Industrial Relations Commission New South Wales Medium Neutral Citation: Broken Hill Health Employees (State) Award 2024 [2024] NSWIRComm 1077 Hearing dates: Matter determined in chambers Date of orders: 16 December 2024 Decision date: 16 December 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The Commission orders, effective 2 July 2024, that: (1) The Broken Hill Health Employees (State) Award 2024 is made in the terms sought in the Further Amended Application; and (2) The Broken Hill Health Employees (State) Award 2023 is revoked. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Remuneration — Equal remuneration Legislation Cited: Industrial Relations Act 1996, ss 10, 11, 13, 14, 15, 16, 146 Category: Principal judgment Parties: Secretary, NSW Ministry of Health (Applicant) Broken Hill Town Employees Union (Respondent) Health Services Union NSW (Respondent) Construction, Forestry and Maritime Employees Union (Respondent) Representation: K Jonas / A Murphy (Ministry of Health) for the Secretary R Ferry (BHTEU) S Mohammad (HSU) for the HSU and the CFMEU File Number(s): 2024/00242591 Publication restriction: Nil decision 1. On 2 July 2024 the Secretary, NSW Ministry of Health (Health Secretary) applied (Application) for the making of a new award, being the Broken Hill Health Employees (State) Award 2024 (2024 Award). 2. The Application sought a three-year award, on terms set out in separate letters to the Broken Hill Town Employees Union and the Health Services Union. The terms were in conformity with a standard offer from the Health Secretary across a wide range of health awards. 3. The Application further set out that: "6. The new Award rolls over existing terms and conditions provided by the existing Award and includes an amended 'no extra claims' clause in the terms outlined in Schedule 1. 7. The new Award includes minor corrections and updates to words or phrases in the existing Award that assist with clarifying meanings and expressions without changing the intended provisions of the term or condition of the clause concerned." 1. During the first year of the proposed three-year award, the offer set out a general increase of 3% to salary and salary related allowances, a further 0.5% increase to salary and salary related allowances for select employees who had not received particular increases in the preceding 12 months, and a 0.5% increase to superannuation. 2. There was an Amended Application filed on 7 August 2024 in which the Construction Forestry Mining Energy Union (CFMEU) was added to the list of respondent unions. 3. Over the course of 5 months the parties engaged in a series of formal and informal negotiations, including conciliation before the President of the Industrial Relations Commission (Commission) and later before Commissioner Muir. 4. During conciliation the parties exchanged details about additional classifications, and about wage rises for particular classifications, sought by the Unions. 5. Some progress was made, but fundamental differences remain between the parties as to the basis on which some predecessor awards were updated to perform the now existing Broken Hill Health Employees (State) Award 2023 (2023 Award). It is apparent those differences can only be resolved through formal arbitration. 6. Given that the 2023 Award was now months past its nominal expiry date, and that accordingly the employees covered by the 2023 Award had not had the benefit of an increase since its nominal expiry, the parties came to an agreement for a one-year 2024 Award. 7. On 28 November 2024 the Health Secretary filed a Further Amended Application and included in that application under Grounds and Reasons the following amended details: "4. The Applicant seeks a new award to give effect to salary increases for FY 2024/25. … 6. The new Award rolls over existing terms and conditions provided by the existing Award and includes an amended 'no extra claims' clause in the terms outlined in Schedule 1. 7. The new Award includes minor corrections and updates to words or phrases in the existing Award that assist with clarifying meanings and expressions without changing the intended provisions of the term or condition of the clause concerned. 8. The new Award is to apply for a one-year duration effective from 1 July 2024. This will be subject to any order or award the Industrial Relations Commission may make." 1. On 9 December 2024, and in support of the Further Amended Application, the Health Secretary filed an affidavit of Alice Murphy, Director, Industrial Relations and Change affirmed on 9 December 2024, which set out: "1. I am the Director Industrial Relations (Health Services) and Change, NSW Ministry of Health ("NSW Health"). I have been in that role since June 2022. 2. In my current role, I am responsible for providing support in relation to state-wide industrial relations matters and matters of human resource policy and change programs across the NSW health system. 3. The contents of this affidavit are true and correct to the best of my knowledge, information and belief. 4. I have reviewed the proposed new award, to be known as the Broken Hill Health Employees (State) Award 2024 (the proposed Award), which was filed electronically by email on 27 November 2024. 5. The proposed Award is for 12 months effective and gives effect to a 3.5 per cent pay increase to salaries and salary-related allowances from the first full pay period on or after 2 July 2024. 6. The above rates are in addition to any increases to the compulsory rate of superannuation. 7. I have reviewed the proposed Award and to the best of my knowledge and belief, the proposed Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. 8. I have formed this view on the basis of the following: a. The Award is replacing one that has already been made by the Industrial Relations Commission with changes only relating to the pay rates. There are no changes to the conditions of employment. b. The pay rates for the classifications in the Award have all been increased by 3.5%. c. The Award provides equal remuneration for men and women by setting the pay rates for all classifications in the Award regardless of who is doing the work. There is no discretion under the Award for men to be remunerated at a higher rate or to have different conditions of employment than a women doing the same work. d. There is no evidence to suggest the Award does not provide for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. 9. I consider that the making of the proposed Award is in the public interest on the following basis: a. the proposed Award is sought by consent. b. the increase in salary and salary-related allowances to the proposed Award is made in accordance with the NSW Government approved increases to remuneration outlined in the NSW Government Fair Pay and Bargaining Policy 2023. c. Therefore, to the best of my knowledge and belief, the fiscal position and outlook of the Government and the likely effect of the increases to remuneration on the position and outlook have been considered. 10. The proposed Award variations comply with all other requirements of the Act." 1. At a telephone hearing before the Commission, earlier on 9 December 2024, the parties agreed that the Commission could, if satisfied by the evidence provided through the affidavit of Ms Murphy, make the 2024 Award in chambers. 2. In response to questions from the Commission, each of the parties agreed that the 2024 Award could be made retrospectively to the date which the Application was originally made, being 2 July 2024. This is different from the date set out in the Application, and indeed in the Further Amended Application, which was 1 July 2024 in both cases. 3. The Commission now turns to each of the matters which are set out in the Industrial Relations Act 1996 (IR Act) as requirements for the making of an award. 4. Those requirements are set out in Division 1 of Part 1 of Chapter 2 of the IR Act, and are: Division 1 Awards generally 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 11 When award may be made (1) An award may be made— (a) on application to the Commission or on the Commission's own initiative, or … (2) An application for an award may be made only by— (a) an employer, or (b) an industrial organisation of employers or employees, or … (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. … 13 Formal matters relating to making of award (1) An award is required to be in writing, expressed to be an award and signed by at least one member of the Commission. (2) An award is to be published by the Industrial Registrar on the NSW industrial relations website. (3) An award is to comply with such other requirements as to form and procedure for its making as may be made by the regulations or (subject to any such regulations) by the rules of the Commission. … 14 Mandatory dispute resolution procedures in awards (1) An award is not to be made unless it contains procedures for the resolution of industrial disputes under the award (dispute resolution procedures). … (3) Dispute resolution procedures are to include procedures for— (a) consultation at the workplace, and (b) the involvement of relevant industrial organisations. … 15 Commencement of award (1) An award comes into force on the date specified by the Commission. … (3) An award may be expressed to apply retrospectively, but not earlier than the date on which— (a) application for the award was lodged with the Industrial Registrar, or … 16 Term of award (1) An award applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission. (2) The nominal term of an award must not be less than 12 months nor more than 3 years. … Consideration Section 10 1. The Commission considers that the requirements of s 10 are satisfied based on: 1. The award continuing the terms of the 2023 Award, other than as to rates of pay and salary related allowances, and it can therefore safely be presumed that the overall conditions are fair and reasonable; 2. The consent of all parties and their submissions that the 2024 Award would set fair and reasonable conditions; and 3. The evidence of Ms Murphy as to the 2024 Award complying with equal remuneration principles. Section 11 1. The Commission considers that the requirements of s 11 are satisfied based on: 1. The Application having been made by an employer; 2. The proposed parties to the award being persons who are permitted to apply for the making of an award; and 3. Each of those parties having a sufficient interest in the 2024 Award because they have either members who will be covered by the award, or are the employer of employees to be covered by the award. Section 13 1. The Commission considers that the requirements of s 13 are satisfied based on: 1. The 2024 Award being in writing and expressed to be an award; 2. That it will be signed by a member of the Commission in due course and published by the Industrial Registrar; and 3. The 2024 Award otherwise apparently conforming as to form and procedure with the regulations and rules of the Commission. Section 14 1. The Commission considers that the requirements of s 14 are satisfied based on the 2024 Award containing a dispute resolution procedure, which includes procedures for consultation at the workplace and the involvement of relevant industrial organisations. Section 15 1. The Commission considers that the requirements of s 15 are satisfied based on the matters set out above at [13]. Section 16 1. The Commission considers that the requirements of s 16 are satisfied, given that the nominal term of the 2024 Award will be 12 months. 2. The parties acknowledged that as the 2024 Award commences on 2 July 2024 its nominal expiry date will be 1 July 2025 in order to comply with the requirements of s 16. Section 146(2) 1. Sections 146(2) provides that: 146 General functions of Commission … (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to— (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy, and (c) for the exercise of a function about public sector employees—the fiscal position and outlook of the Government and the likely effect of the exercise of the Commission's function on the position and outlook. 1. The Commission considers that the requirements of s 146(2)(a) are satisfied based on the evidence of Ms Murphy, set out in paragraphs 8 and 9 of her affidavit as set out above at [11], including that the relevant employees will receive a pay increase, largely based on maintaining the real value of their pay. 2. On the basis of the parties' submissions that less than 300 employees will be covered by this award, it must be apparent that the requirements of s 146(2)(b) and (c) can be satisfied. 3. That said parties seeking the making of an award in this Commission should be aware that the evidence provided by the Health Secretary in this matter is unlikely to be satisfactory to satisfy 146(2)(c) when awards having substantially greater coverage are sought. 4. This is not an appropriate case in which to consider the full scope of s 146(2)(c), but on its face that section will require evidence of the cumulative impact of an award and any related awards on the fiscal position and outlook of the New South Wales Government and may require expert opinion evidence from relevant officials of the New South Wales Treasury. Rule 6.8 1. The Commission considers that the requirements of Rule 6.8 of the Industrial Relations Commission Rules 2022 are satisfied based on the matters set out in paragraphs 8 and 9 of the evidence of Ms Murphy, above at [11]. 2. The Commission observes that whilst there is a basic evidential basis on which the Commission can conclude that the equal remuneration of men and women for work of the same or similar value is provided for by the 2024 Award, this largely proceeds on the absence of any capacity in the 2024 Award for direct discrimination. 3. Unaddressed is whether, in the context of an award providing for an extremely broad set of classifications, there is some structural inequality, perhaps inherited from awards having broader application across the state, under which men and women are not paid the same for work of similar or equal value. Greater focus should be paid by the parties to this issue in future award applications. 4. Whilst the parties consented to the award in the terms proposed, many historical awards of the Commission did not provide for equal remuneration of men and women, and yet were supported by the relevant parties until specifically addressed. 5. The Commission concludes it is appropriate to order the making of the 2024 Award in the terms sought by the Further Amended Application. 6. Unaddressed by the parties, but inevitably a consequence of the making of the 2024 Award, is an order that the 2023 Award be revoked. Orders 1. The Commission orders, effective 2 July 2024, that: 1. The Broken Hill Health Employees (State) Award 2024 is made in the terms sought in the Further Amended Application; and 2. The Broken Hill Health Employees (State) Award 2023 is revoked. C Muir Commissioner ********** 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: 16 December 2024