Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance [2021] NSWIRComm 1016 Hearing dates: 9 December 2020 Date of orders: 8 March 2021 Decision date: 08 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Order made for payment of money Catchwords: INDUSTRIAL DISPUTE – claim for payment of overtime for working additional shifts – small claims jurisdiction – order made Legislation Cited: Industrial Relations Act 1996 Cases Cited: Cepus v Heggies Transport Pty Ltd [1994] 52 IR 123 Texts Cited: Nil Category: Principal judgment Parties: Australian Paramedics Association (NSW) (Notifier) Health Secretary in respect of NSW Ambulance (Respondent) Health Services Union NSW (Intervener) Representation: Mr I Latham of counsel (Notifier) Mr M Easton of counsel (Respondent) Ms O Forsyth-Sells (Intervener) File Number(s): 2019/00335189 Publication restriction: Nil DECISION 1. This matter arose initially out of a dispute notification filed on 25 October 2019 by the Australian Paramedics Association (NSW) ("APA") pursuant to section 130 of the Industrial Relations Act 1996 ("Act"). In the dispute notification, the APA asserted that its member, Richard Duddy, a paramedic stationed at Morisset Ambulance Station at the relevant time, had been underpaid for the number of shifts he worked during the 9 week roster cycle which began on Saturday 27 October 2018. The correct respondent to the dispute notification is the Health Secretary in respect of NSW Ambulance. At the relevant time, the award in force was the Operational Ambulance Officers (State) Award ("Award"). 2. The dispute notification contained the following: 4. The question, dispute or difficulty concerns the following industrial matters: ……………………….. 1. APA (NSW) seeks the assistance of the Industrial Relations Commission to ensure our member is compensated for the work he has done. 2. Annexure A shows communication between APA (NSW) and NSW Ambulance (NSWA) about the matter. a. Key points to note are that there is no dispute about the hours worked by our member Richard Duddy on the roster cycle commencing 27 October 2018 which runs for 9 weeks. b. There is no dispute about the fact that the employer that the hours were worked at the direction of the employer 3. In this 9 week cycle Richard had taken 3 weeks annual leave. Annual Leave with this NSW Ambulance (NSWA) is very ridged with the employer approving it over 12 months in advance in most cases. 4. During the cycle of leave NSWA has changed the lines of the roster that our member is to return on. This is resulted in the discrepancy in hours and pay. 5. NSWA made this decision deliberately to ensure that our member would have to work more hours to on weeks he should have worked less. 6. Our member worked to ensure that service to the community was maintained in good will, expecting the same from his employer, NSWA which you can see from the communication has not been forth coming. 7. Details of our members roster and local standard rosters are also attached for your information (Annexure B) &. APA (NSW) cannot accept there no compensation for our members work, specially in this deliberate nature. 9. While this is an extreme example, similar situations have been reported in the past where the employer has shown no regard for the hours worked by paramedics 10. APA (NSW) seeks: a. Our member Richard to be compensated for the hours he has worked b. An audit each 9 week cycle to ensure that no paramedics are underpaid for hours worked c. NSWA develop an approach to rostering that will not disadvantage paramedics when taking Annual Leave (eg, Paramedics work a Saturday to Friday week, there are instances where they are rostered on Friday night before their leave is due to start on Saturday resulting in paramedics working 7 hours into their week of leave). d. Commitment from NSWA to not disadvantage paramedics when the employer's decision results in a paramedic working less hours than is contracted to do. 1. The dispute notification was initially allocated to Commissioner Webster who convened a number of conciliation conferences in late 2019. The Health Services Union NSW ("HSU") sought and was granted intervention. The dispute did not settle and on 28 April 2020 Commissioner Webster issued a certificate of attempted conciliation pursuant to section 135 of the Act. Directions were made for the filing and serving of evidence and submissions and the matter was reallocated to me to hear and determine. 2. The facts of the matter are not in dispute. Over the period of the 9 week roster cycle at Morisset Ambulance Station, officers would normally be rostered to work a total of 342 ordinary hours or an average of 38 hours per week. This would occur if an officer worked sequentially through the 9 roster lines regardless of which roster line the officer commenced on at the beginning of the 9 week roster cycle. However, this did not happen with respect to Mr Duddy during the 9 week roster cycle which began on 27 October 2018. 3. The hours worked by Mr Duddy for the 9 week roster cycle commencing on Saturday 27 October 2018 are set out below: Week Roster Sat Sun Mon Tue Wed Thu Fri Hours Line 1 6 0.00 12.00 12.25 12.25 12.25 0.00 0.00 48.75 2 7 0.00 0.00 0.00 12.25 12.25 12.25 12.25 49.00 3 8 0.00 0.00 0.00 0.00 0.00 12.25 12.25 24.50 4 (AL) 9 12.25 12.00 0.00 0.00 0.00 0.00 0.00 24.25 5 (AL) 1 0.00 0.00 12.25 12.25 12.25 12.25 0.00 49.00 6 (AL) 2 0.00 0.00 0.00 0.00 12.25 12.25 12.25 36.75 7 5 12.25 12.00 12.25 12.25 0.00 0.00 0.00 48.75 8 6 0.00 12.00 12.25 12.25 12.25 0.00 0.00 48.75 9 7 0.00 0.00 0.00 12.25 12.25 12.25 12.25 49.00 1. Mr Duddy worked a combination of 12 hour and 12 hour 15 minute shifts. He commenced the 9 week cycle on roster line 6 and worked through roster lines 7 and 8 before proceeding on a block of 3 weeks' annual leave. However, instead of returning from annual leave on roster line 3, which would have been the next roster line in sequence, he returned on roster line 5 and then worked roster lines 6 and 7 to the end of the 9 week cycle, due to another officer at the station taking annual leave for the last three weeks of that roster cycle. This is known colloquially as a "line switch". 2. Had Mr Duddy returned from his 3 weeks of annual leave onto roster line 3, the total hours he would have been rostered to work for the last 3 weeks of the 9 week roster cycle would have been 24.50 (week 7), 36.50 (week 8) and 48.75 (week 9) or a total of 109.75 for that 3 week period. Instead, the hours he actually worked were 48.75 (week 7), 48.75 (week 8) and 49 (week 9) or a total of 146.50 for that 3 week period, 36.75 hours more than if he had returned from his annual leave on roster line 3. 3. Further, if Mr Duddy had not taken annual leave during weeks 4, 5 and 6 of the roster cycle, but actually worked the hours shown at [5] above, his total working hours for the 9 week roster cycle would have been 378.75 or 36.75 hours more than the normal rostered hours of 342 for the 9 week cycle. It was conceded by Mr Easton, counsel for the respondent, that, if this had occurred, Mr Duddy would have been entitled to have been paid overtime for the hours worked in excess of 342. 4. Mr Duddy worked an additional 3 shifts of 12.25 hours each during the last 3 weeks of the roster cycle than he would have worked had he not taken annual leave or had he returned from annual leave on roster line 3. The APA claims that Mr Duddy is entitled to be paid at overtime rates for the additional three shifts that he worked. 5. Prior to the initiation of this dispute by the APA, the practice had been that, when an officer returned from a block of annual leave onto a non-sequential roster line and, as a result of switching lines, worked additional shifts, as occurred with Mr Duddy, that officer was not paid overtime for working those additional shifts. Conversely, when an officer worked less shifts than would otherwise have been worked as a result of switching lines, the officer was still paid as if he or she had worked the normally rostered number of shifts. This arrangement was described in an email dated 3 October 2019 from Mr John Papas, Industrial Relations Specialist, NSW Ambulance, to the APA as "the long-standing practice of swings and roundabouts on pay averaging". However, there is no reference to any such long-standing practice in the Award. 6. Clause 24 – Overtime of the Award was in the following terms: 24. Overtime (a) Subject to clause 23, Employees On Call, all time worked in excess of the rostered hours on any one day shall be paid for at the rate of time and one-half for the first two hours and thereafter at the rate of double time, provided that overtime worked on a Public Holiday shall be paid for at the rate of double time and one-half. (b) Overtime shall be computed on the wages prescribed by Tables 1A and 1B in Section 8 - Monetary Rates, and the allowance prescribed by clause 23, Employees On Call, as compensation for time on-call shall be disregarded. (c) Employees shall, when required, work reasonable levels of overtime to meet the needs of the Service. (d) Should an employee be required to work overtime for more than two hours before his or her normal commencing time, or after his or her normal ceasing time, he or she shall be paid a meal allowance as set out in Item 11 of Table 2A - Allowances of Section 8 - Monetary Rates, and shall be paid such allowance after every subsequent four hours of overtime worked. (e) Where an employee is required to work a complete overtime shift, he or she shall be given the appropriate meal break for that shift. However, the meal penalty provision of subclause (b) of clause 20, Hours of Duty, shall not apply. (f) For the purposes of assessing overtime, each day shall stand alone, provided however that where any one period of overtime is continuous and extends beyond midnight, all overtime hours in this period shall be regarded as if they had occurred within the one day. 1. Subclause 24(a) refers to "all time worked in excess of the rostered hours on any one day". However, it is not in dispute that overtime includes the working of whole shifts on days that would otherwise be rostered days off. Subclause 24(e) specifically refers to "a complete overtime shift". It is also not in dispute that when a complete overtime shift is worked, the officer is paid at the rate of time and a half for the first two hours and double time for the remainder of the shift. 2. I convened hearings on 8 and 9 July 2020. On 21 August 2020 I convened an off record conciliation conference. After hearing the parties and considering the filed submissions and evidence, I formed the opinion that subclause 24(a) of the Award required that Mr Duddy be paid at overtime rates for the additional 3 shifts that he worked in weeks 7, 8 and 9 of the 9 week roster cycle that commenced on 27 October 2018. On 21 August 2020, I issued the following recommendation: 1. In relation to Mr Duddy's roster commencing 27 October 2018, he is to be paid his extra three shifts as a result of the line switch as 36.75 hours of overtime. 2. NSW Ambulance is to consider how to resolve past claims, similar to Mr Duddy's, that come forward directly or through the unions. 3. The parties are to confer as to the future arrangements as to line switches. 4. There will be a report back before me at 11.30am on Monday 28 September 2020. 1. This recommendation was not accepted by the respondent. On 28 September 2020 the APA indicated to the Commission that it wanted to proceed to a Small Claims application pursuant to Part 2 of Chapter 7 of the Act with respect to the alleged underpayment to Mr Duddy. I subsequently made directions for the filing and serving of outlines of submissions by the parties. Submissions of the APA 1. The APA relied upon the following submissions which were filed on 23 October 2020 (footnotes omitted): 1. The Applicant makes these submissions in accordance with the directions made by the Commission on 28 September 2020. Background 2. The Applicant filed a Dispute Notification pursuant to section 130 of the Act on 25 October 2019. The relevant subject matter of the s 130 Dispute Notification was a dispute with respect to the remuneration received for hours worked by Mr Richard Duddy (a member of the Applicant union) as a Paramedic for NSW Ambulance, during a 9 week roster cycle commencing 27 October 2018. 3. The dispute was conciliated by Commissioner Webster. The conciliation did not lead to resolution of the dispute. The dispute proceeded to arbitration before Commissioner Murphy [the Substantive Proceedings]. 4. Evidence and submissions were filed by both parties in the Substantive Proceedings in accordance with directions made by the Commission. 5. The Substantive Proceedings were set down for hearing on 8 and 9 July 2020. On 8 July the evidence of all parties was tendered without objection and oral submissions were made. Oral submissions concluded that day with Commissioner Murphy concluding that Mr Duddy should be paid three shifts at overtime rates consistent with the Applicant's case. 6. The parties agreed to confer with respect to what implications the subject matter of Mr Duddy's case might have for the broader Paramedic workforce. 7. The Applicant circulated a proposal in relation to the broader issue which the parties requested an additional month to consider. Accordingly on 9 July the matter was stood over until 21 August 2020. 8. At the 21 August 2020 hearing, the parties agreed to further discussions in the nature of conciliation on the undertaking that no party object to Commissioner Murphy continuing to arbitrate the substantive proceedings. 9. Following the discussions, the Commission made a recommendation dated 21 August 2020 in the following terms: "1. In relation to Mr Duddy's roster commencing 27 October 2018, he is to be paid his extra three shifts as a result of the line switch as 36.75 hours of overtime. 2. NSW Ambulance is to consider how to resolve past claims, similar to Mr Duddy's, that come forward directly or through the unions. 3. The parties are to confer as to the future arrangements as to line switches. 4. There will be a report back before me at 11.30am on Monday 28 September 2020." 10. In correspondence dated 17 September 2020, the Respondent said it would not comply with point (1) of the recommendation. 11. Accordingly, at the report back on Monday 28 September 2020, the Applicant sought leave of the Commission to file a small claims application [the Application] with respect to the recommendation made in the substantive proceedings pursuant to s 380(1), for orders under Part 2, Chapter 7 of the Act. The Commission made directions for submissions and a hearing on the Application [the Small Claims Proceedings]. The Application 12. The particulars of the Application were detailed in the completed Form 5 'Particulars of Small Claim Under Section 379 Made During Other Proceedings' form, signed by Tom Kiat, APA (NSW) Industrial Officer, on 25 September 2020. This form was provided to the parties and the Commission by email on 25 September 2020, prior to the 28 September 2020 report back at which Directions in the Application were made. Power of the Commission 13. Chapter 7, Part 2 of the Act relates to the powers of the Commission to enforce the recovery of remuneration and other amounts. The Applicant brings the Application under s 380 of the Industrial Relations Act [the Act]. 14. The Commission has power to deal with such an application if the order is sought against another party to the proceedings: s 380(2). The Respondent is a party to the proceedings. 15. The Application relates to a claim in respect of one employee for an amount of less than $10,000 and therefore meets the requirement under s 379(3). 16. For the purpose of dealing with the Small Claims Proceedings, the Commission is defined under the Part as an industrial court: see definition of 'industrial court' at s 364. 17. The powers of an industrial court under the Part include the power to make orders for recovery of amounts payable under an industrial instrument (s 365); order for interest to be paid (s 372) and orders for costs (s 373). See also the Industrial Relations Rules 2009, r 15. 18. The general powers of the Commission under the Part to make such orders, have been repeatedly exercised by the Commission: see TWU v Conco [2020] NSWIRComm 1054 for a recent example. 19. The Commission has complied with the requirement to conciliate under s 371 (and r 15.3). Representation of parties by Australian legal practitioners 20. The Applicant seeks approval under s 379(5) to be represented by an Australian Legal Practitioner and consents to the Respondent being similarly represented. The Applicant submits that neither party will be disadvantaged by such representation. Discretion to deal with Application 21. The Applicant accepts that the Commission's power to hear the Application is discretionary: a. The Commission may remit a small claims application to an industrial court constituted by an Industrial Magistrate for determination: s 380(5). b. The Commission may form the opinion that the matters in dispute are so complex or difficult, or are of such importance, that the proceedings ought not be determined as a small claims application: r 15.2. 22. The Applicant submits that the matters in dispute are not so complex or difficult, or of such importance, that the proceedings ought not be determined as a small claims application, particularly in circumstances where the Commission has already heard evidence and submissions from all parties, and has made a recommendation on that basis. Evidence, submissions and outcome in the Substantive Proceedings 23. The parties have filed evidence and submissions in the Substantive Proceedings. All parties had opportunity to be make oral submissions on two separate hearing dates. 24. The evidence led in the Substantive Proceedings will be taken as evidence and submissions in relation to the Application. This course proposed by Commissioner Murphy was not objected to by any party. 25. Commissioner Murphy also suggested that the submissions in the Substantive Proceedings could be adopted with respect to the Application. On that basis the Applicant simply submits that the Commission in this Application should reach the same conclusion as was reached in the Substantive Proceedings as reflected in point (1) of the recommendation of 21 August 2020. In support of this position, the Applicant relies particularly on paragraphs 10 to 31 of its submissions filed 11 February 2020, its reply submissions, and on the oral submissions made at hearing. 26. The Applicant maintains that the Award in its present terms permits for payment of overtime for 'complete overtime shifts' such as were worked by Mr Duddy in this case, as hours 'worked in excess of rostered hours' properly understood in the context of the Award. This interpretation is consistent with the longstanding practice of complete overtime shifts being paid in accordance with the provisions of cl 24(a) (i.e. time and half for the first two hours and double time thereafter) and is specifically contemplated by cl 24(e). Calculation of underpayment - at current rates and at historical rates with interest 27. Paragraph 13 of Mr Duddy's statement of 7 February 2020, filed in the Substantive Proceedings, establishes that: a. He has received payment in relation to the shift penalties for all shifts worked, including his extra three shifts, in his roster commencing 27 October 2018; and b. He had not otherwise received payment with respect to the three extra shifts worked as a result of the line switch. 28. For simplicity, the form signed 25 September 2020 particularising the small claim calculates Mr Duddy's underpayment using current wage rates and without calculating the amount of interest payable. A claim figure of $2,701.78 is reached. 29. These submissions set out an alternate calculation using the historical rates and applying the prescribed interest rate, as suggested by Commissioner Murphy in making directions on 28 September 2020. 30. The interest rate that may be applied under Ch 7 Pt 2 is the rate set by s 101 of the Civil Procedure Act and may be applied with respect to any amount of the sum to be paid under the Part and with respect to any part of the period from when the amount became due to the date of the order. 31. The prescribed rate under s 101 of the Civil Procedure Act is set out at r 36.7 of the UCPR as 6% above the cash rate last published by the RBA, split into periods 1 January to 30 June and 1 July to 31 December for each year. For simplicity, the Applicant will assume the amount became payable on 1 January 2019 and that orders will be made on 9 December 2020. The prescribed rate in the relevant periods was: a. 1/1/19 to 30/6/19: 7.5% b. 1/7/19 to 31/12/19: 7.25% c. 1/1/20 to 30/6/20: 6.75% d. 1/7/20 to 9/12/20: 6.25% 32. The weekly rate for a Paramedic Year 2 under the Operational Ambulance Officers (State) Award 2018 was $1420.75. 33. Calculation of Mr Duddy's claim using historical wage rates and applying the interest rate applicable under Ch 7 Pt 2 is set out at Schedule 1 to these submissions. An alternate claim figure of $2,991.89 is reached. Schedule 1: Calculation of Claim using Historical Rates and Applying Interest Step I: Amount Payable Mr Duddy's Weekly Rate $1,420.75 Hourly rate $37.39 First two hours of each shift paid at time and a half $112.16 Remaining 10.25 hours of each shift paid at double time $766.46 Total for each 12.25 hour shift $878.62 Total for three shifts (36.75 hours) $2,635.87 Step 2: Interest on principal amount Period Interest Rate Years Interest on $2,635.87 1/1/19 to 30/6/19 7.5% 0.5 $98.84 1/7/19 to 31/12/19 7.25% 0.5 $95.55 1/1/20 to 30/6/20 6.75% 0.5 $88.96 1/7/20 to 9/12/20 6.25% 0.44 $72.67 Total $356.02 Step 3: Principal plus Interest $2,635.87 + $356.02 = $2,991.89 Submissions of the respondent 1. The respondent relied on the following submissions which were filed on 26 November 2020 (footnotes omitted): 1. These proceedings commenced by way of a s130 notification. Conciliation was unsuccessful and in July 2020 the Commission began a hearing. In the preliminary stages of the hearing, the Commission made inquiries of the parties about various aspects of the dispute in an entirely orthodox way. 2. What then followed was a flowing exchange between the Commission and the advocates for the respective parties, during which the Commission proposed an option for the parties to consider that the Commission thought would resolve the dispute. 3. Whilst it is literally correct to say that "oral submissions concluded that day'' it is not at all correct to say that any of the parties began and completed their oral submissions on the issues at hand. It is certainly not correct to say that "all parties had the opportunity to .. make oral submissions on two separate hearing dates". 4. Similarly, it is not correct to say that the Commission made any conclusions on 8 July 2020 that the Paramedics and Control Centre Officers (State) Award 2019 (Award) required that Mr Duddy be paid three shifts at overtime rates for the hours he worked in the roster cycle commencing 27 October 2018. 5. In fact, the Commission made no findings about the matters in contest at all. 6. The Commission made an informal recommendation on 8 July 2020 that Mr Duddy be paid three shifts at overtime rates. Lest there be any doubt about that, the Commission made a formal recommendation to that effect on 28 September 2020 (incorrect: the formal recommendation was made on 21 August 2020, see [13] above). 7. The respondent took appropriate steps to address the Commission's recommendation. 8. The small claim filed in these proceedings appears to try to enforce the recommendation of the Commission. Such an approach is fundamentally misguided. 9. A debate might arise as to whether the Commission was exercising its arbitral power (per 136(1)(a)) or its conciliation power (per s135(9) and 134(2)) when making the recommendation in question. 10. The respondent submits that the recommendation was made in the course of further conciliation (per s.135(9)) after arbitration had commenced and as such "failure to comply with any such recommendation ... may not be penalised" (per s134(2)). 11. But even if the recommendation was made in arbitration proceedings, it is not enforceable as an industrial instrument. 12. Section 380 allows an industrial organisation to make "an application under this Part". Section 380 is in Part 2 of Chapter 7 of the Act. In essence Part 2 of Chapter 7 deals with enforcement of industrial instruments. 13. "Industrial Instrument" is defined ins 8 of the Act. A recommendation made in dispute proceedings is not an industrial instrument, nor is a determination made under s 175 of the Act (to the extent that the Notifier might allege that the Commission made a determination on 8 July 2020). 14. To the extent that the Notifier's small claim seeks to enforce the Commission's recommendation, it must be dismissed. 15. Even if the recommendation was somehow enforceable in the small claims jurisdiction, the Commission would not ever allow such a claim to succeed: a. the proceedings on 8 July were entirely orthodox and consistent with the way in which proceedings in the Commission progress from time to time; b. neither the Notifier, the respondent or the HSU were called upon to present their case in full in the arbitration proceedings. Instead, the Commission suggested a solution and the matter was adjourned to allow all the parties to properly consider the Commission's suggestion; c. if remarks from the Bench (even if they are concluding remarks) or the views of the Commission expressed at the preliminary stage of the hearing, or for that matter suggested solutions from the Commission, are in fact enforceable as a small claim, then no party appearing before the Commission would expose themselves to such procedural injustice; d. right-thinking parties would not submit anything but formal submissions and would insist upon being heard in full before the Commission verbalises any preliminary views about matters in dispute; and e. in order to act according to equity, good conscience and the substantial merits of the case (per s 163) the Commission would have to afford procedural fairness to each party and the opportunity to advance their case in full before making any enforceable remarks, conclusions or preliminary views during a hearing. As such, members of the Commission would logically refrain from expressing any preliminary views in case those views are enforced (or appealed) by a party to the proceedings. 16. To the extent that the Notifier's small claim seeks to enforce the Award or its predecessor awards, the respondent says the small claim must be dismissed. The respondent relies upon the Outline of Submissions filed earlier in these proceedings. 17. The respondent says, in short: a. in the Award, overtime is only payable for "all time worked in excess of the rostered hours on any one day" (clause 24(a)) and is payable by reference to (1) time worked and (2) rostered hours; and b. in the roster cycle commencing 27 October 2018, Mr Duddy did not work in excess of his rostered hours, or "any time in excess of the rostered hours on any one day" for any of the days he has claimed. 18. The Commission can note that the proper respondent should be the Secretary, NSW Health in respect to staff engaged at NSW Ambulance (per s.116(3) of the Health Services Act 1997). APA submissions in reply 1. The APA relied upon the following submissions in reply filed on 3 December 2020 (footnotes omitted): 1. The Respondent's written outline of submissions of 24 November 2020 [RS] submits that: The small claim filed in these proceedings appears to try to enforce the recommendation of the Commission. Such an approach is fundamentally misguided. 2. The Applicant does not seek to enforce a recommendation of the Commission. It seeks to have the Commission determine a small claim application. 3. The Respondent also submits that the proper respondent should be the Secretary, NSW Health in respect to staff engaged at NSW Ambulance. 4. The Respondent accordingly seeks leave of the Commission to amend the application and final orders to by substituting the words "the Secretary, NSW Health" as the respondent. 5. The Application in the small claims jurisdiction allows the Commission consider the same evidence and submissions as were considered in the s 130 proceedings, and the Applicant submits that the same conclusion should be reached. The s 130 proceedings 6. The issue of Mr Duddy's underpayment claim was dealt with by written evidence and submissions, and by oral submissions. The Applicant submits that the evidence and submissions in the s 130 proceedings should be considered by the Commission in these proceedings and should lead to the Commission reaching the same conclusion i.e. that Mr Duddy's underpayment should be rectified. 7. The Respondent was given an opportunity to fully present its case on the underpayment issue in the s 130 proceedings. However even if this were accepted, the respondent still may make further written and oral submissions in this hearing. At RS paragraph 16, the Respondent does so in the same terms as set out in the earlier s 130 proceedings. 8. The applicant seeks the following orders, consistent with the calculations set out at in the Applicant's submissions of 22 October 2020 [AS], [29]-[33] and Schedule 1: a. That the Respondent pay Mr Richard Duddy for the three overtime shifts totaling 36.75 hours worked in the roster cycle of 27 October 2018 in the following amounts: i. $2,635.87 for the hours worked; and ii. $356.02 in interest; being a total of$2,991.89. b. Each party to bear their own costs. 9. At [17] the Respondent appears to summarise its submissions by reference to the terms of overtime clause only. It is worth repeating that Mr Duddy's evidence is that he was not paid at ordinary nor overtime rates for the three excess shifts that arose due to the line switch: see AS [27]. 10. The Applicant at paragraph 26 of AS proposes the correct interpretation of the overtime provision at cl 24(a) of the Award with respect to "complete overtime shifts" that are in excess of rostered hours, by reference to longstanding practice and clause 24(e). 11. A complete overtime shift arises when a shift is worked in excess of "rostered hours" meaning hours rostered in accordance with clauses 20 and 22. It is clear contextually that clause 24(a) does not only apply to the excess hours worked when shifts are extended but also to all circumstances where excess hours are worked. This can be seen from the payment of overtime where there is a cancellation of a day off leading to an entire overtime shift (see 22(h)(iii)) and special events coverage (see cl 17A). 12. If the Commission finds against the applicant's interpretation, the applicant seeks to amend the Award at the end of cl 24(a) in the s 130 proceedings by inserting the following terms: "Note: For the avoidance of doubt, "time worked in excess of rostered hours" includes hours worked in any shift that are in excess of a full-time employee's ordinary hours of duty rostered in accordance with clause 20(b), but does not include hours worked pursuant to clauses 17A or 17B." 13. This terms of this potential Award variation was notified to the Respondent by letter of 13 July 2020, which was before the Commission on 21 August 2020. 1. Counsel for both parties elaborated on their respective submissions during the hearing of the matter on 9 December 2020. Determination 1. Sections 379 and 380 of the Act are in the following terms: 379 Small claims procedures (1) A person who makes an application to an industrial court for an order under this Part may request that the application be dealt with under this section. (2) An application that the industrial court decides to deal with under this section is called a small claims application. (3) The maximum amount that the industrial court may order an employer to pay on a small claims application in respect of any one employee is— (a) except as provided by paragraph (b)—$10,000, or (b) if some other amount is prescribed by the regulations for the purposes of this section—that other amount. (4) The industrial court is not bound by the rules of evidence when dealing with a small claims application, but may inform itself of any matter in such manner as the court thinks fit. (5) A party to proceedings on a small claims application may be represented by an agent, but is not entitled to be represented by an agent who is an Australian legal practitioner unless the industrial court so approves. That approval is not to be given unless— (a) all parties to the proceedings agree, and (b) the industrial court is satisfied that the parties (other than the party who applies for approval) or any of them will not be disadvantaged. (6) The approval of the industrial court to be represented by an Australian legal practitioner is not required if the practitioner— (a) represents a corporation and is an officer of the corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) represents an owners corporation constituted under the Strata Schemes Management Act 2015 and is one of the proprietors or lessees constituting the owners corporation, or (c) represents a member of an industrial organisation and is an officer or employee of the organisation, or (d) represents a member of a State peak council and is an officer or employee of that council. (7) The approval of the industrial court to be represented by an Australian legal practitioner may be given subject to such conditions as the court considers reasonable to ensure that any other party to the proceedings is not disadvantaged by the practitioner appearing in the proceedings. (8) A contravention of subsections (5)–(7) does not invalidate the proceedings or any order made in those proceedings. 380 Small claims during other Commission hearings (1) An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under section 379 (Small claims procedure). (2) Such an application may be made only if the order is sought against another party to the proceedings. (3) The Commission must not deal with the matter until the party against whom the order is sought is given adequate prior notice of the application and an opportunity to be heard on the application. (4) The Commission may deal with the matter. (5) The Commission may, instead of dealing with the matter, remit it to an industrial court constituted by an Industrial Magistrate for determination. (6) An order made in accordance with this section is to be made separately from any other order in the proceedings. (7) This section is not to be construed as excluding an application for an order being made in respect of a former employee. 1. I have approved of both parties to this small claims application being represented by an Australian legal practitioner on the basis that both parties had engaged experienced counsel to represent them and that neither party would be disadvantaged by the Commission approving such representation. 2. I reject the submission of the respondent to the effect that, by making an application for an order pursuant to section 380 of the Act, the APA is asking the Commission to enforce the recommendation that I made on 21 August 2020 (at [13] above). That is not the case. What the Commission is being asked to do is to interpret how the overtime provisions in the Award apply to the shifts worked by Mr Duddy in the last 3 weeks of the 9 week roster cycle that began on 27 October 2018 and to make an order for the payment of money to Mr Duddy accordingly if appropriate. I otherwise accept as correct the submissions of the APA set out at [15] and [17] above. 3. The principles governing the interpretation of provisions of an award were conveniently summarised in the following passage from the joint judgement of Glynn and Cullen JJ in Cepus v Heggies Transport Pty Ltd [1994] 52 IR 123 (at 127-128): (i) Awards are not to be interpreted as strictly as statutes; (ii) Awards are to be interpreted on the basis that the intention of the parties is gathered from the whole award; (iii) Awards are often expressed in loose language used by the parties to meet their needs; (iv) Situations which fall accidentally within the words of an award should not be regarded as coming within such award. (v) Where the words are susceptible of more than one meaning, the Tribunal should place itself in the position of the award-making body in order to understand its intended meaning. Regard may be had to evidence as to usage of the trade. (vi) The meaning to be attributed to an award term is to be found by reading it in its industrial context recognising that awards are drawn up by those who cannot be expected to be perfectionists in legal drafting. (vii) It is desirable that, in interpreting an award, the Tribunal should have the fullest knowledge of the circumstances under which it is made. (viii) The context of an award should be considered in the first instance and not merely when ambiguity might be thought to have arisen. (ix) The history of the award provision is relevant to the ascertainment of its meaning. 1. Clause 20 – Hours of Duty of the Award contained the following: (b) The ordinary hours of duty shall be: ………………………… (ii) Where work is performed in Control Centres, or on a modified hours roster in Ambulance Stations by Operational Staff, the maximum length of a shift shall not exceed 12 hours and 15 minutes. For all other staff, the maximum length of a shift shall not exceed 12 hours. The average of 38 hours per week to be calculated over the modified hour roster cycle. 1. The roster that was being worked at Morisset Ambulance Station at the relevant time was a modified hours roster. 2. Subclause 24(a) of the Award, which is set out at [11] above, refers to "all time worked in excess of the rostered hours on any one day" as attracting payment at overtime rates. The subclause does not refer to a "complete overtime shift". However, subclause 24(e) does refer to "a complete overtime shift" and the parties agree that such a shift attracts payment at the overtime rates specified in subclause 24(a). 3. It is not in dispute that Mr Duddy worked 3 shifts in the last 3 weeks of the 9 week roster cycle which began on 27 October 2018 over and above the number of shifts that he would normally have been required to work if he had returned from his annual leave on roster line 3 or if he had not taken annual leave during weeks 4, 5 and 6 of that roster cycle but worked the shifts he was rostered to work during that period. Applying the principles of award interpretation set out at [21] it is my determination that Mr Duddy is entitled to be paid an amount equivalent to 3 overtime shifts each of 12.25 hours duration. 4. The amount claimed by the APA on Mr Duddy's behalf is $2,991.89 which includes an amount of $356.02 in interest. The respondent takes no issue with mathematics used by the APA in calculating this amount. Order 1. Pursuant to section 380 of the Industrial Relations Act 1996 I order the Health Secretary in respect of NSW Ambulance, within fourteen days of the date of this order, to pay Richard Duddy the sum of $2,991.89. John Murphy Commissioner ********** Amendments 09 March 2021 - Amendment made to Paragraph [21] 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: 09 March 2021