Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance (On Call Allowance for Aeromedical Control Centre Officers) [2020] NSWIRComm 1023

Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance (On Call Allowance for Aeromedical Control Centre Officers) [2020] NSWIRComm 1023 Hearing dates: Decision made on the papers Date of orders: 08 April 2020 Decision date: 08 April 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Leave is granted to the notifier to adduce further evidence Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to adduce further evidence after hearing Legislation Cited: Industrial Relations Act 1996 (NSW) s 130 Cases Cited: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Category: Procedural and other rulings Parties: Australian Paramedics Association (NSW) (Notifier)

Health Secretary (Respondent)

Health Services Union New South Wales (Intervenor) Representation: Counsel:

M Baroni (Notifier)

D Nagle (Respondent)

Solicitors:

J Fox of Health Services Union New South Wales (Intervenor) File Number(s): 2019/348333 Publication restriction: N/A

Judgment 1. On 6 November 2019 the Australian Paramedics Association (NSW) ("APA") notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Notification"). 2. The hearing of the Notification took place on 30 and 31 January 2020. I reserved my decision. 3. On 25 March 2020 the APA sent an email to the Commission advising that on 24 March 2020 it had become aware of evidence that was "directly relevant as to the historical reasons which gave rise to the disputed payment to ACCOs". The APA requested that the matter be relisted so that the APA could seek leave to tender the new evidence. 4. In an email also received by the Commission on 25 March 2020 the Health Services Union New South Wales ("HSU"), the intervenor in the proceedings, advised the Commission that it consented to the APA's application. 5. I subsequently made directions that the APA outline in writing the nature of the new evidence that the APA would seek to adduce; how it was claimed that the evidence is germane to the matters in dispute in these proceedings; and, why the APA submitted that leave should be granted to re-open the hearing for the purposes of taking the evidence, including why the APA could not, through having made reasonable enquiries, have had the evidence available for the hearing. The Health Secretary was directed to outline in writing its position on the application. As the HSU had advised the Commission of its consent to the APA's application I did not consider it necessary to make directions in respect of that union. 6. On 31 March 2020 the APA filed with the Registry its outline of submissions on the application, together with a statement of Tom Kiat, an Industrial Officer with the APA, dated 31 March 2020. Annexed to that statement were three pieces of correspondence which comprised the extra evidence sought to be adduced. 7. In its submissions the APA stated that the "general rule is that the decision whether or not to allow such an application is to be made having regard to the interests of justice", citing Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. It submitted that the Commission should exercise its discretion to admit the new evidence for three reasons: 1. the new evidence should have been produced by NSW Ambulance in response to a Notice to Produce issued by the APA on 5 December 2019; 2. the new evidence was not available at the time of the hearing; and 3. in light of the first reason, the Health Secretary could not complain of being prejudiced. In any event, the APA submitted that there would be no prejudice to the Health Secretary in the new evidence being admitted. 1. On 3 April 2020 the Health Secretary filed her submissions in respect of the application. Those submissions noted at the outset that the decision to permit the re-opening of the evidence was a discretionary one and a matter for the Commission. The submissions challenged the probative value that the new evidence would have. The Health Secretary denied any failure to comply with the Notice to Produce. The submissions concluded with the contention that the "new evidence…takes the case nowhere, only serves to delay a determination and is of no relevance". 2. On 8 April 2020 the parties were informed that I considered that I would be able to determine the APA's application on the material filed without further hearing from the parties. The parties were asked to advise whether they had any objections to me doing so. Each of them notified the Commission that they had no such objection. 3. I accept that the new evidence sought to be adduced by the APA was not available to it at the time of the hearing. On the material presented to me I am not satisfied that NSW Ambulance failed to comply with the Notice to Produce. I do not consider in all of the circumstances that the Health Secretary would be prejudiced by the admission of the new evidence. There may, however, be some force to the Health Secretary's submissions as to the weight, if any, that ought to be attached to the new evidence. 4. Having considered the evidence and submissions filed in relation to the APA's application, I have decided to admit the further evidence, subject to consideration as to the weight to be attached to it. 5. Leave is granted to the APA to adduce the following additional evidence: 1. a letter from Bill Jacobs to Barry Smith dated 22 March 1995, which will be marked as Exhibit A12; 2. a letter from Mr Jacobs to the Salaries Section of the ambulance service of New South Wales dated 8 February 1995, which will be marked as Exhibit A13; and 3. a memorandum from Mr G McGuire to Superintendent K Den dated 16 March 1995, which will be marked as Exhibit A14. Damian Sloan Commissioner