Staff Specialists (State) Award 2008 [2009] NSWIRComm 44

Industrial Relations Commission of New South Wales

CITATION: Staff Specialists (State) Award 2008 [2009] NSWIRComm 44

APPELLANT: NSW Department of Health PARTIES: RESPONDENT: Australian Salaried Medical Officers' Federation (New South Wales)

FILE NUMBER(S): IRC 2315 of 2008

CORAM: Boland J President; Walton J Vice-President; Ritchie C

CATCHWORDS: APPEAL - Appeal by NSW Department of Health against decision to vary Staff Specialists (State) Award to provide that staff specialists who salary sacrifice a new/additional fringe benefits tax exempt item will not be required to share the income tax savings arising from that exercise - Variation made on the ground that the parties to the Award had made an agreement regarding salary sacrificing - Held at first instance it was inappropriate for the employer to "walk away" from the agreement - Held at first instance that employer should be required to observe agreement by an appropriate variation to the Award - Held on appeal that whilst there was an unenforceable industrial agreement the mere existence of the agreement could not, on its own, provide a proper foundation for the Commission to exercise its discretion to vary the Award to enshrine what is said to be an entitlement under that arrangement - Held on appeal that the effect of the award variation was to embed a disparity in employment conditions in circumstances where there was no cogent evidence to support the maintenance of such a distinction on objective grounds - Held on appeal that the conduct by the Commissioner in making her own inquiries about certain matters amounted to a denial of natural justice to the appellant - Leave to appeal granted - Appeal upheld - Matter referred to President for consideration as to whether a Full Bench should be convened to deal with application to vary Award