Health Services Union NSW v Health Secretary [2017] NSWSC 1661

Supreme Court New South Wales

Medium Neutral Citation: Health Services Union NSW v Health Secretary [2017] NSWSC 1661 Hearing dates: 7 September 2017 Date of orders: 30 November 2017 Decision date: 30 November 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Union is entitled to declaratory relief.

The parties are directed to confer as to the terms in which that relief should be granted, to reflect the conclusions reached. The proposed orders should be filed within 7 days. Catchwords: INDUSTRIAL LAW – declaratory relief – Clause 17 of the Health Employees' Conditions of Employment (State) Award – long service leave – whether employees are entitled to have past periods of continuous casual service taken into account when calculating accrued long service leave under Clause 17 – clause ambiguous – referral to the Industrial Relations Commission – how construction of the Award must be approached – no evidence led about agreement which Clause 17 of Conditions Award encapsulates – Jones v Dunkel inferences – statutory framework – history of award regulation of casual employees – casual employees with requisite continuous service acquire rights under the Long Service Leave Act – prior continuous casual service of full time and part time employees to whom Clause 17 applies must be taken into account when entitlements under Clause 17 are calculated – Clause 17 does not apply to casual employees – Union entitled to declaratory relief – parties to confer – proposed orders should be filed Legislation Cited: Government Sector Employment Regulation 2014 (NSW) Health Services Act 1997 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Long Service Leave Act 1955 (NSW) Statute Law (Miscellaneous Provisions) Act 1992 (NSW) Transferred Officers' Extended Leave Act 1961 (NSW) Cases Cited: Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kennedy v Board of Fire Commissioners [1967] AR (NSW) 455 Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 Richens v Tresilian & Dun (1993) 32 NSWLR 301 Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385; [1994] NSWIRComm 112 State of New South Wales v Stockwell [2017] NSWCA 30 Category: Principal judgment Parties: Health Secretary Union of New South Wales (Plaintiff) Health Secretary (Defendant) Representation: Counsel: M Gibian (Plaintiff) A Britt (Defendant)