Secretary, Ministry of Health v Australian Paramedics Association (NSW) [2021] NSWIRComm 1077

Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary, Ministry of Health v Australian Paramedics Association (NSW) [2021] NSWIRComm 1077 Hearing dates: 15 October 2020 Date of orders: 8 October 2021 Decision date: 08 October 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Murphy and Commissioner Webster Decision: Leave to appeal is refused Catchwords: APPEAL – Leave to Appeal not granted - Industrial dispute – Category of employees in receipt of "on call allowance" for more than 30 years – Employees not entitled to "on call allowance" under the Award – Payment of "on call allowance" not authorised by the employer - Whether "on call allowance" a contractual entitlement on the basis of usage – Whether authority of the employer to pay the allowance is relevant – Whether the employer's intention to enter into the arrangement is relevant – Whether over award payment is inconsistent with express terms of contract providing for terms and conditions to be in accordance with the Award – Whether the contract of employment subject to the Health Services Act 1997 where employment pre-dates the commencement of the legislation - Whether an implied term of a contract of employment is "fixed" by a law pursuant to s116A(1) – Arguments raised late in proceedings and not fully addressed – Issues affecting a small number of employees and not sufficiently important to warrant leave - Practical resolution of dispute through making of an award more appropriate Legislation Cited: Ambulance Services Act 1990 (NSW) s 15 Area Health Services Act 1986 (NSW) s 26 Health Administration Act 1982 (NSW) s 21 Health Services Act 1997 (NSW) ss 33, 37, 115, 116A(1) Industrial Relations Act 1996 (NSW) ss 3, 146C, 163(1),187, 188 Public Hospitals Act 1929 (NSW) s40BA Cases Cited: Australian Fertilizers Ltd v Australian Workers' Union New South Wales Branch (1983) AR 237 Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance (On Call Allowance for Aeromedical Control Centre Officers) (No 2) [2020] NSWIRComm 1028 Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) (2000) 106 IR 354 Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 Collective Responsibility Case (1972) AR 80 Federated Ironworkers' Association of Australia, New South Wales Division v Australian Fertilizers Ltd re Overtime (1977) AR 17 Gillies and Ors v Health Administration Corporation and Anor [2003] NSWIRComm 243 Health Administration Corporation and others v Crocker and others [2004] NSWIRComm 163 New South Wales Nurses' Association v Sydney Local Health District [2013] NSWIRComm 28 NSW Nurses' Association & Ors v South Western Sydney Area Health Service [1994] NSWIRComm 147 NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 Nurses and Midwives' Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) (No 2) [2013] NSWIRComm 29 Re Security Officers (Waterfront) Award (1988) 26 IR 1 Category: Principal judgment Parties: Secretary, Ministry of Health (Appellant) Australian Paramedics Association (NSW) (First Respondent) Health Services Union New South Wales (Second Respondent) Representation: Counsel: Ms E Raper SC and Mr D Fuller, Secretary, Ministry of Health (Appellant) Mr M Baroni, Australian Paramedics Association (NSW) (First Respondent) Mr T Slevin, Health Services Union (Second Respondent)