Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431

Supreme Court New South Wales

Medium Neutral Citation: Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 Hearing dates: 14 June 2022 Date of orders: 20 October 2022 Decision date: 20 October 2022 Jurisdiction: Common Law - Administrative Law Before: Walton J Decision: (1) Pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), extend the time to commence the proceedings up to and including 25 February 2022. (2) The Amended Summons for Judicial Review filed on 25 February 2022 is dismissed. (3) Unless there is a written application to the Associate to Walton J for a different order within seven days hereof, order the plaintiff is to pay the costs of the first and second defendants as agreed or, in default, as assessed. Catchwords: ADMINISTRATIVE LAW – judicial review – procedural fairness – where Commissioner requested written submissions from parties about provision of legislation – duty to warn – no denial of procedural fairness – error of law on the face of the record ADMINISTRATIVE LAW – judicial review – jurisdictional error or error of law on the face of the record – privative clause – Industrial Relations Act 1996 (NSW), s 179 – whether certiorari can lie against a recommendation of Commission in arbitration – recommendations in arbitration are not legally binding and have no legal consequences – an order in the nature of certiorari does not lie against a recommendation made in arbitration – prerogative and declaratory relief is discretionary – discretion not to grant relief EMPLOYMENT AND INDUSTRIAL RELATIONS – employment of Aeromedical Control Centre Officers – employer is Crown in right of the State of New South Wales – Health Secretary exercises employer functions – Health Secretary may enter into contracts of employment that bind the Crown – Health Secretary has power to fix the salary, wages and conditions of employment of staff – NSW Health Service – Health Services Act 1997 (NSW), ss 116 and 116A EMPLOYMENT AND INDUSTRIAL RELATIONS – Industrial Relations Commission – industrial dispute – conciliation and arbitration – powers, jurisdiction and functions – power to make a recommendation in arbitration – recommendations are not legally binding and have no legal consequences – recommendation to pay an allowance – recommendation need not be connected or pursuant to a legal right, entitlement or requirement – Industrial Relations Act 1996 (NSW), s 136 EMPLOYMENT AND INDUSTRIAL RELATIONS – Industrial Relations Commission – appellate jurisdiction – proper principles for leave to appeal – whether a recommendation can be appealed to the Full Bench Legislation Cited: Ambulance Service Act 1972 (NSW) Ambulance Services Act 1976 (NSW) Ambulance Services Act 1990 (NSW), ss 4, 13, 15, 19 Ambulance Transport Service Act 1919 (NSW) Area Health Services Act 1986 (NSW), s 26 Commonwealth Constitution, s 51(xx) Conciliation and Arbitration Act 1904 (Cth), s 35 Gaming Machine Act 1991 (Qld) Health Administration Act 1982 (NSW), s 21 Health Services Act 1997 (NSW), ss 33, 37, 115, 116, 116A Industrial Relations Act 1996 (NSW), Ch 3, Ch 4 Pt 7; ss 3, 6, 10, 12, 130, 134, 135, 136, 137, 139, 146, 154, 155, 156, 175, 179, 187, 188 Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Industrial Relations Commission Rules 2009 (NSW), r 1.4 Public Hospitals Act 1929 (NSW), s 40BA Public Sector Employment Legislation Amendment Act 2006 (NSW) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10 Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Cases Cited: Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Ambulance Service of NSW and Health Services Union NSW (No 2) [2012] NSWIRComm 115 Australian Education Union, NSW Teachers Federation Branch v Department of Education [2019] NSWIRComm 1039 Australian Paramedics Association (NSW) v Health Secretary (NSW Ambulance re Disturbance Allowance) [2020] NSWIRComm 1020 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 Award Modernisation – Statement – Full Bench (2009) 188 IR 23; [2009] AIRCFB 865 BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494 Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 Bragg v Department of Employment, Education and Training (1995) 59 FCR 31 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Broken Hill Commerce and Industry Consent Award [2009] NSWIRComm 1095 Chapman-Davis v New South Wales (2015) 90 NSWLR 533; [2015] NSWIC 10 City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2008] NSWIRComm 250 Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2 Crown in Right of the State of New South Wales (Director-General NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association (2011) 209 IR 49; [2011] NSWIRComm 111 Custom Credit Corp Ltd (in liq) v Commercial Tribunal of New South Wales [1999] NSWSC 1021 Director-General NSW Department of Education and Communities and New South Wales Teachers' Federation [2012] NSWIRComm 54 Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013] NSWIRComm 63 Franklin v Director of Public Prosecutions (NSW) [2022] NSWCA 58 Gillies and Ors v Health Administration Corporation and Anor [2003] NSWIRComm 243 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Home Secretary v AF [No 3] [2010] 2 AC 269 Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149; [1996] HCA 44 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Jones v Canavan (1972) 2 NSWLR 236 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Kyriakou v Long [2014] NSWCA 308 Lord v Flight Centre Ltd (No 2) (2006) 156 IR 420; [2006] NSWIRComm 282 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 New South Wales Nurses' Association v Sydney Local Health District (2013) 232 IR 217; [2013] NSWIRComm 28 New South Wales v Bardolph (1934) 52 CLR 455 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 NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Tamworth Council [2009] NSWIRComm 1008 NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 NSW Nurses' Association & Ors v South Western Sydney Area Health Service [1994] NSWIRComm 147 Nurses and Midwives' Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) (No 2) (2013) 231 IR 224; [2013] NSWIRComm 29 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 1 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 Public Service Association and Professional Officers' Association Amalgamated Union of NSW South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 1 Public Service Association of NSW and Health and Anor v Broken Hill Town Employees' Union (2003) 125 IR 54; [2003] NSWIRComm 100 Quinn v Commonwealth Director of Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1; [1910] HCA 33 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 147 CLR 471; [1981] HCA 33 Rail Corporation New South Wales and Australian Rail Tram and Bus Industry Union, New South Wales (2008) 174 IR 121; [2008] NSWIRComm 101 Re Australian Fertilizers Ltd and the Australian Worker's Union, New South Wales Branch [1983] AR (NSW) 237 Re Operational Ambulance Officers (State) Award (No 4) (2016) 255 IR 193; [2016] NSWIRComm 2 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 Secretary, Ministry of Health v Australian Paramedics Association (NSW) [2021] NSWIRComm 1077 South Eastern Sydney and Illawarra Area Health Service v Health Services Union (on behalf of Peisley) (2007) 165 IR 43; [2007] NSWIRComm 157 Stanley v Director of Public Prosecutions (NSW) (2022) 107 NSWLR 1; [2021] NSWCA 337 State of New South Wales v NSW Nurses' Association [2012] NSWCA 179 State Transit Authority of NSW v Rail Tram and Bus Union (NSW Branch) [2010] NSWIRComm 9 Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 The Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081 Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207 Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58 Wattie v Industrial Relations Secretary [2017] NSWSC 1662 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 Webb v Goulburn Masonic Village (2004) 136 IR 309; [2004] NSWIRComm 258 Windrum v Matrix Healthcare Pty Ltd (2008) 180 IR 221; [2008] NSWIRComm 146 Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 Texts Cited: AV Dicey (Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) New South Wales, Parliamentary Debates, Legislative Council on 23 November 1995, 17 April 1996 and 7 March 2006 Paramedics and Control Centre Officers Award 2019 SC Taylor, "Industrial Relations in the Broken Hill Mining Industry" (1965) 7(2) Journal of Industrial Relations 101 W Blackstone (Commentaries on the Laws of England (1st ed facsimile, 1765) vol 1 Category: Principal judgment Parties: Secretary of the Ministry of Health (Plaintiff) Australian Paramedics Association (NSW) (First Defendant) Health Services Union of New South Wales (Second Defendant) Industrial Relations Commission of New South Wales (Third Defendant) (Submitting Appearance) Representation: Counsel: EC Muston SC and D Fuller (Plaintiff) M Baroni (First Defendant) T Slevin (Second Defendant)