Chapman-Davis v State of New South Wales

[2015] NSWIC 10

Industrial Court

New South Wales

Medium Neutral Citation:	Chapman-Davis v State of New South Wales [2015] NSWIC 10
Hearing dates:	4 March 2015
Decision date:	03 August 2015
Before:	Walton J, President
Decision:	It is appropriate to exercise the discretion reposed in this Court pursuant to s 154 of the IR Act to make a declaratory order consistent with the second declaration. However, I will give an opportunity to the parties to consider the final form of that order to be made having regard to the terms of this judgment. In particular, there would appear to be no reason, in light of the issues raised in the proceedings, why the order should temporally extend beyond a specification of the date of injury of the applicant. The applicant is to file and serve draft orders reflecting the terms of this decision and, if appropriate, any related submissions (as to the form of the orders) within 14 days. The respondents shall have an opportunity to file any submissions in reply as to the form of the orders within 14 days of the service of those draft orders and any submissions relied upon by the applicant relating thereto. In accordance with the same timetable, the parties shall separately file and serve any application as to costs and submissions as to the same.
Catchwords:	APPLICATION FOR DECLARATORY RELIEF – declaratory relief pursuant to s 154 – statutory construction – construction of Item 25 in Pt 19H of Sch 6 of the Workers Compensation Act – workplace injury – exemption from amendment to workers compensation legislative scheme - entitlement to workers compensation – three declarations sought – discretionary considerations – first declaration sought lacks utility – third declaration sought not pressed - whether term ‘paramedic’ should be construed by reference to award classification or duties – meaning of ‘operational duties’ – secondment - applicant maintained appointment to her substantive position during secondment and at time of injury – applicant was classified as a ‘paramedic’ under the relevant award during secondment and at time of injury – applicant was performing duties in secondment distinct to those of an ‘operational paramedic’ – principles of statutory interpretation – whether it is permissible to have recourse to extrinsic material – Parliamentary debates – meaning of the provision is “ambiguous” so extrinsic material may be considered pursuant to s 34(1)(b)(i) of the Interpretation Act – comments made in Parliamentary debates merely confirm purpose apparent upon text of the Schedule - reliance placed by parties upon Stockwell and the AWU case – authorities distinguishable on facts, but may offer some guidance – ultimate issue was whether the applicant was a ‘paramedic’ within the meaning and for the purposes of the Schedule at the time of her injury by virtue of her continued employment in a position classified at that time as a paramedic under the award notwithstanding that, in her secondment to the role of Health Advisor, which she occupied at the time, she was not required to perform the duties of an operational paramedic as defined by the respondents – reference to dictionary meaning – limitations of recourse to dictionary definition in construction –– construction must begin with consideration of text – consideration of text requires it to be read in context – application of the noscitur a sociis principle – Schedule provides an exemption from the amendments to the workers compensation legislative scheme to nominated classes of emergency services worker – indefinite article ‘a’ conditions each word in the phrase – legislative intention for words to have the current ordinary and natural meaning – consistent with general intent of the legislative scheme - whether the word ‘operational’ should be read into the Schedule – conditions not satisfied, ‘operational’ cannot be read in - beneficial construction required – identification of purpose and mischief – purpose of Schedule may be identified by express statement, text and structure as well as extrinsic material - textual construction consistent with purpose and legislative intention - ‘paramedic’ denotes an employee who is classified as a paramedic under the award and, relatedly, appointed to a paramedic position by the Ambulance Service of NSW – the applicant was such an employee at the time of her injury – the exemption in the Schedule applies to the applicant – Court determined to make a declaratory order consistent with the terms of the second declaration sought – draft orders with submissions reflecting the decision to be filed and served – costs applications and submissions in support of the same to accompany submissions on draft orders.
Legislation Cited:	Crown Proceedings Act 1988 Fire Brigades Act 1989 Government Sector Employment Act 2013 Health Services Act 1997 Industrial Relations Act 1996 Interpretation Act 1987 Police Act 1990 Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 2012 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	A-G v Scott (1904) 20 TLR 630 Amaca Pty Ltd v Novek [2009] NSWCA 50 Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Barrett v Thurling (1984) 2 NSWLR 683 Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 410 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56; (2012) 248 CLR 378 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Coleman v Power [2004] HCA 39; (2004) 209 ALR 182 Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 Construction, Forestry, Mining and Energy Union v Mammoet Aust Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 Dare v Pulham (1982) 148 CLR 658 Director-General, Department of Health (NSW) v NSW Nurses’ Association [2011] NSWIRComm 111 Eaton v Overland [2001] FCA 1834 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 441 Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380 Harrison v Melhem (2008) 72 NSWLR 380 House of Pearce Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 IW Applicant v the City of Perth (1997) 191 CLR 1 Korczynski v Wes Loftus Pty Ltd (1985) 62 ALR 225 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Lansell House Pty Ltd v Commissioner of Taxation [2010] FCA 329 Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207 Lewis v Green [1905] 2 Ch 340 Mills v Meeking (1990) 169 CLR 214 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475 Nilant v Macchia (2000) 104 FCR 238 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955-1956) 94 CLR 509 Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 R v Liverpool Justices (1883) 11 QBD 638 Re Pacific Coal Pty Ltd and Others; Ex Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346 Smart v Allen (1970) 91 WN (NSW) 241 State of New South Wales v Bishop [2014] NSWCA 354 State of New South Wales v Stockwell [2015] NSWWCCPD 9 Taylor v Owners – Strata Plan No 15564 [2014] HCA 9; (2014) 88 ALJR 473 The Australian Workers Union, New South Wales v Office of the Environment and Heritage [2012] NSWIRComm 133 The Dairy Farmers Co-operative Milk Company Ltd v Commonwealth (1946) 73 CLR 381 The Industrial Relations Secretary on behalf of Department of Justice (Corrective Services NSW) v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf of Darren Rudd) [2015] NSWIRComm 11 Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 Wentworth Securities Ltd v Jones [1980] AC 74
Texts Cited:	R W Burchfield, Fowler’s Modern English Usage (3rd ed 1998, Oxford University Press) Macquarie Dictionary (6th ed 2013, Macmillan Publishing Group) Oxford English Dictionary (2nd ed 1989, Oxford University Press) The Chicago Manual of Style (15th ed 2003, The University of Chicago Press) W A Sabin, The Gregg Reference Manual: A Manual of Style, Grammar, Usage, and Formatting (10th ed 2004, McGraw-Hill)
Category:	Principal judgment
Parties:	Lorelle Chapman-Davis (Applicant) State of New South Wales (First Respondent) QBE Insurance (Australia) Limited, as an agent for NSW Self Insurance Corporation (Second Respondent)
Representation:	Counsel: T M Ower of counsel (Applicant) P Ginters of counsel (Respondents) Solicitors: Harris Wheeler Lawyers (Applicant) Moray & Agnew (Respondents)
File Number(s):	IRC 563 of 2014

Judgment

1. On 25 July 2011, during the course of her engagement with the Ambulance Service of NSW (‘ASNSW’), Ms Lorelle Chapman-Davis (‘the applicant’) sustained an injury to her back for which she underwent spinal surgery in November 2011.

2. The applicant commenced full-time employment as an ambulance officer in September 2000. At that time, her employment was regulated by an award of the Industrial Relations Commission of New South Wales (‘the Commission’) known as the Operational Ambulance Officers (State) Award (published 10 July 1998 Vol 305 NSW IG at 905). By 2003, the applicant had progressed to the classification ‘Ambulance Officer Grade 2’ under that award, albeit on a part-time basis.

3. A new award bearing the same title was made on 2 October 2008 (published 26 June 2009 Vol 368 NSW IG 556) (‘the 2008 Award’), by which the classification of the applicant was altered, effective 12 September 2008, from ‘ambulance officer’ to ‘paramedic’ (under the transitional provisions of that Award she was classified as a ‘Paramedic Year 2’). On 24 December 2010, the 2008 Award was replaced by an award made by Staff J which also bore that title (published 11 February 2011 Vol 371 NSW IG 114) (‘the Award’).

4. On 18 July 2011, the applicant commenced work within the ASNSW Health Access Coordination Unit (HAC) in a position described as ‘Health Advisor’. Her engagement in that position was for a period of 12 months. In accordance with the letter of offer preceding that engagement, the applicant’s conditions of employment as a Health Advisor were those embodied in the Award and she was to be remunerated at the rate of “.63 FTE Paramedic Specialist Year 1”, the classification ‘Paramedic Specialist Year 1’ being a classification within the classification structure in the Award (by which rates of pay for employees were set). The applicant occupied the position of Health Advisor at the time of her injury.

5. In consequence of her injury, the applicant lodged a workers compensation claim with the relevant workers compensation insurer, QBE Insurance (Australia) Limited as an agent for NSW Self Insurance Corporation (‘the second respondent’). Liability was accepted for the applicant’s injury and she was paid workers compensation pursuant to the Workers Compensation Act 1987 (NSW) (‘the WC Act’).

6. The WC Act was amended on 22 June 2012 by the Workers Compensation Legislation Amendment Act 2012 (‘the Amendment Act’). The Amendment Act effected a number of changes to the workers compensation scheme with retrospective operation including, inter alia, the amount and duration of entitlements for some injured workers.

7. Importantly for the present proceedings, police officers, paramedics and firefighters were exempted from the application of the Amendment Act by Item 25 in Pt 19H of Sch 6 of the WC Act (‘the Schedule’), which was inserted into that Act by Sch 12 of the Amendment Act (which was entitled “Amendments Relating to Savings and Transitional Provisions”). The Schedule was in the following terms:

25   Police officers, paramedics and firefighters

The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.

8. On 30 September 2013, the second respondent wrote to the applicant to inform her that, in consequence of the changes made by the Amendment Act, her ongoing entitlement to claim medical expenses would cease on 31 December 2013.

9. The letter was demonstrative of the second respondent’s view that, as at the time of her injury, the applicant was not a ‘paramedic’ and was not, therefore, shielded from the operation of the Amendment Act by the Schedule.

refinement of the Issues in the Proceedings and associated findings

10. By way of an amended application filed on 10 October 2014, the applicant sought declaratory relief from the Industrial Court of New South Wales pursuant to s 154 of the Industrial Relations Act 1996 (NSW) (‘the IR Act’). By that application the following declarations were sought:

1. The applicant is a paramedic for the purposes of the Operational Ambulance Officers (State) Award effective 16 April 2012. The first respondent is the employer.

2. During July, 2011, including 25th July, 2011, the Applicant continued to be employed by the first respondent as a “paramedic”, within the meaning, and for the purposes, of Clause 25 Part 19H of Schedule 6 of the Workers Compensation Act 1987.

3. The Second Respondent is the workers compensation insurer for the purposes of the Workers Compensation Act 1987.

11. I should pause, at this juncture, to make an observation with respect to the “first respondent” referred to in that application.

12. The application listed the first respondent as the ASNSW. According to s 67 of the Health Services Act 1997, the ASNSW “comprises those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services under [Chapter 5A]”. Section 115 of that Act provides that “the NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown” and s 116(1)(c) provides that the Government of New South Wales employs staff “to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services”. Thus, the applicant’s employer is the Crown in right of New South Wales, rather than the ASNSW.

13. By s 116(3) of that Act, the Secretary of the Ministry of Health (referred to in that Act as the “Health Secretary”) is empowered to exercise “the employer functions of the Government in relation to the staff employed in the NSW Health Service” on its behalf. Nevertheless, the applicant’s employer remains the Crown in right of New South Wales: State of New South Wales v Bishop [2014] NSWCA 354 at [26]-[28].

14. In proceedings of this kind, the Crown in right of New South Wales should be identified, pursuant to s 5(1) of the Crown Proceedings Act 1988 (NSW), as the State of New South Wales. In consequence, the legal entity that constitutes the correct first respondent is the ‘State of New South Wales’ (‘the first respondent’): see State of New South Wales v Stockwell [2015] NSWWCCPD 9 at [4] (‘Stockwell’).

15. All subsequent references to the first respondent should be read in conformity with the above discussion and the proceedings should be entitled accordingly. The first and second respondents will be referred to collectively as ‘the respondents’.

16. Returning to the amended application, it should be noted that the first and third declaration sought therein reproduced an original application which was filed on 21 July 2014 (in which those paragraphs represented the only two declarations sought). It was readily apparent, therefore, that the amended application differed from the original application by the inclusion of the second declaration set out in [10] above.

17. That alteration occurred after concerns were raised by counsel for the respondents, Mr P Ginters, in a directions hearing on 26 September 2014. On that occasion, Mr Ginters noted, with respect to the original application:

Given the nature of the orders that are sought, there is a question which we have not formed a final view on – as to firstly the jurisdiction of the Commission to make the declarations that are sought and, related to that, is the question of the practicality or utility of the declarations that are sought.

18. Mr Ginters stated, as to the first issue, that, whilst s 154 of the IR Act was “cast in broad terms”, there was at least some debate as to whether “the Commission is seized of jurisdiction absent some underpinning dispute or proceeding before it”.

19. As to the second issue, Mr Ginters expressed the view that “it doesn’t necessarily follow as a matter of course” that a declaration that the applicant was a paramedic under the Award would resolve the dispute between the parties, that is, whether the applicant was a paramedic within the meaning and for the purposes of the Schedule. He suggested that a declaration to that effect is what ought to be sought by the applicant, “rather than doing it by stealth or alternative means”.

20. The latter issues raised by the respondents were ultimately crystallised in their written submissions dated 18 December 2014. Those submissions reflected a letter the respondents wrote to the applicant on 7 October 2014 in relation to the original application (which was handed to the Court during a directions hearing on 9 October 2014 without objection). The letter included the following terms:

2. Without conceding the Industrial Court’s jurisdiction in [the present proceedings] to make the declaration sought, my clients’ position is as follows:

2.1 As to the first declaration sought: It is not contested that whilst performing work with the First Respondent in July 2011:

2.1.1 The applicant was paid at the pro-rata rate for a Paramedic Specialist Year 1 under the [Award];

2.1.2 The applicant’s conditions of employment were as embodied in the [Award];

2.1.3 The applicant was employed by the Government of New South Wales in the service of the Crown within the First Respondent (Employer) (see sections 115(1), 116(1)(c), 67A(1) of the Health Services Act 1997).

2.2 My clients do not however concede that the applicant, whilst performing work with the First Respondent in July 2011, and especially on 25 July 2011, was a “paramedic” for the purposes of item 25 in Part 19H of Schedule 6 of the [WC Act].

2.3 As to the second declaration sought: it is not contested that the Second Respondent is the employer’s workers compensation insurer for the purposes of the [WC Act].

2.4 Again, my clients do however contest that the applicant, whilst performing work with the First Respondent in July 2011, and especially on 25 July 2011, was a “paramedic” for the purposes of item 25 in Part 19H of Schedule 6 of the [WC Act].

21. Given those concessions, the respondents contended that it would not be appropriate for the declarations sought by the applicant in the original application to be made, particularly since they would serve no practical utility (citing Forster v Jododex Australia Pty Ltd (1972) 127 CLR 441 at 437–438 per Gibbs J). That contention was maintained with respect to the first and third declarations in the amended application.

22. It will be seen from the above discussion that the respondents raised the prospect of a jurisdictional challenge with respect to the original application (although one was never pursued). However, after the filing of the amended application, no jurisdictional issues were raised by the respondents in these proceedings.

21. During the hearing, counsel for the applicant, Mr T M Ower, acknowledged that the issue for adjudication in the present proceedings was encapsulated in the second declaration sought by the applicant. Mr Ower abandoned the third declaration. (The identity of the relevant workers compensation insurer was never a point of conflict between the parties in the present proceedings.) Although Mr Ower did not entirely abandon the first declaration, he did not ultimately pursue it in argument.

22. Given the fact that the jurisdiction of the Court to make an order for declaratory relief is characterised by the exercise of a discretion in which considerations of the utility of the declaration are relevant (see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 (‘PSA v SoT’) at [165] – [181] for a discussion of the relevant authorities), the decision of the applicant not to effectively pursue the first declaration was undoubtedly correct for a number of reasons.

23. One class of declaration in which relief is commonly refused upon the basis of that discretion is where the granting of the declaration would not settle the dispute between the parties. Thus, a construction point will not be decided unless the decision is reasonably likely to solve the question between the parties: Lewis v Green [1905] 2 Ch 340, Smart v Allen (1970) 91 WN (NSW) 241. The first declaration suffers from such difficulties and, in my view, could not contribute to the resolution of the instant matter.

24. The first declaration is expressed in terms referable to the date of a variation to the Award (16 April 2012). That variation occurred some nine months after the time of the applicant’s injury. On that date the applicant was no longer performing the duties of a Health Advisor (and, in fact, may have already resumed work in a position classified as ‘Paramedic Year 2’).

25. As such, even if the applicant was classified as a ‘paramedic’ under the Award in April 2012, that fact could not resolve the issues in these proceedings which, upon the applicant’s own view, concern whether the applicant was a ‘paramedic’ at the time of her injury. That temporal confinement mirrors the terms of the WC Act which provides that the right of an injured worker to claim compensation under that Act vests at the time that the worker receives, or is deemed to have received, an injury (see, for example, s 9(1) of that Act).

26. Further, it was conceded by the respondents that the first respondent was the employer of the applicant at all material times.

27. Thus, the first declaration sought by the applicant serves no utility in the present proceedings as it does not temporally relate to the instant dispute.

28. There is a further dimension to the issues raised by the respondents as to the first order sought in the amended application. The respondents contended that a bare declaration as to the status of the applicant as a paramedic under the Award could not, in and of itself, bring the applicant within the scope of the Schedule, as the Schedule concerned the duties performed by an employee of the first respondent in the service of the ASNSW as at the time of their injury. In so doing, however, they did not concede that the applicant was, in fact, classified as a ‘paramedic’ under the Award at the time of her injury (although the respondents did concede that the applicant’s conditions of employment were embodied in the Award).

29. Since the applicant did not formally withdraw the first declaration, it is appropriate that I state that the declaration is refused on discretionary grounds having regard to the limit of the applicant’s submissions on the issue and a lack of utility. The granting of the first declaration in the amended application would plainly “be of little practical value” to the disposition of the proceedings: see A-G v Scott (1904) 20 TLR 630 at 633; Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217 and The Dairy Farmers Co-operative Milk Company Ltd v Commonwealth (1946) 73 CLR 381.

30. In the result, the issues for adjudication in the present proceedings are confined to those which arise in the second declaration sought in the amended application. That controversy was refined by the manner in which the parties framed their respective cases.

31. The applicant contended that she was a ‘paramedic’, within the meaning and for the purposes of the Schedule at the time of her injury by virtue of her classification as a ‘paramedic’ under the Award at that time. In Mr Ower’s words, “if you are classified as a paramedic you really don’t need to go any further”.

32. That approach was evinced in the “Grounds and Reasons” that were set out in par E of the amended application:

E. Grounds & Reasons

1. The Applicant was injured on 25 July 2011.

2. The Second Respondent has determined that the Applicant was not a Paramedic.

3. On 25 July 2011 the Applicant was employed as a Paramedic in accordance with the Award.

35. The applicant contended that the applicable definition for the term ‘paramedic’ under the WC Act was that set out in the Award. The applicant submitted that she was at all material times an employee who fell within the definition of ‘paramedic’ in the Award. That is, she had successfully completed the necessary and relevant training and work experience, as specified by the Award, to become a paramedic and was appointed to an approved paramedic position.

36. Upon the applicant’s submissions, she satisfied that definition in consequence of the maintenance at the time of her injury of what may be described as, to use industrial parlance, her substantive position (her appointment to a position which was classified as a ‘Paramedic Year 2’ under the Award). The applicant’s role as a Health Advisor was described as a “secondment” from that position, which did not terminate her ‘paramedic’ status. Indeed, the terms of her secondment were said to expressly confirm the continuation of that status. The applicant’s contention, in that respect, was evident in the language of the second declaration where it was said that the applicant “continued to be employed by the first respondent as a ‘paramedic’”.

37. Mr Ower contended that, if an injured worker’s employment is contracted upon the basis of being a paramedic, the employee must fall within the meaning of the term ‘paramedic’ in the Schedule regardless of whether they “are carrying out those core functions at the time or not”. In that respect, it was submitted that the applicant’s accreditation as a Health Advisor did not preclude her from being classified as a ‘paramedic’ under the Award and that she was, therefore, a ‘paramedic’ within the meaning and for the purposes of the Schedule at the time of her injury.

38. The applicant presented no other basis upon which she could fall within the meaning of ‘paramedic’ in the Schedule.

39. The applicant’s case, in that respect, was predicated upon the following series of propositions:

1. The applicant was employed by the first respondent within the service of the ASNSW as a paramedic.

2. The position that she occupied satisfied the definition of ‘paramedic’ under the Award. As such, the applicant was classified as a ‘paramedic’ for the purposes of the Award.

3. By the operation of the Award, the terms and conditions which applied to a paramedic in that instrument were superimposed onto her contract of employment.

4. The applicant’s contract of employment, and her consequential classification as a ‘paramedic’, represented her substantive position and subsisted during her secondment to the role of Health Advisor (regardless of the duties she performed in that role).

5. Thus, at the time of her injury, the applicant continued to be appointed by the ASNSW to a position which was classified as a ‘paramedic’ under the Award and to satisfy the definition of the same.

6. Accordingly, the applicant was a paramedic within the meaning and for the purposes of the Schedule at the time of her injury.

40. In that light, the second declaration sought by the applicant was, in effect, that, on 25 July 2011, the applicant “continued to be employed by the first respondent as a ‘paramedic’” within the meaning and for the purposes of the Schedule by virtue of the continuation of her classification as a ‘paramedic’ under the Award (that is, the maintenance of her appointment to a position classified as a ‘Paramedic Year 2’ under that instrument).

41. It should be noted, in that respect, that the adjudication of the issues in the present proceedings must be undertaken by reference to the manner in which the parties framed their respective cases. That confinement is necessary because it prevents, inter alia, procedural unfairness to the opposing party who may otherwise not have the opportunity of knowing the case against them or be able to take steps to meet it: see, for example, Dare v Pulham (1982) 148 CLR 658 at 664 and Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 per Mason CJ and Gaudron J (although in those decisions the notion was discussed as it concerns the pleadings of the parties rather than their cases at large). As such, my consideration of the second declaration sought in the amended application will be constrained by the manner in which the applicant prosecuted her case and the reply articulated by the respondents (see [97] and [101] below).

42. The respondents agreed that the ultimate issue for adjudication in the present proceedings was whether the applicant was a ‘paramedic’ within the meaning and for the purposes of the Schedule at the time of her injury. However, they substantially diverged from the applicant in the manner by which they argued that question should be determined.

43. As mentioned earlier, the respondents submitted that the applicant’s classification under the Award was not determinative of whether she was a ‘paramedic’ within the meaning and for the purposes of the Schedule. It was submitted that a construction of the term ‘paramedic’ based solely upon an injured worker’s classification would “capture as a paramedic a range of people” that the legislature did not intend to protect from the effects of the Amendment Act (such as Educators and those working in the Performance Improvement Team or Professional Standards Unit). They submitted that the term ‘paramedic’ in the Schedule should be construed by reference to the duties performed by the subject employee at the time of their injury.

44. In the result, the respondents’ contended that it did not matter that, at the time of her injury, the applicant:

1. Had a current clinical certificate to practice with the ASNSW;

2. Was paid at the pro rata rate for a ‘Paramedic Specialist Year 1’ under the Award and had her conditions of employment embodied in the Award;

3. Was employed by the New South Wales Government in the service of the Crown within the ASNSW; and

4. Continued to be entitled to the death and disability benefits applicable to paramedics whilst working as a Health Advisor due to the policy of ASNSW to classify secondees to non-front line duties as paramedics for the purposes of the Award.

45. By that submission, the respondents conceded that those factual conditions applied at the time of the applicant’s injury.

46. The attention that the respondents fixed upon the ‘duties’ of paramedics, in this respect, requires further discussion by reference to two elements of their submissions.

47. First, in written submissions, the respondents contended that, in order to fall within the meaning of the word ‘paramedic’ in the Schedule, an employee must be relevantly qualified and included in “on-road rostering arrangements” or “performing ‘in the field’ paramedic/emergency response duties”. The duties identified in the second part of their proposed definition were variously described by counsel for the respondents in oral argument as ‘operational’, ‘front-line’ or ‘on-road’ paramedic duties, but no further elaboration was provided by the respondents. The respondents’ contended that the cluster of duties, so described, represented the duties of paramedics which were said to qualify the meaning of the word ‘paramedic’ in the Schedule. Paramedics performing that cluster of duties, as I have described it, were given a global title by the respondents, namely, ‘operational paramedics’.

48. Secondly, whilst attended by some ambiguity, it would seem that the encompassment by the respondents of paramedics included in on-road rostering arrangements in the first part of the definition proposed expands the scope of the duties that the respondents contend govern access to the protections of the Schedule beyond paramedics performing emergency front-line duties to those rostered to but not performing such duties and paramedics undertaking non-emergency duties. This is best illustrated by referring to the evidence of the ordinary duties of a paramedic.

49. The applicant’s letters of appointment as a part-time ambulance officer in 2002 and 2003 stated that the “conditions of duty” include, inter alia, “general ambulance duties”. Although that phrase was not defined in the letters, it is apparent, upon the other evidence in these proceedings (in particular the position description of ‘paramedic’ issued by the ASNSW), that those duties comprise the following classes of work:

1. Out of hospital, first contact clinical emergency and non-emergency care; and

2. Medical retrieval and health related transport for sick and injured people in an emergency and non-emergency setting.

50. With the benefit of that outline, it would seem to follow that the respondents contemplated that the Schedule also applied to paramedics exercising duties in the following circumstances:

1. Paramedics who were performing non-emergency on-road duties at the time of injury.

2. Paramedics who were rostered to perform on-road work but were not actually discharging those functions at the time of an injury.

51. It follows that the respondents should be taken as incorporating within the meaning of paramedic for the purposes of the Schedule paramedics who are not actually performing on-road emergency or front-line duties (to employ some of the adjectival qualifications upon which the respondents relied) at the time of an injury or, indeed, on-road duties of a non-emergency nature (in the circumstances described in [50] above). That conclusion will have some significance for the questions of construction later considered, including the utilisation of the extrinsic material relied upon by the respondents, namely, the speech of Mr David Shoebridge MLC in Parliamentary debates.

52. For the remainder of this judgment, references to ‘paramedic’ or ‘a paramedic’ shall concern either the word used in the Schedule, the classification ‘paramedic’ defined in the Award or the position description or classification of paramedic given to the applicant by ASNSW. The expression ‘operational paramedic’ or ‘operational paramedic duties’ shall be employed as a shorthand means of describing the qualification vis-à-vis duties relied upon by the respondents in their contentions as to the second declaration.

53. Those submissions did not amount to a concession as such that the applicant was appointed to a position which was classified as a ‘paramedic’ under the Award at the time of her injury.

54. However, it may be readily concluded (as discussed immediately below) that the first five propositions outlined in [39] are correct having regard to the evidence in these proceedings.

55. The applicant brought evidence in the form of an affidavit she swore on 29 October 2014. The respondents cross-examined the applicant on her evidence and brought further evidence in the form of affidavits from Mr Noel Quinn, Senior Industrial Relations Specialist employed by the first respondent, and Mr Hendrik Kruit, Acting Senior Manager HACS (to which the position description of a paramedic earlier referred to was annexed) (sworn 17 December 2014 and 11 December 2014 respectively). That evidence comprised, inter alia, an examination of the terms and history of the Award which is apposite to the present discussion.

56. By way of introduction, in that respect, it may be noted that the Award has regulated the conditions of employment of employees of the first respondent since it was made by consent in 1998: Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 (‘ASNSW v HSU’) at [14].

57. As noted above, at the time of the applicant’s engagement with the ASNSW, the Operational Ambulance Officers (State) Award published in July 1998 regulated the terms and conditions of employment of ambulance officers (see cl 45(c)). That award provided a classification structure consisting of ‘patient transport officers’, ‘ambulance operations centre officers’, ‘ambulance officers’ and some senior positions. By cl 5 and Pt B (Table 1) of the award, there were established two grades within the classification ‘ambulance officer’ as well as definitions of the respective classifications by grade.

58. Those ambulance officer classifications were defined in cl 5 as follows:

"Ambulance Officer - Grade 1" means an employee who, during his or her second third year of Service, is required to undertake and successfully complete the requirements for appointment as an Ambulance Officer Grade 2 during this period at a time determined by the Service.

"Ambulance Officer - Grade 2" means an employee who has successfully completed the requirements as set out for Ambulance Officer Grade 1 and who is in his or her fourth or subsequent years of service and who is appointed to an Ambulance Officer position identified as such by the Service.

59. The applicant became classified as an ‘Ambulance Officer – Grade 2’ under that award.

60. A further award was made in 2005 by Boland J (published 16 June 2006 Vol 359 NSW IG at 948). It bore the same title and had the same classification structure as the predecessor award.

61. The 2008 Award rescinded and replaced that award and, as noted above, varied the classification structure therein. Clause 5 and Section 8 of the 2008 Award (described as “Monetary Rates” and resembling a ‘Part’) established the new classification structure, which replaced the existing ‘ambulance officer’ classification with ‘paramedic’ classifications at various levels (there was a separate classification structure for Ambulance Operations Centre Staff).

62. Section 9 of the 2008 Award provided for transitional arrangements into the new classification structure such that, for example, an existing ‘Ambulance Officer Grade 2 Year 1-3’ became a ‘Paramedic Year 1’ and an ‘Ambulance Officer Grade 2 Year 4-7’ became a ‘Paramedic Year 2’ under the Award. It follows that, by those transitional arrangements, the applicant’s classification was altered from ‘ambulance officer’ to ‘paramedic’. Given her standing as an ‘Ambulance Officer – Grade 2’, it may be inferred she transitioned to the classification ‘Paramedic Year 2’ from the date of the operation of the 2008 Award, namely, 12 September 2008.

63. The classification structure in the 2008 Award was retained in the Award.

64. Under the Award, ‘employee’ was defined as “an Officer and/or Operational Ambulance Officer of the Service who is employed pursuant to this Award”. ‘Officer and/or Operational Ambulance Officer’ is defined as “an employee of the Service who is employed pursuant to this Award”.

65. The Award regulated the conditions of those employees in accordance with particular classifications into which the subject employees were categorised. Clause 5 of the Award retained the title “Classifications”. That clause continued to provide the definitions of each employment classification for which provision was made in ‘Section 8: Monetary Rates’ and, in particular, in Tables 1A and 1B by which the wages for each classification were set. Employees were appointed to positions which corresponded to classifications in the Award and were remunerated accordingly.

59. Clause 5(b)(Division 2), in conjunction with Section 8, provided for several classifications of paramedic, namely, Trainee Paramedic; Paramedic Intern; Paramedic; Paramedic Specialist and various senior positions. It may be noted that there is a separate classification for Patient Transport Officers which appears in cl 5(a)(Division 1).

60. I return, now, to consider each of the aforementioned contentions of the applicant as recorded in [39] above. (This discussion will also serve as an explanation for the observations made at the outset of this judgment.) In addressing those matters I shall deal cumulatively with the first to fourth contentions (save for the second part of the fourth contention dealing with the subsistence of the applicant’s classification as a paramedic during the secondment, which I will address separately).

61. The first contention was not disputed by the respondents and was clear on the evidence in the proceedings.

62. The respondents conceded that the applicant performed the duties of a paramedic until her engagement as a Health Advisor.

63. The applicant was employed by the first respondent within the service of the ASNSW as an ‘Ambulance Officer’. The applicant’s original contract of employment was not in evidence in these proceedings, but two later letters of offer were annexed to the applicant’s affidavit. The letters, dated 10 May 2002 and 27 November 2003, offered the applicant the positions of “Ambulance Officer Permanent Part-Time 24 Hours” and “Permanent Part-Time Ambulance Officer” (20 hours) respectively (corresponding to her reversion to part-time work). The latter correspondence stated that the applicant was to be remunerated at the salary prescribed for an ‘Ambulance Officer Grade 2, Year 3’ under the Award.

64. At the time of the applicant’s employment with the first respondent, the nomenclature ‘Ambulance Officer’ was the descriptor for persons appointed to perform duties which involved, inter alia, emergency, out of hospital clinical care and ambulance services in accordance with the classification system fixed by the Award. As noted above, the nomenclature for such persons subsequently changed by virtue of the operation of the Award to that of ‘paramedic’ (with various classification levels therein).

65. The evidence does not make clear why that reform was undertaken or the effects thereof, but it is clear that the transitional arrangements under the Award had the effect of transferring all former ambulance officers, so described, into the new position of paramedic (albeit at various classification levels dictated by the transitional provisions within the Award) from September 2008.

66. The culmination of those factors result in the comfortable conclusion (based upon the ordinary established principles for the determination of whether a contract has come into existence) that there existed a contract of employment between the applicant and the first respondent, commencing in September 2000, by which the applicant was appointed as an ambulance officer in accordance with the requirements of the Award. The title of that position was varied by the operation of the Award in 2008 and the established nomenclature for ambulance officers became ‘paramedic’ thereafter. On the evidence in these proceedings, nothing arising from that change disturbed the contract of employment. If there were changes in the duties performed by the applicant, they were not disclosed on the evidence. Changes to the manner in which such emergency services personnel discharged their duties (or the skills they exercised) would not, in the ordinary course, have required or involved any change in their contract of employment, particularly if arising from award variations. In any event, no such variation was demonstrated in this case (or sought to be established by the respondents).

67. Thus, the applicant’s contract of employment as a paramedic subsisted as at the time she took up her role as Health Advisor (and continued, as I will find in my discussion of the fourth contention, during that engagement).

68. I note, in passing, that where I refer to the principles relevant to the determination of whether a contract has come into existence I intend to refer to the “classical theory of contract based on offer and acceptance”, which depends upon “a true construction of the relevant communications which have passed between the parties and the effect (if any) of their actions pursuant to those communications”: Director-General, Department of Health (NSW) v NSW Nurses’ Association [2011] NSWIRComm 111 at [95] - [97]; see, also, British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 at 509.

69. As to the second contention, by virtue of the insertion into the Award in 2008 of the paramedic classification and accompanying transitional arrangements alone, the applicant was a paramedic for the purposes of the Award. Further, the applicant was correct to submit that, as a result of her employment as an ambulance officer, and later as a paramedic, she satisfied the definition of ‘paramedic’ contained in the Award.

70. The expression ‘paramedic’ was defined in cl 5(b)(iii)(Division 2) of the Award in the following terms:

Paramedic means an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a paramedic and who is appointed to an approved paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the re-issue of their clinical certificate to practice every three (3) years.

78. That definition may be broken down into the following constituent elements:

1. An employee;

2. Who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a paramedic;

3. Who is appointed to an approved paramedic position; and

4. Who undertook and successfully completed further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the re-issue of their clinical certificate to practice every three (3) years.

79. I have found above that the applicant was at all material times “an employee” of the first respondent within the service of ASNSW.

80. The meaning of the expression “approved paramedic position” was not the subject of submissions and may seem slightly opaque. However, when considered with the other elements of the definition and the classification scheme fixed by the Award, its meaning is readily ascertainable. The Award prescribed the classification structure for employment with the ASNSW such that employment with the first respondent within the service of the ASNSW falling within the scope of the Award must conform with that classification structure. To that extent, the Award dictates appointments which may be made by the employer as it governs the designations which may be given to employees within the service of the ASNSW and their rates of pay and conditions. However, the definition recognises that the requirement and the terms of training and experience for paramedics is the province of the ASNSW. So, too, is the determination of whether a position will be required (the establishment of various paramedic positions) and filled within the service. Hence, the notion of “approved paramedic position”.

81. In the result, the definition under the Award (in conjunction with its substantive provisions) operates coextensively with the first respondent employing a paramedic in the service of ASNSW by governing the classification of an employee as a paramedic (both in a general sense and by classification level) and the nature and terms of that employee’s engagement.

82. Having regard to that analysis, the inescapable conclusion on the evidence in the proceedings is that the applicant was appointed to an approved paramedic position as she was employed in a position classified under the Award (respectively as an ambulance officer and paramedic) which was established by the ASNSW (it may be assumed, regularly, in the absence of contrary evidence) and treated by ASNSW in all respects as a paramedic position (circumstances which, as I will discuss, prevailed during the applicant’s engagement as a Health Advisor and at the time of her injury).

83. The remaining elements of the definition in the Award represent the counterparts to the abovementioned concessions of the respondents and are supported by the evidence in these proceedings. It is apparent, therefore, that the applicant satisfied each element of the definition of ‘a paramedic’ under the Award and was, therefore, a paramedic for the purposes of that instrument.

84. As such, the applicant was classified as a ‘paramedic’ for the purposes of the Award and held that position and classification at the time of her engagement as a Health Advisor. To use industrial parlance, that represented her substantive position under her contract of employment at the time of her engagement (which corresponded with her classification under the Award). As conceded by the respondents, the conditions of her employment, including her remuneration, comprised those established in the Award for that classification.

85. The Award, therefore, applied to the applicant and, as a matter of law, prescribed, by its terms, the conditions of her employment by superimposing the subject conditions over her contract of employment (see Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 420 (‘Byrne’); see, also, Re Pacific Coal Pty Ltd and Others; Ex Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346 at [120], per McHugh J (‘Pacific Coal’) and s 12 and Pt 2 of Ch 7 of the IR Act). As the obligation to observe the provisions of the Award arises by “force of statute”, rather than incorporation into the contract (see Pacific Coal at [215] per Gummow and Hayne JJ), those obligations must endure so long as the application is retained in her appointment as a paramedic. The applicant was correct in her third contention.

86. The second issue raised by the fourth contention is essentially whether the applicant maintained her employment as a paramedic during her service as a Health Advisor and, in particular, at the time of her injury, notwithstanding the fact that, as I will later find, the duties of a Health Advisor are different to those of a paramedic performing operational duties.

87. The respondents did not concede, as such, that the applicant’s substantive appointment remained that of a paramedic at the time of her appointment as a Health Advisor, but there are a number of indicators which, in addition to my discussion of the operation of the Award, would confirm that, as I have noted above, an affirmative answer should be given to the applicant’s fourth contention.

88. That affirmative answer is based upon the following factors:

1. As accepted by both parties, the applicant assumed the role of Health Advisor as a secondment. No suggestion was made that the role, in that respect, departed from the broadly understood meaning of that expression as a temporary transfer to another post or responsibility during which period the terms on which the employees’ substantive employment as contracted are maintained (see the discussion by Allsop J in Eaton v Overland [2001] FCA 1834 at [190]-[191]). In any event, the evidence confirmed that the arrangement by which the applicant undertook the role of Health Advisor conformed with that description. The applicant’s engagement was only for a temporary period under a secondment to the role of Health Advisor with the ASNSW (upon her evidence, which I accept, that role was to continue for a period of 12 months). The evidence of Mr Kruit revealed that the applicant would maintain her clinical certificate to practice during that period “as the paramedic could revert back to operational paramedic work at the conclusion of their secondment” (that is, return to front-line duties). In the case of the applicant, she deposed her intention to undertake part-time operational paramedic duties whilst engaged as a Health Advisor.

2. In accordance with the established practice of the ASNSW, where paramedics temporarily undertook non-operational duties they continued their appointment and classification as paramedics so as to retain that status under the Award. In other words, the Award continued to operate upon her employment in a way referable to her position as a paramedic. Mr Kruit deposed that the purpose of this practice was both to ensure that the employee would continue to receive death and disability benefits pursuant to the Ambulance Service of NSW Death and Disability (State) Award and could revert back to operational duties at the completion of their secondment. Mr Quinn confirmed that one reason paramedics continued to be engaged under the Award was in order to “protect their entitlements to Death and Disability coverage” (those paragraphs of his affidavit were provisionally allowed, but should be admitted as relevant in this context). It may be noted, in this respect, that the applicant’s death and disability payments continued to be deducted from her pay whilst she was engaged as a Health Advisor and maintained her classification as a ‘paramedic’.

3. The applicant was remunerated at the rate provided for a ‘Paramedic Specialist Year 1’ under the Award on a pro rata basis. Whilst that arrangement may, in some circumstances, simply reflect an administrative convenience (whereby a rate for a position is derived from a comparable position), it appears that, in the aforementioned circumstances of the present case, the applicant was paid on that basis in consequence of the maintenance of the appointment to her substantive position.

4. Further, there was no suggestion in the applicant’s letter of offer of engagement as a Health Advisor that undertaking that role would terminate her existing employment (and appointment) or preclude the continuation of her classification as a ‘paramedic’ under the Award. Nor was there a suggestion that a new or fresh appointment was being made by the first respondent. In any event, s 73(1)(b) of the Government Sector Employment Act 2013 (‘the GSE Act’) provides that an appointment to a position in the government sector, which includes the NSW Health Service (see s 3 of the GSE Act), will not be surrendered or vacated as a result of appointment to an additional position such that the appointment to the original position will be maintained in spite of a subsequent appointment to an additional position.

5. It was apparent, upon that evidence, that when workers whose employment was contracted as a paramedic were seconded to other duties, the ASNSW maintained their substantive paramedic positions for the reasons described above (regardless of the duties they were seconded to perform).

89. Hence, the applicant was correct to submit that her contract of employment, under which she was appointed to a position classified as a ‘paramedic’ caught by the Award, subsisted during the period that she was engaged as a Health Advisor.

90. I then turn to the fifth contention.

91. The applicant’s continued employment as a paramedic (and the maintenance of such a position by the ASNSW during her secondment) meant that the Award could not be contracted out of, save for by providing superior benefits to the applicant, and the first respondent was thereby required to maintain her substantive classification as a ‘paramedic’ by the Award (see Byrne at 421 and Construction, Forestry, Mining and Energy Union v Mammoet Aust Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 at [66]).

92. That conclusion is derived from the fact that the maintenance of the applicant’s appointment to a position which corresponded with the definition of ‘paramedic’ and ‘paramedic’ classifications in the Award necessarily activated the Award such that it operated to govern the terms and conditions of that appointment. The fact that the applicant may not have been discharging some or all of the functions associated with that position does not displace that conclusion as it is the appointment, not the discharge of particular duties, against which the Award definition and ‘Area, Incidence and Duration’ clause (cl 47(b)) operated.

93. That requirement is confirmed by the language of the IR Act. Section 12(1) of that Act provides that “an award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award”. As with its predecessors, the IR Act does not make the statutory rate of wages part of the contract of employment, but rather creates distinct remedies for failure to comply with the obligations arising from an award (see Byrne at 456). In particular, in Pt 2 of Ch 7 of the IR Act, s 365 provides that “an industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable”. Section 366 provides that, in circumstances where there is an industrial instrument that fixes the minimum rate or amount of remuneration for work done under the contract, “an industrial court may, on application, order an employer to pay any amount payable to a person under a contract relating to the employment of the person that remains unpaid”.

94. It follows that the fifth proposition is also made out (as there had been no departure from her status as a ‘paramedic’ at the time of her injury).

95. Thus, in my view, and in conformity with the first five propositions upon which the applicant’s case was premised, the applicant was employed by the first respondent within the service of ASNSW. She satisfied the definition of paramedic under the Award and was, thereby, classified as the same. Her appointment and classification were not disturbed by her secondment as a Health Advisor (save that her paramedic sub-classification was as a ‘Paramedic Specialist’ rather than a ‘Paramedic Year 2’). In that respect, the employment of the applicant was governed by the Award at the time of her injury and she was, thereby, classified as a ‘paramedic’ thereunder.

96. In terms of the second declaration sought in the amended application, it may be accepted, therefore, that at the time of her injury “the applicant continued to be employed by the first respondent as a ‘paramedic’”. That conclusion does not, however, necessarily resolve the ultimate issue in the present proceedings, namely, whether the applicant was a ‘paramedic’, within the meaning and for the purposes of the Schedule having regard to the manner in which the respondents framed their case.

97. As noted above, the respondents contended that, regardless of whether the applicant maintained her substantive position and continued to be classified as a ‘paramedic’ under the Award at the time of her injury, the duties that she was performing in her role as a Health Advisor at that time were not operational paramedic duties and, in consequence, she was not a ‘paramedic’ for the purposes of the Schedule. In their words, “the important discriminator is the work being undertaken, not the descriptor held for the purposes of the Award”.

98. The applicant conceded that she was not an “operational paramedic” at the time of her injury; however she maintained that her role as a Health Advisor involved some degree of emergency response. Nonetheless, as I earlier discussed, by the refinement of the issues in the proceedings, the applicant did not rely on any aspect of her duties as a Health Advisor to sustain her contention that the Schedule applied.

99. In my view, the factual premise of the respondents’ contention, namely, that the duties the applicant performed whilst seconded as a Health Advisor were different to the duties of an operational paramedic, must be accepted for the following reasons:

1. The position of Health Advisor was distinct from that of paramedic by virtue of title and entry requirements. The significance of those differences is evidenced by the fact that the applicant was required to apply for the position of Health Advisor whilst occupying the role of a paramedic and was only eligible for the role by virtue of her qualifications as a NSW (State) List A Registered Nurse Qualification with clinical experience.

195. This construction does not require, as the respondents alluded, an assessment of what the ‘benefit’ to an injured worker would be but rather, a liberal interpretation of the nominated category of worker so as not to unduly limit or restrict the benefit afforded by the Schedule. Nor does it conflict with the undoubtedly correct submission made by the respondents that a liberal construction cannot alter the meaning of the text, as the construction is consistent, in my view, with the language of the provision.

196. This discussion naturally leads to the issue of the purpose of the provision upon which the respondents placed particular emphasis.

197. It is important to commence the discussion of purpose by briefly revisiting the authority in Certain Lloyds where French CJ and Hayne J observed that the “determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted” (at [25]). Their Honours also warned against the second, and related, danger of making an a priori assumption about the purpose of the statute derived from what is seen to be the “desired or desirable reach or operation of the relevant provisions” (at [26]).

198. In my view, the approach contended for by the respondents trespasses into the forbidden field about which their Honour’s gave warning. It is predicated upon what is, as I have found, a view of the purpose of the provision which is not supported by the text or context of the provision. The respondents’ contention relied, contrary to authority, upon an assumption as to the intention of the legislature in enacting the Schedule (partially derived from a misunderstanding of the comments of Mr Shoebridge), namely, that the purpose of the Schedule was to protect only those paramedics who were engaged in operational duties especially in emergency settings.

199. The purpose of the Schedule may be identified in three ways: “an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials” (Certain Lloyds at [25]).

200. Although an express statement of purpose appears in s 3 of the WIM Act, that provision is too broad to assist in determining the purpose of the Schedule.

201. The text and structure of the provision revealed the purpose and mischief sought to be remedied in the manner described above.

202. The extrinsic material in the evidence in these proceedings did not, as I have explained, illuminate the purpose of the provision beyond that which is evident in its text and structure. The comments of Mr Shoebridge could not and do not necessitate a departure from that view.

203. The purpose of the Schedule and the mischief sought to be remedied, so described, does not, therefore, support the construction contended for by the respondents and, in fact, may be readily attained by the construction of the term ‘a paramedic’ by reference to an employee’s appointment in that position (which is consistent with my analysis of the language of the provision).

204. The purpose of the Schedule is to excise from the operation of the Amendment Act three key classes of emergency services personnel appointed to the service of the State in positions holding a title well-known to the community. There is nothing in the savings provision erected through the Schedule which would indicate an intention in the legislature to remove the benefit conferred by the Schedule in circumstances where those classes of emergency worker were temporarily removed (by secondment or otherwise) from the performance of front-line duties. In one sense, this very consideration is recognised by the respondents’ acceptance that the provision would reach a paramedic rostered to perform paramedic duties whether such duties were performed or not. The legislature intended to protect the workers in each agency performing emergency services, a class that was readily determined by their appointments by such agencies who controlled entry by the setting of requisite qualifications for each position and appointment process.

205. Whilst the emergency and lifesaving duties of this class of worker will no doubt have contributed to the appetite of the legislature to provide the exemption in the Schedule, it does not follow, and the text of the Schedule does not support, a conclusion that the legislature constructed a savings provision so as to only shield that class of worker when performing those duties for the understandable reason, as is clear from the evidence in this case, that the members of the subject classes may not, in the ordinary performance of their duties, from time to time, be engaged in the performance of front-line or emergency duties per se (a circumstance that may be readily hypothesised to extend to police officers and firefighters).

206. The applicant, in her temporary position as a Health Advisor, fell within the field covered by the Schedule whilstsoever she maintained her appointment and classification as a ‘paramedic’ in the employment of the first respondent within the service of the ASNSW. That the ASNSW chose to maintain that appointment whilst the applicant was under secondment for various administrative reasons does not undermine the efficacy of that conclusion. The legislative intention must be derived from the text, context and purpose of the subject provision. In the final analysis, the conclusion I have reached, in that respect, is broadly consistent with the obiter expressed by Deputy President Roche in Stockwell and Boland J in the AWU case (at [97]).

207. Finally, I would observe that this approach to construction would not, as the respondents contended, excessively broaden the scope of the provision beyond the legislative intention. The Schedule covers only those who are appointed or designated to a paramedic position at the behest of the ASNSW for the first respondent.

208. In any event, upon the above analysis, it is not clear that there is a significant gap between persons falling within the Schedule in accordance with this construction and those performing or rostered to perform operational duties. There is no evidence, in that respect, to demonstrate why inclusion of the former category excessively broadens the term ‘paramedic’ beyond what the respondents’ coin operational paramedics. The reference by the respondents to Educators and those working in the Performance Improvement Team or Professional Standards Unit does not advance that situation.

Conclusion

225. The declaratory jurisdiction of the Court under s 154 of the IR Act is discretionary: see ASNSW v HSU at [7]-[8] and PSA v SoT at [168]-[181].

226. I am disposed to refuse the first declaration sought (to the extent that it was pursued) for the reasons earlier given.

227. As noted above, the third declaration in the amended application was not pressed.

228. As to the second declaration sought, I find that, upon the proper construction of the Schedule, the meaning of the term ‘paramedic’ in the phrase in the Schedule denotes an employee of the first respondent within the service of the ASNSW who is classified as a paramedic by virtue of the operation of the Award (and, by necessary connection, is appointed to an approved position within the ASNSW). As I have found, the applicant was such an employee at the time of her injury and, hence, the exemption from the Amendment Act under the Schedule applied to her. For the reasons given above, that conclusion is not displaced, in my view, by the fact that the applicant was not performing or rostered to perform operational paramedic duties (as defined by the respondents) at that time.

229. Thus, the applicant was a paramedic at the time of her injury within the meaning and for the purposes of the Schedule, irrespective of her secondment to the role of Health Advisor.

230. The parties made no submissions as to the proper exercise of the discretion with respect to the second declaration. It may be assumed that reflects the fact that, in contrast to the first and third declarations discussed above, a declaratory order broadly in the terms of the second declaration would plainly resolve the legal controversy between the parties in the present proceedings and have significant utility in that respect.

231. It will be recalled that no jurisdictional issues were raised as to the second declaration.

232. That effective concession by the respondents (given the non-pursuit of issues of that character after amendment to the original application), whilst not binding on the Court, is, having regard to the controversy agitated before the Court, in my view, sound. In light of those concessions, I will only briefly elaborate upon this observation.

233. Section 154 of the IR Act provides that the Court may make declarations in relation to “a matter which the Commission (however constituted) has jurisdiction”.

234. In PSA v SoT the Court stated (at [157]–[160]) as follows:

157 Section 154 is constrained by the words "in relation to a matter in which the Commission (however constituted) has jurisdiction". The phrase "in relation to" is wide but imports a requirement for a relationship between subject matters: PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 330 - 331. In the context of s 154, the connection or association is between the subject matter of the proceedings for declaratory relief and "a matter" over which the Commission and the Court has jurisdiction. However, the scope of the jurisdiction is, nonetheless, wide as "the matter" referred to in s 154 is not dependent upon the existence of extant proceedings. The requisite connection is established if the subject matter of the declaratory proceedings falls within the powers generally available under the Act to the Commission or Court.

158 Hungerford J elucidated the breadth of this provision in Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 at [76]:

My conclusions in favour of there being jurisdiction to make the declarations sought may be stated relatively shortly. The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. In Atlantis Relocations, the majority of the Full Bench (Glynn and Maidment JJ, Marks J concurring) put it, in a manner I would respectfully adopt, in this way (at p 4) :

The declaratory jurisdiction arises "in relation to a matter" in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s 154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings.

159 Noting that the respondent has raised a particular issue as to the jurisdiction to grant declaratory relief which will require further assessment, the subject matter of the present proceedings is, in my view, otherwise plainly one over which the Court possesses jurisdiction under s 154 of the Act.

160 This is because the subject matter of the present controversy is clearly a matter over which the Commission, whether constituted as the Commission or as the Industrial Court, has jurisdiction. I accept, in this respect, the following submissions by the PSA:

11. The Commission's jurisdiction includes the capacity to deal with "industrial disputes" (s 130) which are a "dispute about an industrial matter" or make awards setting "conditions of employment" (s 10) including about "industrial matters". The Commission (when constituted as the Industrial Court) has jurisdiction with respect to the enforcement of industrial instruments, including awards, by way of the imposition of civil penalties (s 357), recovery of underpayments (ss 358 and 365) or injunctions to restrain from further contraventions (s 359).

12. A declaration as to the interpretation or application of an award of the Commission is plainly related to a "matter" within the jurisdiction of the Commission constituted both as the Commission and the Industrial Court susceptible to declaratory orders under s 154 of the Act.

235. Here, the controversy over the scope and operation of the Award and the related question of whether the applicant was appointed to a position of paramedic at the time of her injury was central to the resolution of the controversy to which the second declaration relates. That ‘matter’ is amenable to the jurisdiction of the Commission as a matter concerning the interpretation and application of an Award (and to the Court in the making of a declaration as to the same) and the enforcement of industrial instruments. An interesting question (which I do not resolve) would be whether the present controversy would be caught by the general definition of an ‘industrial matter’ in s 6(1) of the IR Act.

236. In the circumstances, it is appropriate, in my view, to exercise the discretion reposed in this Court pursuant to s 154 of the IR Act to make a declaratory order consistent with the second declaration. However, I will give an opportunity to the parties to consider the final form of that order to be made having regard to the terms of this judgment. In particular, there would appear to be no reason, in light of the issues raised in the proceedings, why the order should temporally extend beyond a specification of the date of injury of the applicant.

237. The applicant is to file and serve draft orders reflecting the terms of this decision and, if appropriate, any related submissions (as to the form of the orders) within 14 days. The respondents shall have an opportunity to file and serve any submissions in reply as to the form of the orders within 14 days of the service of those draft orders and any submissions relied upon by the applicant relating thereto. In accordance with the same timetable, the parties shall separately file and serve any application as to costs and submissions as to the same.

238. The disposition of orders and costs will be dealt with on the papers unless the Court forms the view that a hearing will be necessary in light of the submissions received or there is an application from a party for the matter to be listed for hearing as to either the form of the orders or costs (in which case the application should specify the subject matter about which the hearing is sought).

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Decision last updated: 06 August 2015