Operational Ambulance Officers (State) Award, Re [2001] NSWIRComm 331

Industrial Relations Commission of New South Wales

CITATION : Operational Ambulance Officers (State) Award, Re [2001] NSWIRComm 331 PARTIES : The Health and Research Employees' Association of New South Wales Health Administration Corporation FILE NUMBER: IRC 762 and IRC 6226 of 1999 CORAM: Walton J Vice-President; Grayson DP; McLeay C CATCHWORDS : Application to vary award - cross-claim by employer - onus on applicant party to establish whether existing provisions should be varied - consideration as to whether existing award provisons are fair and reasonable - primary test for evaluating whether award should be altered - special case - onus on applicant to make out its case on the evidence - applicant must demonstrate that case has special attributes or is out of the ordinary - strict compliance with wage fixing principles generally not required in special case - applicant not required to show compelling evidence or meet special onus to make out special case - conditions established in earlier award need to be ultimately tested against statutory requirement to set fair and reasonable conditions on special case criteria - where provision arising from test case, particular care required - need to compare basis for test case provisions with factors relied upon for application - occupational health and safety issues, if demonstrated, sufficent to make out special case - occupational health and safety considerations raised in this matter not part of rationale for exisitng award prescription - longstanding practice of Commission to have regard to occupational health and safety in making awards - focus of award clearly distinguishable from broader obligations under Occupational Health and Safety Act - award has general effect in preventing or remedying occupational health and safety detriments - evaluation of expert medical evidence and evidence of ambulance officers - consistent exposure to risk of psychological injury and adverse effects of acute stress - increased leave would substantially assist in avoidance of risk - evidence not demonstrative of precise level of improvement required - statistical evidence unhelpful - economic considerations - public interest - inadequate basis for full extent of claim - absence of merit for cross-claim - failure to show conditions not fair and reasonable - cost implications alone not enough - recommendation for leave to be taken in two equal parts each year - paid annual leave of absence increased by one week - review after two years - operative date - orders made Annual Holidays Act 1944 Industrial Arbitration Act 1940 s63(1)(e) LEGISLATION CITED : Industrial Relations Act 1996 s3 s10 s146 Occupational Health and Safety Act 1983 Annual Holidays Case 1974, Re [1974] 74 AR 336 Cold Storage and Ice Employees (Cumberland) Award, Re [1940] 39 AR 191 Corrections Health Service Nurses (State) Award, Re (No 2) [2001] NSWIRComm 58 Crown Employees (Administrative and Clerical Officers) (State) Award and other Awards, Re (No 2) (1993) 52 IR 243 Glass Makers (Australian Window Glass Proprietary Ltd) Award, Re (No 2) [1939] 38 AR 164 Government Railways and Tramways (Construction) Award, Re [1926] 25 AR 92 Health and Community Employees Psychologists (State) Award, Re [2001] NSWIRComm 302 CASES CITED : Metal, Engineering and Associated Industries Award 1998, Re - AIRC Print T4991, 29 December 2000 New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award, Re (2000) 100 IR 447 Pastoral Industry (State) Award, Re (2001) 104 IR 168 Shift Workers Case 1972, Re [1972] 72 AR 633 Social and Community Services Employees (State) Award, Re [2001] NSWIRComm 274 State Wage Case 2001 (2001) 104 IR 438 State Wage Case, May 1991 (1991) 36 IR 362 Transport Industry - Cash in Transit (State) Interim Award, Re [2001] NSWIRComm 220 Transport Industry (State) Award, Re (1996) 95 IR 126 HEARING DATES: 05/07/1999; 05/11/1999; 05/21/1999; 03/23/2000; 03/24/2000; 05/02/2000; 05/04/2000; 05/10/2000; 06/20/2000; 11/27/2000; 12/08/2000 DATE OF JUDGMENT: 12/18/2001