Health Employees Conditions of Employment (State) Award and other Awards [2011] NSWIRComm 129

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Employees Conditions of Employment (State) Award and other Awards [2011] NSWIRComm 129 Hearing dates: 26 August 2011 Decision date: 27 September 2011 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Haylen J, Connor C Decision: (1) Each of the Awards listed in Annexure A to this Decision is varied in the terms of the relevant amended application filed by HSUeast on 16 August 2011. (2) The variations shall take effect from the beginning of the first pay period to commence on or after 1 July 2011. Catchwords: AWARD - Applications by HSUeast and Australian Salaried Medical Officers' Federation for variation of various awards covering public sector health employees to increase salaries by 2.5 per cent from 1 July 2011 - Whether jurisdiction to make interim award - Whether requirement to include no extra claims provision in any award variation - Consideration of the purpose and effect of s 146C of Industrial Relations Act 1996 - Consideration of purpose and effect of cl 6 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011- The "subject of proceedings" - Meaning of "Leave Reserved" - Effect of an award variation on the nominal term of an award - Whether exceptional circumstances existed justifying retrospective operative date of award variation - Orders made varying awards by increasing wages and salaries and relevant allowances by 2.5 per cent operative from 1 July 2011. Legislation Cited: Industrial Relations Act 1996 Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Cases Cited: Cole v Director General of Department of Youth and Community Services and anor (1987) 7 NSWLR 541 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1980-1981) 147 CLR 297 Crown Employees (Public Sector - Salaries 2011) Award (No 3), Re [2011] NSWIRComm 104 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309; (1985) 59 ALJR 658; (1985) 2 MVR289; (1985) 3 ANZ Ins Cas 60-653; (1985) Aust Torts Reports 80-323; BC8501100 Mills v Meeking [1990] HCA 6; (1990) 169 CLR; (1990) 91 ALR 16; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 10 MVR 257; (1990) 45 A Crim R 373; BC9002951 Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273; (2004) 205 ALR 1 at 11; (2004) 78 ALJR 585; (2004) 59 IPR 1; (2004) AIPC 91-973; BC200400864 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41; BC 9801389 State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 State Wage Case 2010 [2010] NSWIRComm 183; (2010) 201 IR 155 State Wage Case 2010 (No 2) [2011] NSWIRComm 29 Texts Cited: Statutory Interpretation in Australia, 4th ed (1996), Pearce and Geddes Category: Principal judgment Parties: HSUeast (Applicant in IRC2011/1178 to 1198; 1236; 1237; Respondent in IRC2011/1159) Australian Salaried Medical Officers' Federation (Applicant in IRC2011/1159; Respondent in IRC2011/1178 to 1198; 1236; 1237) Director-General, NSW Department of Health (Respondent in all matters) Director of Public Employment (Intervenor in all matters) Representation: J Murphy of counsel (Applicant in IRC2011/1178 to 1198; 1236; 1237; Respondent in IRC2011/1159)