Health Services Union NSW v Director-General, New South Wales Ministry of Health [2013] NSWIRComm 21

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW v Director-General, New South Wales Ministry of Health [2013] NSWIRComm 21 Hearing dates: 18 - 20 February 20138 March 2013 Decision date: 22 March 2013 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. Declare that employees covered by the Public Hospital (Medical Officers) Award who provide a "clinical appraisal" over a telephone or by email, rather than via a computer, have provided a "clinical appraisal remotely" without onsite presence and are entitled to a minimum payment of one hour's pay at overtime rates pursuant to cl 12(ix) of that Award. 2. In accordance with the agreement reached between the parties, each party is to pay their own costs. Catchwords: AWARD - benefit - application for declaration of right - on-call resident medical officers and medical registrars - whether entitled to receive payment for undertaking a "clinical appraisal remotely without onsite presence" - meaning of clinical appraisal remotely in cl 12(ix) of Public Hospital (Medical Officers) Award - held - employees who provide a clinical appraisal remotely in accordance with cl 12(ix) of the Award entitled to payment - declaration made - Industrial Relations Act 1996, s 154 Legislation Cited: Evidence Act 1995 Industrial Relations Act 1996 Cases Cited: Certain Lloyd's Underwriters Subscribing to Contract No H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 Chevalley v Inspector Morrison [2012] NSWIRComm 18; (2012) 219 IR 193 Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 Forster v Jododex [1972] HCA 61; (1972) 127 CLR 421 at 437 - 438; (1972) ALJR 701; [1972-73] ALR 1303 Health Services Union v Director-General NSW Department of Health [2010] NSWIRComm 145 Category: Principal judgment Parties: Health Services Union NSW (Applicant) Director-General, New South Wales Ministry of Health (Respondent) Representation: Mr J Murphy of counsel (Applicant) Mr I Taylor SC with Mr D Mahendra of counsel (Respondent) Slater & Gordon Lawyers (Applicant) New South Wales Ministry of Health (Respondent) File Number(s): IRC 390 of 2012