Application by Health Secretary for Broken Hill Health Employees’ (State) Award (No 2) [2021] NSWIRComm 1000

Industrial Relations Commission New South Wales Medium Neutral Citation: Application by Health Secretary for Broken Hill Health Employees' (State) Award (No 2) [2021] NSWIRComm 1000 Hearing dates: 5, 6, 7, 8, 19, 20, 21 and 22 May 2020 and 14 August 2020 Date of orders: 13 January 2021 Decision date: 13 January 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Finding that a special case exists for the making of a new award to apply to employees of the NSW Health Service in the Broken Hill Health Service. Directions that the parties confer with a view to reaching consensus, consistent with this decision, on: (1) the classifications to which the new award will apply; and (2) the terms to be contained in the new award. Recommendation that the effective date of the termination of the current Industrial Agreement be deferred until the date on which the new award is made. Direction that if a party does not accept this recommendation they are to inform the Registry of that fact by 4.00pm on 3 February 2021. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for a new award – award would have the effect of displacing the exclusion of the County of Yancowinna from 29 other awards of the Commission – legal principles to apply – application of Wage Fixing Principles – question of onus – whether onus discharged by identification of another award of the Commission which would, but for its coverage terms, apply to the employees – whether the County of Yancowinna exclusion in an award is a "condition of employment" – whether the County of Yancowinna exclusion in those awards ought to be overridden – determination of terms and conditions of new award – terms to be derived in part from other awards Legislation Cited: Annual Holidays Act 1944 (NSW) s 3(1) Crown Lands Consolidation Act 1913 (NSW) Fair Work Act 2009 (Cth) s 134(1) Health Services Act 1997 (NSW) ss 115(1), 116(3), Ch 9 Pt 1, Sch 7 cl 41 Industrial Relations Act 1979 (WA) s 7 Industrial Relations Act 1996 (NSW) ss 3, 6, 8, 10, 17, 130, 135(9), 146(2), 146C, Ch 7, Dictionary Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) cll 5(a), 6, 7 Long Service Leave Act 1955 (NSW) s 4(2) Workplace Relations Act 1996 (Cth) Cases Cited: Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters (No 2) [2020] NSWIRComm 1066 Association of Draughting, Supervisory & Technical Employees (WA Branch) v Building Management Authority (1992) 45 IR 381 Australian Tramway Employees Association v Prahran and Malvern Tramway Trust (1913) 17 CLR 680 Award Modernisation – Statement – Full Bench [2009] AIRCFB 865 Broken Hill Commerce and Industry Consent Award [2009] NSWIRComm 1095 City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor [2003] NSWIRComm 404 Health Employees Pharmacists Award and Other Awards (No 2) [2005] NSWIRComm 264 Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244; [2003] NSWIRComm 453 Notification by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Pasminco Broken Hill Mine re Enterprise Agreement [2001] NSWIRComm 215 Notification by the Broken Hill Town Employees' Union of a dispute with the Broken Hill Musicians Club Ltd re negotiations for a new collective agreement [2001] NSWIRComm 213 Public Service Association of NSW and Health and Anor v Broken Hill Town Employees' Union (2003) 125 IR 54; [2003] NSWIRComm 100 Re Corrections Health Services Nurses' (State) Award (No 2) [2001] NSWIRComm 58 Re Liverpool City Council 36 Hour Week (72 Hour Fortnight) Child Care Staff Award 2015 [2015] NSWIRComm 22 Re Pastoral Industry (State) Award (2001) 104 IR 168; [2001] NSWIRComm 27 Re Social and Community Services Employees (State) Award (2001) 113 IR 119; [2001] NSWIRComm 274 Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156 The Private Hospital Nurses' (State) Award (Industrial Relations Commission of New South Wales, Schmidt J, 16 December 1994, unrep) State Wage Case 2019 [2019] NSWIRComm 1065 Transport Industry – General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3 Texts Cited: SC Taylor, "Industrial Relations in the Broken Hill Mining Industry", The Journal of Industrial Relations, Vol 7, No 2, July 1965 William A Howard, "The Rise and Decline of the Broken Hill Industrial Relations System", Monash University, Management Paper No 34, September 1990 Category: Principal judgment Parties: Health Secretary (Applicant) Broken Hill Town Employees' Union (Respondent) Health Services Union New South Wales (First Intervener) Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Second Intervener) Representation: M Seck with M Whitbread, both of counsel (Applicant) A Knox (Respondent) M Gibian SC (First Intervener) A Kentish (Second Intervener) File Number(s): 2019/77863 and 2019/203622 Publication restriction: No