payments for medical and related expenses. The respondent argued that she was exempted from those changes by a savings provision in the Workers Compensation Act 1987 (NSW) Sch 6 Pt 19H cl 25 as introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) Sch 12. Cl 25 provided that "the amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter". The respondent had worked as an ambulance officer since September 2000 and been classified as a 'paramedic' since 12 September 2008 under the applicable Operational Ambulance Officers' (State) Awards. Just eight days prior to her injury, the respondent had commenced a 12-month secondment as a Health Advisor at the Health Access Coordination Unit within the Ambulance Service. It was common ground that the duties of a Health Advisor were different to those of a paramedic. Proceedings for declaratory relief in the Industrial Court turned on interpretation of cl 25's exemption. The primary judge found (in favour of the respondent) that at the time of her injury: she was employed within the service of the Ambulance Service NSW as a paramedic and the position she occupied satisfied the Award's definition of 'paramedic'; the terms and conditions which applied to a paramedic in that Award were superimposed onto her contract of employment; and her contract of employment, and her consequential classification as a 'paramedic', represented her substantive position and subsisted during her secondment to the role of Health Advisor (regardless of the duties she performed in that role). The applicants sought leave to appeal, challenging the Industrial Court's findings and declaration that the respondent was a paramedic within the meaning and for the purposes of the Workers Compensation Act 1987 (NSW) Sch 6 Pt 19H cl 25. The principal issues included: i. whether or not the respondent's duties as a Health Advisor fell within the ordinary meaning of the word 'paramedic'; ii. whether it was relevant that at the time of the injury, as the primary judge found, the respondent was seconded to the position of Health Advisor and her "substantive position" was that of a paramedic; and iii. whether, to be eligible for the exemption, an employee must be required to perform work which satisfies the classifications that are contained within the Award and, accordingly, whether or not the position of Health Advisor was an "approved paramedic position" within the meaning of the definition of 'paramedic' in cl 5. In granting leave to appeal and dismissing the appeal, the Court (per Gleeson JA, McColl JA and Sackville AJA agreeing) held In relation to (1): i. There are limitations on the use of dictionary definitions in statutory construction. It was unnecessary to resort to dictionary definitions to identify the meaning of the word 'paramedic' because it was not in dispute that the respondent's position as Health Advisor did not answer the statutory description of a 'paramedic': [62]-[63] Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409; TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68, referred to. In relation to (2): i. Questions of statutory construction are determined by reference to the text, context and purpose of the relevant Act: [67] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, referred to. ii. Nothing in the language of the exemption, or the Workers Compensation Act 1987 (NSW) as a whole, supports reading words of limitation into the concession afforded by the exemption, so as to confine the exemption to circumstances where the nominated class of worker is performing operational or "frontline" duties. The focus of the exemption was the particular designation or status of the worker, rather than certain characteristics or functional aspects of a person's work: [71] In addition (per Gleeson and McColl JJA agreeing) iii. To place a functional qualification on the exemption, which is broad and unqualified by the particular duties required to engage the exemption, would be inconsistent with the beneficial nature of the exemption: [78]-[79] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250; Bird v The Commonwealth [1988] HCA 23; 165 CLR 1; Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622; IW v City of Perth [1997] HCA 30; 191 CLR 1, referred to. In relation to (3): Per Gleeson JA (McColl JA and Sackville AJA agreeing) i. The 2010 Award applied to the respondent's temporary position as Health Advisor not by virtue of the classifications in the 2010 Award, but because the terms of the contract of secondment expressly provided for that Award to apply to that seconded position. Notwithstanding her secondment to the temporary position of Health Advisor, the respondent maintained her appointment to a position classified as a 'paramedic' caught by the 2010 Award because, as the primary judge found, her contract of employment as a paramedic subsisted during her secondment and this was an important feature of the secondment arrangement: [65]-[66] Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410, Re Pacific Coal Pty Limited; Ex parte: Construction, Forestry, Mining and Energy Union [2000] HCA 34; 203 CLR 346, referred to. ii. There is a distinction between the "position" occupied by an employee and the "status" that the employee has pursuant to contractual terms governing the relationship between the employer and the employee. Here, the respondent's appointment to the position of Health Advisor did not change her status pursuant to her contract of employment as a paramedic: [91]-[94] iii. That the respondent was not performing "occasional" operational duties as a paramedic at the time of her injury says nothing about her status as a paramedic whilst temporarily seconded to the position of Health Advisor. Since the respondent's designation as a 'paramedic' was unaffected by her temporary secondment to a different position, the respondent answered the statutory description (contained within the exemption) of a person who at the time of receipt of her injury was a 'paramedic': [96]-[97] Per Sackville AJA iv. If a paramedic is temporarily seconded to another position, but retains her employment classification and status as a paramedic, as a matter of ordinary English she is aptly described as a "paramedic". There is nothing in the text of cl 25 or in the amending legislation that provides a sound basis for reading the provision otherwise than in accordance with its ordinary meaning. It is not necessary to characterise cl 25 as "beneficial legislation" in order to conclude that the respondent is within the exemption: [102] - [104] Deal v Kodakkathanath [2016] HCA 31; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1, referred to.

[4]

Judgment

McCOLL JA: I agree with Gleeson JA's reasons and the orders his Honour proposes.
GLEESON JA: On 25 July 2011, the respondent, Ms Lorelle Chapman-Davis, sustained a workplace injury whilst employed in the Ambulance Service of New South Wales (the Ambulance Service). She suffered a back injury and underwent spinal surgery later in 2011. The first applicant, the State of New South Wales (the State) is the respondent's employer. The second applicant, QBE Insurance (Australia) Limited (the insurer), an agent for NSW Self-Insurance Corporation, is the relevant workers compensation insurer. Liability was accepted for the respondent's injury and she was paid workers compensation pursuant to the Workers Compensation Act 1987 (NSW) (WC Act).
On 30 September 2013, the insurer informed the respondent that, as a result of legislative changes to the workers compensation scheme in June 2012, her ongoing entitlement to claim medical expenses would cease on 31 December 2013.
The changes to the WC Act referred to in the insurer's letter were introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) (2012 Amendment Act) which came into force on 27 June 2012, generally with retrospective operation: see cl 3 in Pt 19H of Sch 6 of the WC Act. Those changes affected, among other payments, the amount and duration of entitlements for some injured workers including medical and related expenses. However, police officers, paramedics and firefighters were exempted from the application of the 2012 Amendment Act by cl 25 in Pt 19H of Sch 6 of the WC Act (the exemption), which was inserted into the WC Act by Sch 12 of the 2012 Amendment Act, entitled "Amendments relating to savings and transitional provisions".
The exemption is in the following terms: 25 Police officers, paramedics and firefighters The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.
Prior to 18 July 2011, the respondent was employed as a 'paramedic' within the Ambulance Service. On that date she was seconded to the position of Health Advisor within the Ambulance Service. The seconded position involved duties different to those performed by a 'paramedic', however, it was common ground that the respondent's contract of employment, under which she was classified as a paramedic, subsisted during her secondment.
The Industrial Court found that at the time of her injury, the respondent was a 'paramedic' within the meaning and for the purposes of cl 25 of Pt 19H of Sch 6 of the WC Act: Chapman-Davis v State of New South Wales [2015] NSWIC 10 (Walton P). Subsequently, on 1 October 2015, the Industrial Court made a declaration to this effect and ordered the State and the insurer to pay 80 percent of her costs, as agreed or assessed: Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13. The consequence of that declaration is that the respondent is exempt from the application of the changes to the workers compensation scheme, introduced by the 2012 Amendment Act.
The applicants seek leave to appeal to challenge that declaration and costs order. Before turning to the issues, it is convenient to first identify the nature of the case raised by the proposed appeal.

[6]

Leave to appeal

An appeal from the Industrial Court of New South Wales, formerly known as the Commission in Court Session (Industrial Relations Act 1996 (NSW) (Industrial Relations Act) s 151A), is assigned to this Court under s 48(2)(f) of the Supreme Court Act 1970 (NSW): see s 48(1)(a)(ii). An appeal to this Court from the Industrial Court (other than by the Minister) requires a grant of leave to appeal: Industrial Relations Act s 403A and s 403B(1). The Court is to grant leave to appeal if, in its opinion, the matter is "of such importance that, in the public interest, leave should be granted": s 403B(2).
In The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446 at [2], Basten JA (Rothman J agreeing) held that in the absence of a compelling public interest, the Court has a discretionary power to grant leave to appeal, which should be exercised generally in accordance with established principles (see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39]), bearing in mind the special nature of the jurisdiction exercised by the Industrial Court under the Industrial Relations Act.
In the present case, evidence was adduced at trial of a practice within the Ambulance Service whereby paramedics undertake other duties involving non-frontline work, typically under a secondment arrangement, whilst remaining classified as a 'paramedic' under the relevant Award (relating to paramedics). Whilst the terms of a particular secondment arrangement may vary, the question of whether the respondent is properly characterised as a 'paramedic' whilst working on secondment to another position with different duties raises an issue of importance beyond the rights and obligations of the parties to the present proceedings. Accordingly, there should be a grant of leave to appeal.
It is convenient to refer to the applicants as the appellants. Unless otherwise stated, references to the primary judge's reasons are to his Honour's first judgment.

[7]

The facts

There is no dispute as to the background facts, or any challenge to his Honour's factual findings.
The respondent commenced employment with the Ambulance Service as an 'Ambulance Officer' in September 2000: at [70] and [73]. She progressed to the classification of Ambulance Officer Grade 2 under the Operational Ambulance Officers' (State) Award published in July 1998: at [59]. A further award was made in 2005. It is unnecessary to refer to the terms of the 1998 or 2005 Awards.
In 2008, the classification of the respondent's position was changed to 'paramedic' by the Operational Ambulance Officers' (State) Award issued on 2 October 2008, effective from 12 September 2008 (the 2008 Award) and the primary judge inferred that she transitioned to the classification 'Paramedic Year 2' from that date: at [62]. The 2008 Award was replaced by an award with the same title - the Operational Ambulance Officers' (State) Award issued on 24 December 2010 (the 2010 Award).
On 18 May 2011, the respondent applied for the position of Health Advisor at the Health Access Coordination Unit (HAC Unit) within the Ambulance Service. In her application, the respondent indicated that she was initially interested in a temporary part-time or full-time position "while still maintaining an Operational Paramedic role at other times, if mutually agreeable".
The position of Health Advisor primarily involved providing health care advice to, and/or timely referral (to other allied health services) of selected callers of the emergency telephone number, 000, who had been identified via telephone by the Control Centre as non-urgent, non-serious cases. It was common ground that this position involved different duties to that of a 'paramedic'.
The advertised selection criteria for the position of Health Advisor required "current ASNSW Intensive Care Paramedic qualifications and/or NSW (State) List A Registered Nurse qualifications with clinical experience". The respondent held the relevant registered nurse qualifications. The "position description" for Health Advisor identified the relevant "Award or Contract" as the "Operational Ambulance Officers' (State) Award [i.e. the 2010 Award] or NSW Public Health System Nurses' & Midwives' (State) Award". The stated "Classification" was "Intensive Care Paramedic (Ambulance Officer)/(Registered Nurse)".
The terms of the letter from the Ambulance Service to the respondent offering employment for the position of Health Advisor are important and included the following: I refer to your application for the above position and I am pleased to offer you a temporary part-time position of 48 hours per fortnight in the position of Health Advisor, Health Access Coordination Unit, Eveleigh, for the Ambulance Service of New South Wales. The conditions of employment for this position are embodied in the Operational Ambulance Officers (State) Award. The salary for this position has been determined as $41,375pa (.63 FTE Paramedic Specialist Year 1). The total salary package offered is $46,654pa, which includes salary, employer's contribution to superannuation and annual leave loading. Your commencement date in your new position has been determined as 18 July 2011.
On 18 July 2011, the respondent commenced in her new position as Health Advisor at the HAC Unit. As mentioned, she sustained a workplace injury shortly thereafter on 25 July 2011.

[10]

The 2012 amendments to the workers compensation scheme

On 13 June 2012, the Joint Select Committee on the NSW Workers Compensation Scheme delivered its report recommending certain changes to the existing compensation scheme. Recommendation 3 was that the NSW Government abolish journey claims under the workers compensation scheme, except in relation to police officers: Joint Select Committee on the NSW Workers Compensation Scheme, Parliament of New South Wales, Report (2012), p 58.
The Workers Compensation Legislation Amendment Bill 2012 (NSW) (the 2012 Amendment Bill) as originally drafted adopted this recommendation in relation to changes to compensation for journey claims and went further by exempting police officers from all proposed changes to the workers compensation scheme, including amendments to lump sum compensation and medical and related expenses.
However, the 2012 Amendment Bill was amended by the Legislative Council on 21 June 2012 in a number of respects, including that paramedics and firefighters, in addition to police officers, be exempted from the changes to the workers compensation scheme. This amendment, which became cl 25 in Sch 12 of the 2012 Amendment Bill, was initially opposed by the Government in the Legislative Council: Hansard, Legislative Council, 21 June 2012, pp 13,456-13,457. Subsequently, later on 21 June 2012, the Government accepted this amendment, among others, in the Legislative Assembly: Hansard, Legislative Assembly, 21 June 2012, pp 13,581 and 13,583.
The change which had particular relevance for the respondent was contained in Schedule 4 to the 2012 Amendment Act. This introduced, among others, s 59A(1)-(2) of the WC Act which provides that payment of an injured worker's expenses for medical, hospital and rehabilitation treatment and services is limited to treatment and services provided within 12 months after a claim for compensation was first made, or within 12 months after weekly payments ceased (whichever was the longer period), with an exception for injured workers with more than 30 percent whole person impairment.

[11]

Factual findings of the primary judge

The primary judge accepted (at [54]) the following five factual propositions, which he had earlier recorded (at [39]): (1) The [respondent] was employed by the first [appellant] within the service of the ASNSW as a paramedic. (2) The position that she occupied satisfied the definition of 'paramedic' under the Award. As such, the respondent was classified as a 'paramedic' for the purposes of the Award. (3) By the operation of the Award, the terms and conditions which applied to a paramedic in that instrument were superimposed onto her contract of employment. (4) The [respondents'] contract of employment, and her consequential classification as a 'paramedic', represented her substantive position and subsisted during her secondment to the role of Health Advisor (regardless of the duties she performed in that role). (5) Thus, at the time of her injury, the [respondent] continued to be appointed by the ASNSW to a position which was classified as a 'paramedic' under the Award and to satisfy the definition of the same.
In accepting the fourth proposition referred to above, his Honour noted (at [88(1)]) that no suggestion was made that the respondent's secondment to the role of Health Advisor departed from the broadly understood meaning of that expression, as a temporary transfer to another post or responsibility during which the terms on which the employees' substantive employment as contracted are maintained, referring to the discussion by Allsop J in Eaton v Overland [2001] FCA 1834 at [190]-[191]. His Honour found that the evidence confirmed that the arrangement by which the respondent undertook the role of Health Advisor conformed with that description. Among other matters, his Honour referred to the respondent's engagement under secondment being only for a temporary period (twelve months); the evidence of Mr Kruit (referred to above) that the respondent would maintain her clinical certificate to practice during that period; and the respondent's intention to undertake part-time operational paramedic duties whilst engaged as a Health Advisor.
His Honour found that the respondent's "contract of employment, under which she was appointed to a position classified as a 'paramedic' [under the 2010 Award], subsisted during the period that she was engaged as a Health Advisor": at [89].
In accepting the fifth proposition referred to above, his Honour found that the respondent's continued employment as a paramedic and the maintenance of such a position by the Ambulance Service during her secondment, meant that the 2010 Award could not be contracted out of, save for providing superior benefits to the respondent, and the State was thereby required to maintain her substantive classification as a 'paramedic' by the 2010 Award. Reference was made, among others, to Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 (Byrne v Australian Airlines) at 421.
The primary judge concluded (at [95]-[96]): [95] Thus, in my view, and in conformity with the first five propositions upon which the [respondent's] case was premised, the [respondent] was employed by the first respondent within the service of ASNSW. She satisfied the definition of paramedic under the Award and was, thereby, classified as the same. Her appointment and classification were not disturbed by her secondment as a Health Advisor (save that her paramedic sub-classification was as a 'Paramedic Specialist' rather than a 'Paramedic Year 2'). In that respect, the employment of the [respondent] was governed by the Award at the time of her injury and she was, thereby, classified as a 'paramedic' thereunder. [96] … it may be accepted, therefore, that at the time of her injury "the [respondent] continued to be employed by the first [appellant] as a 'paramedic'". That conclusion does not, however, necessarily resolve the ultimate issue in the present proceedings, namely, whether the [respondent] was a 'paramedic', within the meaning and for the purposes of the Schedule having regard to the manner in which the respondents framed their case.
Consistent with the respondent's concession that she was not an "operational paramedic" at the time of her injury, his Honour found that the respondent's position of Health Advisor involved duties different to those of an operational paramedic: at [99]-[100]. He held that, at the time of her injury, the respondent was an employee of the State who was appointed and classified as a 'paramedic' but who was seconded to perform work of a disparate nature which involved different skills and responsibilities to the operational duties performed by a paramedic in the service of the Ambulance Service: at [101].

[12]

Primary judge's reasons

Having found the facts as indicated above, the primary judge identified the issue for determination as whether the respondent was, at the time of her injury, a 'paramedic' within the meaning and for the purposes of the exemption by virtue of her employment and classification under the 2010 Award as a 'paramedic', notwithstanding that, at that time, she was seconded to the role of Health Advisor in which she neither discharged, nor was rostered to discharge the duties of an operational paramedic: at [102].
After referring to the principles of statutory construction (at [120]-[124]) and summarising the submissions of the parties (at [127]-[134]), the primary judge addressed the appellants' reliance on certain extrinsic materials. His Honour set out (at [128(4)]) the following statement, made by Mr Shoebridge MLC in support of the legislative change which was ultimately made to the 2012 Amendment Act immediately before its passage: These amendments will ensure that the protection from benefit cuts proposed by the Government to apply to police, Rural Fire Service and State Emergency Service workers will also apply to those other, much-prized emergency personnel, paramedics and firefighters. As the Government's bill is currently drafted, police have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with Rural Fire Service and State Emergency Service personnel - all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas - will not. Hansard, New South Wales Legislative Council, 21 June 2012 at p 13455).
His Honour was satisfied that it was permissible to have recourse to the extrinsic material pursuant to s 34(1)(a) of the Interpretation Act 1987 (NSW) as the material confirmed, in his view, that the meaning of the exemption is the ordinary meaning conveyed by the terms of the provision, albeit in a manner which differed from that contended for by the appellants: at [138]. His Honour held that Mr Shoebridge's comments cannot stand as a statement of meaning, referring to Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67 (Harrison v Melham) at 384 (Spigelman CJ), and continued (at [151]: … [Mr Shoebridge's] comments do not, therefore, disclose a particular view of the duties which all workers covered by the provision would perform or that the subject group of employees would only fall within the Schedule when performing certain emergency duties but, rather, that, as each class of worker may attend the same emergencies, it would be inappropriate for their workers compensation entitlements to be different.
His Honour observed that the dictionary definitions of 'paramedic' referred to by the appellants were of limited assistance: at [186]. Reference was made to the authorities warning of the limitations of dictionary definitions in statutory construction: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [25]-[30] (Mason P); Provisional Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560 (Mahoney JA).
His Honour then addressed the question of construction in some detail, before stating his conclusion (at [222] and [228]) that the term 'paramedic' in the exemption denotes an employee who is classified as a paramedic by virtue of the operation of the 2010 Award (and, by necessary connection, is appointed to an approved position within the Ambulance Service). His Honour found that the respondent was such an employee at the time of her injury and hence, was exempt from the provisions of the 2012 Amendment Act. It was irrelevant, in his Honour's view, that the respondent was not performing, or rostered to perform, operational paramedic duties at the time of her injury.
In summary, his Honour's reasons included, first, that the use of the indefinite article "a" before the words "police officer, paramedic or firefighter" grammatically indicated that the focus of the exemption was the particular designation of worker, rather than that the exemption only applied to certain characteristics or functional aspects of a person holding such an office or engagement: at [198].
Secondly, having regard to the immediate context in which the words 'a paramedic' are used (that is, the words of association), each word in the exemption concerns the designation of an officer engaged in the discharge of emergency services in New South Wales, such as a member of the police force or, in the present case, appointed by the Ambulance Service: at [199].
Thirdly, this construction is consistent with the general intent of the workers compensation scheme as revealed by the definition of 'injury' in the WC Act, s 4. The definition is not governed by whether a worker is performing particular duties at the time of the injury, but rather whether the injury arises out of or in the course of employment. There is no indication in the text of the exemption that the protection afforded should only extend to employee paramedics who are injured whilst performing operational duties or who are rostered to perform the same: at [200].
Fourthly, the 2010 Award confirms this meaning. The definition of 'paramedic' in the Award concerns only the appointment of an employee and the attendant qualifications for that position: at [201].
Fifthly, there is no adjectival qualification in the language of the exemption of the kind argued for by the appellants, such as that the exemption only operates upon the performance of particular duties by such officers: at [203]. Further, there is nothing in the language used in the exemption which would indicate that the Parliament intended that the words of the phrase "police officer, paramedic or firefighter" be given some unusual meaning or viewed as technical expressions or terms of art: at [202].
Sixthly, there is no warrant for reading the additional word 'operational' into the exemption, so as to qualify the class of persons so designated: Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[40].
Seventhly, the narrow construction proposed by the appellants is inconsistent with the beneficial nature of the exemption. The exemption should be given a liberal construction, that is, the broadest meaning consistent with the text of the provision, here it being one that treats the exemption as operating by virtue of the classification of each nominated officer, not a narrower meaning such that employees, so classified, would only receive the protection of the exemption during the performance of operational duties (or being rostered to perform the same): at [210]-[211].
Eighthly, the purpose of the exemption is to excise from the operation of the 2012 Amendment Act three key classes of emergency services personnel appointed to the service of the State in positions holding a title well-known to the community. His Honour found nothing in the Schedule indicating an intention in the legislature to remove the benefit conferred by the exemption in circumstances where those classes of emergency worker were temporarily removed (by secondment or otherwise) from the performance of frontline duties: at [220]. His Honour observed (at [221]) that it does not follow from either the emergency and lifesaving duties of this class of worker, or from the text of the exemption, that the legislature only intended to exempt that class of worker when performing emergency and lifesaving duties: for the understandable reason … that the members of the subject classes may not, in the ordinary performance of their duties, from time to time, be engaged in the performance of front-line or emergency duties per se (a circumstance that may be readily hypothesised to extend to police officers and firefighters).
His Honour concluded (at [222]) that the respondent, in her temporary position as a Health Advisor, fell within the field covered by the exemption whilstsoever she maintained her appointment and classification as a 'paramedic' in the employment of the State within the service of the Ambulance Service. That the Ambulance Service chose to maintain that appointment whilst the respondent was under secondment for various administrative reasons did not, in his Honour's view, undermine the efficacy of that conclusion.

[14]

Appellants' submissions

The appellants' written submissions were more refined than their grounds of appeal. Three errors were alleged in the reasoning and conclusion of the primary judge. It is appropriate to treat these asserted errors as encompassing the grounds of appeal.
First, it was contended that the respondent's duties as a Health Advisor do not fall within the ordinary meaning of the word 'paramedic'. Reliance was placed upon the Macquarie Dictionary definitions of 'paramedic' and 'paramedical'.
Secondly, the appellants contended that it is irrelevant that at the time of the injury the respondent was seconded to the position of Health Advisor and that her "substantive position" was (as his Honour found) that of a paramedic. It was argued that the text of the exemption necessarily focuses attention on the "position" held at the time of the injury. The appellants contended that this required analysis of whether the injury was received by a paramedic at the time of the injury. That focuses attention on whether the relevant employee was a paramedic at that time. It was submitted that any other approach would create artificial results leading to the benefit of the exemption extending to injuries received by workers who were not working as paramedics but who may have "theoretically" retained such an appointment either for administrative or other reasons.
Thirdly, the appellants contended that even if the classifications contained in the 2010 Award have contextual relevance for determining the meaning of the word 'paramedic' in the exemption, the position of Health Advisor was not a paramedic position covered by the 2010 Award. It was argued that it was insufficient that an employee is covered by the 2010 Award because they were initially "appointed" as a paramedic. What was relevant, on the appellants' case, was whether the work that the employee is subsequently required to perform satisfies the classifications that are contained within the Award. Here, it was contended that the respondent's position as Health Advisor was not an "approved paramedic position" within the meaning of the definition of 'paramedic' in cl 5 of the Award.
The focus of debate on appeal was on the second of the alleged errors in his Honour's reasoning - whether it was relevant that, at the time of the injury, the respondent retained her "substantive position" as a paramedic even though her seconded position was that of Health Advisor.

[18]

The interpretation of the exemption involves a question of statutory construction, which is to be "determined by reference to the text, context and purpose of the relevant Act": Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [10] (French CJ, Kiefel, Nettle and Gordon JJ) referring to earlier statements to that effect in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].
Starting with the text of the exemption, the following observations can be made. First, the exemption is concerned with a workplace injury received by a worker in one of the nominated classes. The concession afforded by the exemption is conferred on three occupations, all of which might be considered onerous, risky and critically important.
Secondly, the subject matter of the exemption is an "injury received" by a worker who answers the statutory description of "a police officer, paramedic or fire fighter". The reference to "injury received" directs attention to the definition of "injury" in s 4 of the WC Act, relevantly, a "personal injury arising out of or in the course of employment".
Thirdly, the exemption does not specify that any particular activity is required of a worker in one of the nominated classes to engage the exemption. Thus, the exemption can be seen to apply to those nominated classes irrespective of the actual task that the worker may be performing at the time of injury.
Consistent with the above, the primary judge correctly found that nothing in the language of the exemption, or the WC Act as a whole, supports reading words of limitation into the concession afforded by the exemption, so as to confine the exemption to circumstances where the nominated class of worker is performing operational or "frontline" duties.
Fourthly, and importantly, the exemption does not specify that any particular duties are required to be performed by the nominated classes of worker to engage the exemption.
The constructional choice debated in this Court centred on whether the focus of the exemption is on the person's designation or status as "a police officer, paramedic or firefighter" at the time of receipt of the injury (as the respondent argued) or the person's function, that is, the duties the person is required to perform, at the time of receipt of the injury (as the appellants argued).
If, as should be accepted, the language of the exemption is not to be construed as containing the adjectival limitation of "operational", it may also be doubted that a functional limitation or qualification of the type suggested by the appellants was intended, there being no particular duties which the nominated classes of worker are required to perform to engage the exemption. The language used in the exemption, "… in respect of an injury received by a… paramedic", is broad and unqualified. The better view is that whether a worker answers the statutory description in the exemption is determined by their designation or holding the status as a "police officer, paramedic or firefighter" at the time of receipt of an injury, not by reference to the duties they are required to perform.

[19]

Beneficial legislation

There are additional reasons for rejecting the appellants' construction argument. First, the exemption can be seen to be beneficial legislation. The exemption conferred a concession on the nominated classes of workers from the detrimental effect of the changes to the workers compensation scheme introduced by the 2012 Amendment Act. Those detrimental changes included the amendments relating to medical and related expenses, introduced by Schedule 4 of the 2012 Amendment Act (which directly impacted upon the respondent) and the amendments relating to lump sum compensation for permanent impairment introduced by Schedule 2 of the 2012 Amendment Act, which are discussed in ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18; and Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250.
While primacy must be given to the text, context and purpose of the WC Act and a court needs to be cautious about a priori assumptions based on its character or legislative history, the exemption attracts the principle stated by Deane J and Gaudron J (although in dissent on the facts) in Bird v The Commonwealth (1988) 165 CLR 1; [1988] HCA 23 at 9 that workers compensation legislation is remedial in its character "and, like all such Acts, should be beneficially construed". Their Honours continued (at 9): The "established principle" was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335: "where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred". If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not construe the Act so as to exclude that person or case.
The respondent submitted that the exemption is to be given the broadest meaning available consistent with the text of the provision. This submission requires some qualification. One is that the interpretation adopted must be "restrained within the confines of "the actual language employed" and what is "fairly open" on the words used": Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55 at 638. Another is that where a provision is to be given a liberal and beneficial construction, "a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural": IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 12 (Brennan CJ and McHugh J).
While the appellants accepted in argument that the exemption was a "broad exemption", the construction advanced by the appellants would have the opposite effect of narrowing the exemption; it would exclude persons designated or holding the status of a "police officer, paramedic or firefighter" if their position did not require them to perform the duties of such nominated classes of workers at the time of receipt of an injury. To place such a qualification on the exemption which is broad and unqualified by the particular duties required to engage the exemption, would be inconsistent with the beneficial nature of the exemption.
In my view, his Honour was correct to find that the focus of the exemption was the particular designation of worker, rather than certain characteristics or functional aspects of a person holding the office or engagement of one of the designated classes of worker. It should be accepted that it is the person's designation or holding the status as "a police officer, paramedic or firefighter" at the time of receipt of an injury which engages the exemption. It cannot be said that this is an unreasonable or unnatural construction. Moreover, it is a construction fairly open on the words of the exemption without any distortion of the actual language used.

[20]

Extrinsic materials

Secondly, the appellants' reliance on extrinsic materials does not assist their argument. Mr Shoebridge MLC's speech was said to reflect a legislative intention that the exemption only apply to the workers in the nominated classes "who hold positions that require them to carry out the duties on the front line". I do not agree.
The appellants' submissions misunderstood the import of Mr Shoebridge's comments made when moving the amendment to cl 25 of the 2012 Amendment Bill. Mr Shoebridge's speech continued beyond that part (extracted at [40] above) to advocate eligibility for all workers (regardless of occupation) to the entitlement, the subject of the proposed exemption, and also, that aside, to argue it would be grossly inconsistent to grant the exemption to some emergency service workers (the police, the Rural Fire Service, and the State Emergency Service workers) but not to other vital emergency service workers (employed firefighters and paramedics).
The primary judge correctly characterised Mr Shoebridge's comments as points of argument in advocacy of equality of outcome for workers, whether serving in a permanent or emergency capacity, holding the positions identified in the exemption without any intention to precisely delineate the scope of the exemption as contended for by the appellants: at [151]. As his Honour found, Mr Shoebridge's comments do not disclose a particular view of the duties which all workers covered by the provision would be required to perform, or that the subject group of employees would only fall within the exemption if their duties required them to perform certain emergency duties.
The primary judge was also correct to reject the appellants' contention that the comments of Mr Shoebridge were directed to explicating the meaning of the term 'paramedic' (at [144]), noting that statements in Parliament, even by Ministers during the second reading debate, will seldom be available to elucidate the meaning of the later enacted text. As his Honour observed, referring to Harrison v Melhem at 399 (Mason P, Beazley and Giles JJA agreeing), "identification of mischief and purpose is one thing, statement of meaning is another".
For the reasons given above, the appellants' 'functional' construction of the exemption should be rejected. It is necessary to now turn to the question of whether the respondent answered the statutory description of a "police officer, paramedic or firefighter" at the time of receipt of her injury.

[21]

The respondent's contract of employment

In oral argument, the parties' submissions focused on the characterisation of the contractual terms of the respondent's employment with the Ambulance Service. A number of matters were uncontroversial.
First, the express terms of the respondent's employment as a 'paramedic' included that "[t]he conditions of employment for this position of 'paramedic' are embodied in the NSW Ambulance Service Operational Ambulance (State) Award", that is, the 2010 Award. Accordingly, while the terms and conditions imposed by the 2010 Award operated with statutory force, those terms and conditions of the Award also became terms of the contract: Byrne v Australian Airlines Ltd at 421; Re Pacific Coal Pty Limited; Ex parte: Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34 at [120] (McHugh J).
Secondly, the respondent's conditions of employment for the position of Health Advisor were also embodied in the 2010 Award as a matter of the express terms of the contract of secondment. Her conditions of employment therefore continued to be governed by the same Award (as a matter of contract) as that which governed her employment as a paramedic.
Thirdly, while the respondent held a different position within the Ambulance Service during the secondment, she remained an employee of the Ambulance Service.
Fourthly, the respondent's contract of employment as a paramedic continued during the period of temporary secondment, subject to the variation brought about by the secondment, namely, her temporary position in the role of Health Advisor. That the respondent could continue in one public service position despite appointment to another position is provided for by Schedule 19 of the Public Sector Restructure Act (Miscellaneous Acts Amendments) Act 2009 (NSW) amending s 102A of the Public Sector Employment and Management Act 2002 (NSW) in the following terms: 102A Appointment to position in public sector service not affected by additional appointment (1) The doctrine of incompatibility of office: (a) does not operate to prevent the holder of a position in any public sector service (the original position) from being appointed to another position in that or any other public sector service (the additional position), and (b) does not operate to effect or require the holder of the original position to surrender or vacate that position as a result of the appointment to the additional position. (2) This section: (a) applies even if the original position or the additional position is held on an acting or temporary basis, and (b) extends to an appointment made before the commencement of this section (and applies to such an appointment as if this section had been in force when the appointment was made). The reference in s 102A to the NSW "public sector service" includes "the NSW Health Service": see definition of "public sector service" in s 3(d), Public Sector Employment and Management Act 2002 (NSW). The appellants did not dispute that the Ambulance Service is within the NSW "public sector service". This is not to suggest that s 102A required the respondent to perform the duties of a paramedic whilst on secondment. It simply reinforces that the respondent could hold both positions simultaneously, with the terms of the secondment regulating what duties the respondent was required to perform as a Health Advisor and what duties she was permitted to perform on an occasional basis as an operational paramedic.
In addition, as the primary judge found, the respondent did not resign from the position of 'paramedic' and the State continued to deduct from her pay the amounts of her death and disability payments (in respect of her position as a paramedic): at [88(3)].
Counsel for the appellants emphasised that there is a distinction between the "position" occupied by an employee and the "status" that the employee has pursuant to contractual terms governing the relationship between the employer and the employee. So much can be accepted. However, counsel for the appellants resisted the proposition that, following her appointment to the position of Health Advisor, the respondent maintained her status as a paramedic. It was contended that the letter of appointment altered the respondent's status pursuant to her contract of employment as a paramedic because the respondent was appointed to the position of Health Advisor. I do not agree. That submission ignored the express terms of the secondment and conflated the concepts of 'position' and 'status' of an employee.
The respondent was appointed to a temporary 'position', as she had sought, on a part-time basis as Health Advisor within the HAC Unit of the Ambulance Service. Her conditions of employment for this position were expressed (as a matter of contract) to be those embodied in the 2010 Award. Consistent with that, her salary for this position was set at 0.63 of the full-time earnings of a paramedic specialist year 1. Nothing in the letter from the Ambulance Service offering the secondment indicated that the position of Health Advisor altered the respondent's status pursuant to her contract of employment as a paramedic; on the contrary, it implicitly reaffirmed it.
The absence of any change to the respondent's status as a paramedic when seconded to the position of Health Advisor in 2011 may be contrasted with the change of status which had earlier occurred in November 2003 when the respondent was reclassified as a "permanent part-time ambulance officer". On that occasion, the terms of the 27 November 2003 letter of offer from the Ambulance Service expressly stated that the reclassification involved "a permanent change to your employment status" with no automatic entitlement to return to the previous part-time hours or full-time employment.
There is a further matter which should be mentioned in support of the respondent's status remaining unchanged as a 'paramedic' whilst on secondment. In her application for the position of Health Advisor, the respondent requested that she still maintain an operational paramedic role at other times, if mutually agreeable. That request was consistent with the evidence of the practice within the Ambulance Service that paramedics undertaking non-frontline work on secondment, were permitted to perform occasional operational paramedic duties in order to maintain their certificates of practice as paramedic specialists. The evidence of Mr Kruit, referred to above, confirmed that the Ambulance Service intended to permit and facilitate the respondent doing occasional paramedic work while on secondment.
Counsel for the appellants properly accepted that the respondent's contract of employment as a paramedic, as modified by her temporary secondment to the position of Health Advisor, did not prevent the respondent from performing paramedic duties on an occasional basis. Counsel, however, complained that the respondent did not contend below that the terms of her secondment permitted the respondent to perform paramedic duties on an occasional basis and emphasised that the primary judge made no finding to that effect. So much can be accepted, but that does not assist the appellants' contention that the secondment changed the respondent's status as a 'paramedic'. The respondent remained classified as a 'paramedic' under the 2010 Award because she had been appointed to that position, and was permitted by the practice of the Ambulance Service to perform occasional duties as a 'paramedic' whilst seconded to the position of Health Advisor. In my view, the secondment did not affect her status as a 'paramedic'.
The appellants next submitted that the respondent could only obtain the benefit of the exemption whilst seconded to the position of Health Advisor if she received her injury at a time when she was performing duties on an "occasional" basis as a paramedic. The difficulty with this submission is that it relies upon the 'functional' qualification of the exemption which has been rejected for the reasons given above. That the respondent was not performing "occasional" operational duties as a paramedic at the time of her injury says nothing about her status as a paramedic whilst temporarily seconded to the position of Health Advisor. The answer to that question is to be found in the terms of the respondent's contract of employment, not the imposition of a 'functional' qualification on the operation of the exemption.
It should be accepted that the modification of the terms of the respondent's contract of employment as a 'paramedic', brought about by her secondment to the position of Health Advisor, did not affect her classification as a 'paramedic' being the position to which she had been appointed under her subsisting contract of employment to which the 2010 Award applied. Since the respondent's designation as a 'paramedic' was unaffected by her temporary secondment to a different position, the respondent answered the statutory description (contained within the exemption) of a person who at the time of receipt of her injury was a 'paramedic'.

[22]

Conclusion and Orders

The appellants' challenge to the declaration made by the primary judge has failed. There was no error in his Honour's finding that the respondent is exempt from the application of the changes to the workers compensation scheme introduced by the 2012 Amendment Act. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.
Accordingly, I propose the following orders: 1. Grant leave to appeal. 2. Appellants to file a notice of appeal in terms of the draft contained in the White Book within ten days. 3. Appeal dismissed. 4. Appellants to pay the respondent's costs of the appeal.
SACKVILLE AJA: Subject to one matter, I agree with the orders proposed by Gleeson JA and with his Honour's reasons.
The language of the provision exempting certain categories of workers from the retrospective amendments [1] to the Workers Compensation Act 1987 (NSW) effected by the Workers Compensation Legislation Amendment Act 2012 (NSW) is relatively straightforward. The provision, [2] to which I refer as "cl 25", states that the amendments: "do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause) …, and the Workers Compensation Acts … apply to and in respect of such an inquiry as if those amendments had not been enacted."
Clause 25 does not say that the exemption only applies to a police officer, paramedic or firefighter who is performing particular duties at the time the injury occurs. Thus a person employed as a paramedic who injures herself by tripping over a chair in head office is exempt from the amendments in the same way as a paramedic injured on the "front line" as the result of an assault by an inebriated patient. If a paramedic is temporarily seconded to another position, but retains her employment classification and status as a paramedic, as a matter of ordinary English she is aptly described as a "paramedic". There is nothing in the text of cl 25 or in the amending legislation that provides a sound basis for reading the provision otherwise than in accordance with its ordinary meaning.
It is not necessary in this case to consider the position of an employee who is not classified as a paramedic but who, at the time of the injury, performs the duties of a paramedic. However, the conclusion that cl 25 should be read in the manner I have indicated, does not necessarily mean that a person who is performing the duties of a paramedic, but who is not classified for employment purposes as a paramedic, is outside the exemption.
The reservation I have is that I do not think it is necessary to characterise cl 25 as "beneficial legislation" in order to conclude that the respondent is within the exemption. The High Court has warned against what it regards as courts identifying desirable policy and imputing that policy to the legislation (as distinct from deriving the purpose from the text and context of the legislation). [3] However, it remains permissible to characterise legislation as "remedial" and, for that reason, to warrant a beneficial construction. [4]
Clause 25 creates an exemption for three categories of workers from legislation which removes or reduces benefits to which a much larger group of workers was previously entitled. Whether a provision exempting three categories of workers, apparently considered to be deserving of special treatment, from the "detrimental changes" (as Gleeson JA describes them) should be characterised as "beneficial legislation" is perhaps doubtful.

State of New South Wales v Chapman-Davis

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (32)

Cited By (3)