State of New South Wales v Stockwell

Case •

[2017] NSWCA 30

•

01 March 2017

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: State of New South Wales v Stockwell [2017] NSWCA 30
Hearing dates: 31 January 2017
Date of orders: 01 March 2017
Decision date: 01 March 2017
Before: McColl JA at [1],
Leeming JA at [89],
Simpson JA at [90]
Decision:

(1)   Extend the time within which the State of New South Wales may file the notice of appeal to 1 August 2016.

 

(2)   Direct the State of New South Wales to file the notice of appeal in the form of the draft in the White Book within 7 days.

 

(3)   Appeal dismissed.

 (4)   The State of New South Wales to pay the respondent’s costs of the appeal and the application for an extension of time to appeal.
Catchwords:

INDUSTRIAL LAW – New South Wales – statutory provisions relating to public sector employees – Workers Compensation Act 1987 Sch 6 – Workers Compensation Legislation Amendment Act 2012 (NSW) Sch 12 Pt 19H cl 25 – changes to workers compensation scheme – exemption of police officers, paramedics and firefighters – whether respondent “paramedic” within meaning of cl 25

 

INDUSTRIAL LAW – New South Wales – awards and agreements – appeal from Workers Compensation Commission – where primary judge confirmed finding of an arbitrator that respondent a “paramedic” within cl 25 at date of workplace injury – where respondent employed by Ambulance Service of NSW as Ambulance Operations Officer or “paramedic” under Operational Ambulance Officers (State) Award – where respondent suffered psychological injury in the course of employment as Ambulance Operations Centre Officer – where at date of injury respondent had not undertaken courses or completed examinations required by proviso to classification provision in award – whether in consequence respondent no longer held status or designation as an “Ambulance Officer” or “paramedic”

 

INTERPRETATION – general rules of construction of instruments – interpretation of proviso in industrial award setting out requirements for Ambulance Officer or “paramedic” – proviso required successful completion of courses and examinations every two years – whether failure to undertake courses or complete examinations required by proviso to classification provision resulted in loss of status as “Ambulance Officer” or “paramedic”

PROCEDURE – extension of time to file notice of appeal – where notice of intention to appeal filed – where miscalculation of due date for filing notice of appeal – where no prejudice suffered by respondent – Uniform Civil Procedure Rules 2005 (NSW) 51.10
Legislation Cited: Civil Procedure Act 2005 (NSW)
Health Services Act 1997 (NSW)
Industrial Relations Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Workplace Injury Management and Workers’ Compensation Act 1998 (NSW)
Cases Cited: Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4
Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10
Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806; [2003] HCA 55
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; [1940] NSWStRp 9
Brimelow v Sharpe [2012] NSWCA 345
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Chapman-Davis v State of New South Wales [2015] NSWIC 10
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Commonwealth Custodial Services Ltd v Valuer General (2007) 156 LGERA 186; [2007] NSWCA 365
Daley v SAS Trustee Corporation [2016] NSWCA 111
Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades v New South Wales Fire Brigades Employees’ Union (2008) 180 IR 170; [2008] NSWIRComm 158
George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498
Jobson v The Owners – Strata Plan No 66870 [2015] NSWSC 776
Kucks v CSR Ltd (1996) 66 IR 182; [1996] IRCA 166
Northern NSW Local Health Network v Heggie [2013] NSWCA 255
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23
Re Pacific Coal Pty Ltd and Others; Ex Parte Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346; [2000] HCA 34
Saggers v Sydney Market Authority (1988) 66 LGRA 42
State of New South Wales v Chapman-Davis [2016] NSWCA 237
Stockwell v State of New South Wales [2015] NSWWCC 332
The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83
Texts Cited: Operational Ambulance Officers (State) Award, NSW Industrial Gazette – Vol 359, 16 June 2006
Operational Ambulance Officers (State) Award, NSW Industrial Gazette – Vol 368, 26 June 2009
Category:Principal judgment
Parties: State of New South Wales (Applicant)
Mark Stockwell (Respondent)
Representation:

Counsel:
Mr S Flett and Dr S Blount (Applicant)
Mr B McManamey (Respondent)

  Solicitors:
Bartier Perry (Applicant)
Whitelaw McDonald (Respondent)
File Number(s): 2016/133783
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Workers Compensation Commission of New South Wales
Citation:
[2016] NSWWCCPD 19
Date of Decision:
05 April 2016
Before:
President Judge Keating
File Number(s):
A2 – 9478/13

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The respondent, Mark Stockwell, worked in the Ambulance Service of New South Wales as a front line Ambulance Officer. He was formally employed by the applicant, the State of New South Wales (SNSW). At all material times his employment was subject to the Operational Ambulance Officers (State) Award (2006 Award).

Mr Stockwell suffered back injuries in the course of his employment and, in consequence, from 2001, became an Operations Centre Officer. As a result of his work in the Operations Centre, he suffered psychological injury with a deemed date of injury of 31 January 2007. On 29 July 2007 he resigned from the Ambulance Service and ceased working on 10 August 2007.

In 2008 the Workers Compensation Commission (Commission) on the basis of findings concerning Mr Stockwell’s psychological injury made an award in his favour for the payment of weekly compensation on the basis of total incapacity.

On 18 March 2013 the SNSW’s insurer issued a notice to Mr Stockwell pursuant to s 54 of the Workers Compensation Act 1987 (NSW) (WC Act) containing a “Transitional Work Capacity Decision” informing him that he was no longer entitled to weekly compensation payments. The notice proceeded on the assumption that amendments to the WC Act effected by the Workers Compensation Legislation Amendment Act 2012 (NSW) (2012 amendments) which came into force on 27 June 2012, generally with retrospective operation, applied to Mr Stockwell. The 2012 amendments altered, inter alia, the amount and duration of entitlements for some injured workers, including to weekly compensation. Police officers, paramedics and firefighters were exempt from the 2012 amendments by virtue of cl 25, Part 19H of Schedule 6 to the WC Act. In response to the notice, Mr Stockwell asserted that he had the benefit of the cl 25 exemption because he was, at all material times, a paramedic.

The SNSW contended Mr Stockwell was not exempt pursuant to cl 25 because, although he was qualified as a paramedic until 31 December 2006, he had lost his certification as such as at the deemed date of his injury because he had not undertaken, afresh, courses or examinations it contended were required by a proviso in the 2006 Award.

On 18 December 2013 Mr Stockwell commenced proceedings in the Commission claiming weekly payments from 18 July 2013. The principal issue for determination was whether Mr Stockwell was a “paramedic” within the meaning of cl 25 of the WC Act and, accordingly, that the 2012 amendments did not relevantly apply. The arbitrator held that Mr Stockwell was a “paramedic”. This decision was confirmed on appeal to the President of the Commission.

The SNSW appealed from the President’s determination pursuant to s 353(1) of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW). Its primary contention was that the President erred in point of law in not holding that Mr Stockwell was not a paramedic within the meaning of that term in cl 25 because he had not complied with the proviso on the deemed date of injury.

The SNSW also sought an extension of time to file the notice of appeal pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) 51.10 because, despite having served a notice of intention to appeal, the time limit for filing the notice of appeal lapsed without the notice of appeal itself having been filed.

Held, granting an extension of time for the SNSW to file its notice of appeal and dismissing the appeal:

per McColl JA (Leeming and Simpson JJA agreeing)

(1) An extension of time to file the notice of appeal should be granted as the failure to comply with the UCPR was due to an oversight, the delay was short and Mr Stockwell did not point to any practical prejudice: [5], [64].

(2) Determining whether, on the facts as found, and the proper construction of the 2006 Award and, hence cl 25, Mr Stockwell held the status of paramedic at the relevant time, involved a point of law: [66].

(3) The meaning of “paramedic” within cl 25 turns on whether a person employed by the Ambulance Service held the designation or status of “paramedic” at the date of his or her injury: [66].

State of New South Wales v Chapman-Davis [2016] NSWCA 237 followed.

(4) On its proper construction the 2006 Award did not indicate that failure to comply with the proviso meant Mr Stockwell did not have the status of a paramedic at the deemed date of injury: [65] – [86].

State of New South Wales v Chapman-Davis [2016] NSWCA 237; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813; George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 applied.

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23; Saggers v Sydney Market Authority (1988) 66 LGRA 42; Kucks v CSR Ltd (1996) 66 IR 182; [1996] IRCA 166; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83; The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446 considered.

Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees’ Union (2008) 180 IR 170; [2008] NSWIRComm 158; Jobson v The Owners – Strata Plan No 66870 [2015] NSWSC 776; Commonwealth Custodial Services Ltd v Valuer General (2007) 156 LGERA 186; [2007] NSWCA 365; Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806; [2003] HCA 55; Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 referred to.

(5) The President did not err in point of law in deciding that at the deemed date of his injury, Mr Stockwell was a “paramedic” and, hence, exempt from the application of the 2012 amendments to the WC Act: [87].

Judgment

  1. McCOLL JA: The applicant, the State of New South Wales (SNSW), appeals pursuant to s 353(1) of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (WIM Act) from a decision of the President of the Workers Compensation Commission, Judge Keating,[1] confirming a finding of an arbitrator, that the respondent, Mark Stockwell, was a paramedic within the meaning of cl 25, Part 19H of Schedule 6 to the Workers Compensation Act 1987 (NSW) (WC Act). The effect of that finding was that the respondent, an Ambulance Operations Officer injured on 31 January 2007 while working in the Ambulance Service of New South Wales[2] was exempt from amendments (2012 amendments) to the WC Act effected by the Workers Compensation Legislation Amendment Act 2012 (NSW) which came into force on 27 June 2012, generally with retrospective operation. [3]

    1. State of New South Wales v Stockwell (No 2) [2016] NSWWCCPD 19 (Primary decision) on appeal from Stockwell v State of New South Wales [2015] NSWWCC 332 (Snell determination).

    2. The SNSW is the applicant because, in substance, as was explained by Walton P in Chapman-Davis v State of New South Wales [2015] NSWIC 10 (Chapman-Davis IC) (at [12] – [14]), the Crown in right of New South Wales formally employed the staff of the NSW Health Service who provide ambulance services pursuant to s 67A of the Health Services Act 1997 (NSW) (HS Act). However it is convenient where context requires to refer to the “Ambulance Service” as that is the entity referred to in s 67A as “compris[ing] those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services” under Chapter 5A (Ambulance Services) of the HS Act.

    3. State of New South Wales v Chapman-Davis [2016] NSWCA 237 (Chapman-Davis) (at [4]) per Gleeson JA (McColl JA and Sackville AJA agreeing, the latter with additional reasons).

  2. The SNSW also seeks an extension of time to file the notice of appeal pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) 51.10. An extension of time is necessary because, despite having served a notice of intention to appeal, the time limit for filing the notice of appeal lapsed without the notice of appeal itself having been filed. The respondent submits the Court would not grant an extension of time to file a notice of appeal on the basis that the appeal has no merit.

  3. An appeal pursuant to s 353(1) of the WIM Act is limited to circumstances in which a party to proceedings before the Workers Compensation Commission constituted by a Presidential member is aggrieved by a decision of that Presidential member in point of law.

  4. The key contention advanced by the SNSW was that although the respondent was classified as a paramedic until one month prior to his injury, he lost that classification because he failed to undertake courses and examinations the relevant award to which his employment was subject required him to undertake.

  5. For the reasons that follow, I am of the view that time should be extended for the SNSW to file its notice of appeal, but the appeal should be dismissed with costs.

Legislative framework

  1. The legislative context in which the appeal arises was explained by Gleeson JA in Chapman-Davis as follows:

“[4]   The changes to the WC Act … were introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) (2012 Amendment Act) which came into force on 27 June 2012, generally with retrospective operation: see cl 3 in Pt 19H of Sch 6 of the WC Act. Those changes affected, among other payments, the amount and duration of entitlements for some injured workers including medical and related expenses. However, police officers, paramedics and firefighters were exempted from the application of the 2012 Amendment Act by cl 25 in Pt 19H of Sch 6 of the WC Act (the exemption), which was inserted into the WC Act by Sch 12 of the 2012 Amendment Act, entitled ‘Amendments relating to savings and transitional provisions’.

[5]   The exemption is 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.” [Emphasis in original.]

  1. At all material times the respondent’s employment was subject to the Operational Ambulance Officers (State) Award (2006 Award). [4] As I understand the parties’ position, it was accepted that while the terms and conditions imposed by the 2006 Award operated with statutory force, they also became terms of the respondent’s contract of employment. [5]

    4.    NSW Industrial Gazette – Vol 359, 16 June 2006. The 2006 Award took effect from 1 December 2005 and remained in force until 30 June 2008: cl 48(c).

    5. Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24; Re Pacific Coal Pty Ltd and Others; Ex Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346; [2000] HCA 34 (at [120]) per McHugh J; (at [215]) per Gummow and Hayne JJ); Chapman-Davis (at [86]).

  2. The Objects of the 2006 Award included the statement that it was “designed to further improve work practices by implementing changes to work arrangements and classifications.” [6] This aspiration was echoed in cl 7 (Work Arrangements) which explained that “[i]n order to develop a more efficient and effective Ambulance Service additional classifications have been introduced to achieve a more generic, flexible structure which enhances greater efficiency in the allocation of employees to various tasks.”

    6.    Cl 3(c).

  3. “Employee” was defined in cl 4 of the 2006 Award to mean “an Officer and/or Operational Ambulance Officer of the Service who is employed pursuant to this Award.”

  4. Clause 5 of the 2006 Award dealt with “Classifications”. It contained numerous (unnumbered) paragraphs either defining a large variety of offices within the Ambulance Service or describing other requirements of an office such as training and payment provisions.

  5. The SNSW’s submissions primarily turned on the following definition in cl 5:

“‘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.

Provided that such an officer shall be required to undertake and successfully complete further instruction/in-service courses and certification examinations as required by the Service every two (2) years.” [Emphasis added.]

  1. I shall refer to the first paragraph as the “primary requirement” and the emphasised passage as the “proviso”. A large number of the other descriptions of positions referred to in cl 5 contained an identical proviso.

  2. In a passage which appeared prior to the above, but also in cl 5, the 2006 Award stated:

“Ambulance Officer Grade 1, Ambulance Officer Grade 2, Station Officer Grade 1, Station Officer Grade 2 and District Officers who are permanently appointed to positions of Ambulance Operations Centre Officer are to be paid the wage applicable for an Ambulance Officer as set out in Table 2 – Operations Centre Staff – Wages, of the said Part B, up to the maximum rate applicable for Ambulance Officer Grade 2 Year 7 and are to be paid, in addition to their wages and allowances, the Operation Centre Allowance as set out in the said Item 2. [7]

The parties agree that this classification will remain a source of alternative duties for injured officers requiring short term rehabilitation as a result of a workplace injury in which case they will need to be provided with training and successfully complete the requirements set out for a Trainee Ambulance Operations Centre Officer.” [8]

7.    Payment provision.

8.    Alternative duties provision.

  1. The parties accepted that item 2 in the payment provision referred to Table 4 (Additional Allowances - Uniformed Operations Centres Staff) of Part B (Monetary Rates) of the 2006 Award which provided:

Item No

Clause

Brief Description

Rate from 1.7.2005

$

Rate from 1.7.2006

$

Rate

from 1.7.2007

$

2

9(a)

Operations Centre Allowance (This Allowance is only applicable to Ambulance Officer Grade 1 & 2, Station Officer Grade 1 & 2 and District Officers. Such an allowance is cumulative on other allowances paid to the employee at the time).

62.60

65.10

67.70

  1. Clause 9(a) of the 2006 Award provided:

“9.    Allowance and Classification Arrangements

(a)   An employee to whom an allowance is paid will cease to have an entitlement to such payment if the employee:

(i)   Fails to successfully complete further instruction/in service courses and/or certification examinations as required by the Service every two (2) years or;

(ii)   Elects not to undertake further instruction/in service courses and/or certification examinations as required by the Service every two (2) years.”

  1. By virtue of transitional provisions in the Operational Ambulance Officers (State) Award (2008 Award) [9] the position of “Ambulance Officer Grade 2” [10] was re-classified as that of a “paramedic” with retrospective operation.

    9.    NSW Industrial Gazette – Vol 368, 26 June 2009.

    10.    The 2006 Award refers to both “Ambulance Officer Grade 2” and “Ambulance Officer – Grade 2”. For consistency, in this judgment I shall use the former descriptor.

  2. Another section of the Transition Arrangements in the 2008 Award identified the pre-2008 position of “Ambulance Operations Centre Grade 2” as being thereafter “Ambulance Operations Centre Paramedic”. Mr McManamey, who appeared for the respondent on appeal, accepted that that may be a more precise description of the respondent’s classification when he joined the Operations Centre. Assuming that to be the case, neither party suggested this detracted from the proposition that the effect of the 2008 Award was that as at the relevant time, the respondent’s classification at least, was that of “paramedic”. However, it is convenient to consider the submissions by reference to the 2006 Award classification, that is to say by use of the description “Ambulance Officer Grade 2”.

  3. There was also a definition of “Paramedic Officer” in the 2006 Award, but neither party suggested it applied to the respondent or in any way detracted from the re-classification effect of the 2008 Award. The SNSW drew attention to it only apparently, to demonstrate that it contained a proviso in the same terms as that relating to an Ambulance Officer Grade 2. As I have pointed out, that proviso was common to many of the classifications of employment in cl 5.

  4. The 2008 Award defined the term “paramedic” in cl 5(b)(iii) in somewhat different terms from the definition of “Ambulance Officer – Grade 2” in the 2006 Award. [11] Again, neither party suggested the Court should have regard to the 2008 definition.

    11.    The 2008 definition is conveniently set out in Walton P’s reasons in Chapman-Davis IC (at [77]).

  5. Two other aspects of the 2006 Award should be noted.

  6. Clause 41 dealt with “Issues Resolution”. It required the parties, in short, to use their best endeavours to co-operate to avoid grievances and disputes arising and to abide by the procedures set out in the clause to resolve any issue which might arise. Issues included “any question, issue, grievance, dispute or difficulty which might arise between the parties about the interpretation, application or operation of the Award”. The clause set out an escalating series of procedures which might be triggered culminating, if the Award procedures were exhausted without the issue being resolved, with either mediation or referral to the Industrial Relations Commission of New South Wales.

  7. Schedule A dealt with payment of various amounts while an employee was transferred to other duties while a disciplinary inquiry was being held. It is unnecessary to go into the detail of the Schedule. It is sufficient to note that it referred to new arrangements having been reached in this respect following consultations “with a number of public sector organisations, the Labour Council and public sector unions”.

Statement of the case

  1. The respondent suffered back injuries in 1996, 1998 and 2000 in the course of his employment as a front line Ambulance Officer. As a consequence of those injuries, from 2001 he became an Operations Centre Officer. That work, in short, involved co-ordinating ambulances in a given geographic area, including assessing what level of Ambulance Officer was required for a case and an ability to give medical advice in a professional manner. [12] The respondent suffered psychological injury as a result of his work in the Operations Centre with a deemed date of injury of 31 January 2007. [13] He gave evidence that when he ceased work with the Ambulance Service his classification was “Ambulance Officer Operations Centre Grade 2 (with intensive care paramedic qualifications)”. [14] His pay advice for 26 January 2007 described his classification as “Ambulance Officer (Ops Centre)”. It included a payment of $176.84 described as “B: Op Cent Allow”. [15] The Presidential member concluded that the latter payment was consistent with, relevantly, the provisions of the 2006 Award. [16]

    12.    Snell determination (at [58], [120]).

    13.    WC Act, s 15(1).

    14.    Primary decision (at [37]).

    15.    Snell determination (at [132]).

    16.    Primary decision (at [74]).

  2. The respondent resigned from the Ambulance Service on 29 July 2007 and ceased working on 10 August 2007.

  3. Evidence before the Commission satisfied the arbitrator that in 2005 the respondent was certified as an Ambulance Officer Grade 2 until 31 December 2006 by the International Academies of Emergency Dispatch (IAED), which appeared to be the body which undertook the certification process on behalf of the Ambulance Service. [17] As at the deemed date of the respondent’s injury, one month later, he had not undertaken, afresh, the courses or examinations referred to in the proviso.

    17.    Snell determination (at [163], [166]).

  4. In 2008 the Workers Compensation Commission on the basis of findings concerning the respondent’s psychological injury made an award in his favour for the payment of weekly compensation on the basis of total incapacity. [18]

    18.    The respondent was also assessed as having a permanent whole person impairment, as a result of his psychological injury, of 17 per cent; Ibid (at [4]).

  5. On 18 March 2013 the SNSW’s insurer issued a notice pursuant to s 54 of the WC Act (Notice required before termination or reduction of payment of weekly compensation) containing a “Transitional Work Capacity Decision”. The notice proceeded on the assumption that the 2012 amendments applied to the respondent. It stated that he had been assessed as having “no capacity for work”, had “been in receipt of weekly payments in excess of 260 weeks” and that as weekly payments were only payable after 260 weeks if the worker had no capacity for work and had a permanent impairment of more than 20 per cent whole person impairment, he had no entitlement to weekly payments. [19]

    19.    Primary decision (at [11], [17]); see also WC Act, s 39, inserted into the WC Act as part of the 2012 amendments.

  6. On 18 December 2013 the respondent commenced proceedings in the Commission by Application to Resolve a Dispute (ARD) claiming weekly payments from 18 July 2013. [20]

    20.    Snell determination (at [8]).

Arbitrator’s judgment

  1. The ARD was initially heard by an arbitrator in July 2014 who found that the respondent was a “paramedic” within the meaning of cl 25, Part 19H of Schedule 6 to the WC Act and, accordingly, that the 2012 amendments did not relevantly apply. [21] That decision was reversed by a Presidential member who remitted the matter for re-determination before a different arbitrator. [22]

    21.    Ibid (at [9]).

    22.    Ibid (at [11]).

  2. Senior arbitrator Snell heard the matter on the remitter. The sole issue was whether the respondent was appropriately characterised as a “paramedic” for the purposes of cl 25, so that the 2012 amendments did not apply to him. [23]

    23.    Ibid (at [21]).

  3. Before the arbitrator and the President, the SNSW submitted that the respondent was not a “paramedic” within the meaning of that expression in cl 25 because he was not a front line Ambulance Officer; and did not perform his duties in the presence of high danger or high peril. [24] Alternatively, the SNSW argued cl 25 did not apply because the respondent was not qualified to carry out the duties of a paramedic as he had not renewed his qualifications since 2004 (recertification argument). [25] The former argument was not repeated in this Court no doubt because of the decision in Chapman-Davis.

    24.    Ibid (at [23]); primary decision (at [67] ff).

    25.    Snell determination (at [24]).

  4. The recertification argument turned on the SNSW’s contention that the respondent did not hold the status of an Ambulance Officer Grade 2 (“paramedic”) because he had not maintained his certification as such in accordance with the proviso. [26]

    26.    Ibid (at [146]).

  5. The arbitrator found that the 2006 Award did not suggest that an Ambulance Officer Grade 2 if appointed, even permanently, to a position of Ambulance Operations Centre Officer, ceased to be an Ambulance Officer Grade 2. Rather, he observed, the Award made specific provision for the appointment and remuneration of such people as Ambulance Officers. [27]

    27.    Ibid (at [135]).

  6. He summarised his findings as follows:

“139.   The [respondent] was an Ambulance Officer Grade 2. Following his back injury he took up duties as an Ambulance Operations Centre Officer. It was consistent with the relevant Award that he could take up these duties as an Ambulance Officer Grade 2. He was remunerated on that basis. Neither the Award nor other material indicate that performing the duties of an Ambulance Operations Centre Officer was inconsistent with continuing to be classified as an Ambulance Officer Grade 2. This was consistent with being a ‘paramedic’ under the terminology introduced in the 2008 Award. It follows that, as the [respondent] was classified as an Ambulance Officer Grade 2, it does not matter that the [respondent] was not performing the front line operational duties of a ‘Paramedic’ (or ‘Ambulance Officer Grade 2’) when he suffered psychological injury.”

  1. As I have said, the arbitrator found that correspondence in the SNSW’s “Education File” was, relevantly, consistent with the respondent having been recertified until 31 December 2006. [28] He also found that annotations on correspondence in that file were consistent with the respondent’s evidence that where further education was needed the Ambulance Service would arrange it. [29]

    28.    Ibid (at [163], [166]).

    29.    Ibid (at [164]); see also (at [166]).

  2. The arbitrator accepted the respondent’s evidence as to how and when education and recertification were arranged. In particular, the arbitrator found that “time restrictions on continuing education and recertification were not strictly adhered to” and that the evidence demonstrated there were “a number of staff potentially being out of time for the completion of educational requirements.” Notwithstanding that fact, the arbitrator found that the evidence did not suggest “that staff in this position were prevented from carrying out their jobs until recertification was completed [or that] … their classifications were somehow changed whilst recertification was outstanding.” [30]

    30.    Ibid (at [165]).

  3. The arbitrator held:

“167. The relevant provisions of the [2006] Award (…) refer to an Ambulance Officer Grade 2 being required to undertake instruction and sit certification examinations as required by the Ambulance Service. It was submitted by the [respondent], and I accept, that there is no evidence that the [respondent] did not comply with any requirements made of him in this regard. That being so, the [respondent] was compliant with the requirements for further education and certification contained in the relevant part of the definition set out at [141] above. I accept that the [respondent] would not have been precluded from being an Ambulance Officer Grade 2 due to non-compliance with those provisions of the [2006] Award.” [31]

31.    The arbitrator referred in the parentheses to that part of the 2006 Award I have described as the proviso.

  1. The arbitrator also accepted the respondent’s submission that, if the SNSW continued to employ him as an Ambulance Officer Grade 2, notwithstanding some breach of the recertification requirement of the 2006 Award, that did not change the fact that he was employed in that capacity. [32]

    32.    Snell determination (at [168]).

  2. Accordingly, the arbitrator found that the respondent was a “paramedic” within the meaning of cl 25 at the time of his injury, such that the 2012 Amendments did not apply to him.

Primary decision

  1. The SNSW appealed pursuant to s 352 of the WIM Act. On such an appeal, the Commission is not entitled to overturn a decision of an Arbitrator unless the decision was affected by an error of fact, law or discretion. [33] The appeal was heard by the President who confirmed the arbitrator’s determination.

    33. WIM Act, s 352(5); Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (at [31]) per Basten JA (Ward JA agreeing); (at [70]) per Sackville AJA (Ward JA agreeing).

  2. The President accepted the arbitrator’s findings of fact on the recertification argument. I mean no disrespect to the President when I say that it was substantially on the basis of those findings and the rulings the arbitrator made consistent with those findings that his Honour dismissed the appeal. That is consistent with his Honour’s discharge of the appellate function pursuant to s 352(5). Among those findings was that in paragraph [139] to which his Honour referred without criticism. [34]

    34.    Primary decision (at [79]); see above (at [34]).

  3. There are some aspects of the President’s reasons to which reference should be made as they were referred to by the SNSW in its primary written submissions. [35]

    35.    The SNSW filed primary written submissions prior to delivery of the judgment in Chapman-Davis and supplemented those submissions after that judgment was delivered.

  4. First, in dealing with an issue the President identified as “Certification as a ‘paramedic’”, his Honour held that:

“100.    Although not expressly stated, I infer that Mr Stockwell continued with his normal duties during the gap in the re-certification period in early 2005. There is nothing in the evidence to suggest otherwise. The education file also revealed that it was not uncommon for an extension of time to be sought for members of staff to complete re-certification examinations without apparent interruption to their normal duties. As Mr Stockwell had been recertified until 31 December 2006 and the deemed date of injury is 31 January 2007, the gap in question is just one month.” [Emphasis added.]

  1. The SNSW contended that the last sentence was a finding by the President that as at the deemed date of his injury, the respondent’s certification as a paramedic had lapsed and he had not recertified. It also submitted that the effect of this passage of his Honour’s reasons was that the lack of recertification was of no consequence because it occurred only a month prior to the deemed date of injury. The SNSW contended that the latter finding was erroneous. Assuming that was the way this paragraph should be read, having regard to the conclusions I have reached concerning the construction of the 2006 Award, nothing turns on it in this Court.

  2. The President also held that “the evidence established that the Ambulance Service controlled the extent to which a lapse in the re-certification process was acceptable.” [36] This “finding” upheld the arbitrator’s finding to like effect. [37] The SNSW appeared to challenge that finding in its primary written submissions. The challenge was not repeated in oral submissions. In any event, any such challenge to a finding of fact is not open on an appeal confined to a decision in point of law.

    36.    Primary decision (at [103]).

    37.    Ibid (at [98]); Snell determination (at [164] – [166]).

  3. Secondly, the President held, when dealing with a complaint the SNSW had made about the arbitrator’s analysis of some evidence that “[t]he issue before the Senior Arbitrator was not whether [the respondent] was able to perform ‘on-road’ duties at the time he was injured, but whether he satisfied the Award definition of ‘paramedic’.” [38]

    38.    Primary decision (at [108]).

  4. The SNSW contended that the President erred in this respect as the issue was not whether the respondent satisfied the Award definition of “paramedic”, but whether he satisfied the meaning of that term in cl 25, a question to be determined in accordance with principles of statutory construction. This is too limited an approach to the issue. The arbitrator, and the President on appeal, had to determine the respondent’s classification (and, accordingly status/designation consistent with the conclusion in Chapman-Davis) at the date he was injured. That turned on interpreting the 2006 Award, and then deciding whether, on the relevant finding, the respondent held the status of “paramedic” within the meaning of cl 25.

  5. Thirdly, the SNSW criticised paragraphs [135] – [141] of the primary decision. As was apparent from the President’s reasons, those paragraphs were a précis of the reasons of Walton P in the Industrial Commission in Chapman-Davis IC. [39]

    39.    See generally (at [196] – [210]).

Issues on appeal

  1. The draft notice of appeal contained four grounds of appeal, three of which essentially complained that the President erred in point of law in not holding that the respondent was not a paramedic within the meaning of that term in cl 25 because he was not recertified as such on the deemed date of his injury. In his oral submissions, Mr S Flett who appeared for the SNSW with Mr S Blount, confined the issue on appeal to this point.

SNSW’s submissions

  1. In its primary written submissions, the SNSW submitted that the word “paramedic” in cl 25 should be construed in accordance with principles of statutory construction, by reference to text and context.

  2. The SNSW accepted that, at all relevant times, the respondent was qualified as an Ambulance Officer Grade 2. The essential controversy revolved around the question whether, at the time of his deemed injury, the fact that he had not undertaken the courses and examinations referred to in the proviso meant he was not “certified” as a “paramedic”. The SNSW contended that as at the time of his injury the respondent was not certified as a paramedic, the circumstance that the Ambulance Service continued to employ him and pay him as if he was, was irrelevant.

  3. Mr Flett submitted that, on the proper construction of the 2006 Award, the proviso meant that if a person holding the position of Ambulance Officer Grade 2 failed to comply with its requirements, his status as an Ambulance Officer Grade 2 lapsed. Mr Flett drew a distinction between the respondent holding the qualifications as an Ambulance Officer Grade 2 and having the status as such. It was in the latter respect that he contended that the absence of recertification deprived the respondent of the relevant status to qualify for the cl 25 exemption.

  4. In the course of oral argument, Mr Flett accepted that it was the Ambulance Service which prepared and provided the recertification courses referred to in the proviso and directed the relevant Ambulance Officer to undertake them. He also accepted that ambulance officers could not do a recertification course unless it was provided to them by the Ambulance Service. He submitted that this fact did not detract from his argument that failure to comply with the proviso meant that an officer lost his or her status relevantly, as an Ambulance Officer Grade 2.

  1. Mr Flett accepted that the terms of the 2006 Award obliged the Ambulance Service to continue paying the respondent on the basis that he held the status of an Ambulance Officer Grade 2.

  2. Subsequent to the SNSW filing its primary submissions in this appeal, this Court handed down Chapman-Davis, in which it dismissed the SNSW’s appeal from Walton P’s decision. Chapman-Davis also concerned the question whether an employee of the Ambulance Service was entitled to the benefit of the cl 25 exemption by reason of being a paramedic at the time she was injured. The worker had worked as an Ambulance Officer since September 2000 and been classified as a “paramedic” since 12 September 2008. Eight days prior to her injury she had commenced a 12 month secondment as a Health Adviser at a unit in the Ambulance Service. As such her duties were different to those of a paramedic. The SNSW sought to challenge Walton P’s finding that, for reasons not presently relevant, notwithstanding those facts the respondent was a paramedic within the meaning of, and for the purposes of, cl 25. In brief, the court held that the focus of the cl 25 exemption was a particular designation or status of the worker, rather than certain characteristics or functional aspects of a person’s work at the time the relevant injury was suffered. [40]

    40.    Chapman-Davis (at [74], [79]).

  3. In Chapman-Davis, the worker retained the status of “paramedic” even though seconded to another position and was at all times able to carry out the primary duties of a paramedic. After Chapman-Davis was handed down, the Registrar of the Court of Appeal directed the SNSW to make supplementary written submissions concerning the decision. In those submissions, the SNSW sought to distinguish Chapman-Davis on the basis that due to his absence of certification, the respondent did not have the status of a paramedic at the time he suffered his work injury. It submitted, in this respect, that the respondent had “allowed his certification as a paramedic to lapse before his work injury”. It also contended that the discretionary element concerning the certification in the proviso referred to the nature of the course attended, rather than to the timing of attendance and that the President’s finding in this respect was in error. [41] However, as I have said Mr Flett accepted in oral submissions that the 2006 Award obliged the Ambulance Service to provide the courses referred to in the proviso.

    41.    Cf primary decision (at [97] – [98]).

  4. In contrast with Ms Chapman-Davis’ position, the SNSW also submitted, the respondent was medically unfit and unable to carry out the primary duties of a paramedic. It argued that the circumstance that the Ambulance Service continued to pay him as if he was on alternative duties pending rehabilitation did not change the fact that he was on permanently modified duties with no prospect of being rehabilitated back to duties as a paramedic.

  5. The SNSW also sought to distinguish Chapman-Davis on the basis that the respondent’s terms of employment were determined by the 2006 Award as opposed to the 2010 version of the Award that was in force at the time of Ms Chapman-Davis’ injury. This point was not developed orally and the distinction sought to be advanced was not apparent.

Respondent’s submissions

  1. Mr McManamey submitted that the case is on all fours with Chapman-Davis. He argued that the respondent was appointed to the position of Ambulance Officer Grade 2 in accordance with the 2006 Award. He submitted that the President’s finding, confirming that of the arbitrator, that at the deemed date of injury the respondent was so employed (and accordingly by reference to the 2008 Award terminology was classified as a “paramedic”) was a question of fact and could not amount to an error in point of law within s 353(1) of the WIM Act.

  2. Insofar as the SNSW submitted that the respondent did not satisfy the award definition of paramedic because his certification was not up to date as at the deemed date of his injury, Mr McManamey contended that the arbitrator’s finding, again confirmed by the President, that there was no evidence that the respondent had failed to comply with any requirement made of him to undertake recertification and that that circumstance did not preclude him from being an Ambulance Officer Grade 2 (“paramedic”) was a factual finding not open to challenge on an appeal pursuant to s 353(1) of the WIM Act.

Consideration

  1. The extension of time application arises in the following context.

  2. The primary decision was delivered on 5 April 2016. On 2 May 2016 the SNSW filed and served a notice of intention to appeal. The unchallenged evidence of its solicitor was that, due to a miscalculation, the date for filing the appeal was calculated as 2 August 2016, being three months from filing that notice, as opposed to 5 July 2016, being three months from the “material date”, being the date the primary decision was delivered. [42] On 1 August 2016 as soon as the mistake was realised, the solicitor filed a summons seeking leave to appeal, a draft notice of appeal and the affidavit explaining the delay.

    42.    Cf UCPR 51.9(1)(a).

  3. As I have said, the respondent does not point to any prejudice. He has, apparently, continued to receive weekly benefits during the proceedings. He points however to what he contends is the SNSW’s poor prospects of success as a reason for refusing an extension of time. [43]

    43. Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (at [57] – [58]) per Basten JA.

  4. In my view an extension of time to file the notice of appeal should be granted. The failure to comply with the UCPR was due to an oversight, the delay is short and the respondent does not point to any practical prejudice. The ultimate question on the extension application is what is required by the dictates of justice. [44] The question involved is a significant one concerning the extent of the SNSW’s obligations to employees of the Ambulance Service. It is, in my view, in the interest of justice that it be resolved in this Court. Accordingly, I turn to the substance of the appeal.

    44. Civil Procedure Act 2005 (NSW), s 56 – s 58.

  5. The first issue is jurisdiction. The respondent contends that the SNSW’s submissions must fail because the SNSW does not point to an error of the President in point of law as required by s 353(1) of the WIM Act. I would reject that submission.

  6. The SNSW’s core contention turns on the construction of the 2006 Award. The term “paramedic” had a particular meaning for the purposes of cl 25. That meaning was determined in Chapman-Davis as turning on whether a person employed by the Ambulance Service held the designation or status of “paramedic” at the date of his or her injury. [45] To resolve that issue in the present case, it was necessary for the arbitrator and, if appropriate within the confines of s 352 of the WIM Act, the President, to engage in a process of fact-finding concerning the respondent’s status within the Ambulance Service and, too, to construe the 2006 Award and cl 25. In my view determining whether, on the facts as found, and the proper construction of the 2006 Award and, hence cl 25, the respondent held the status of paramedic at the relevant time, involved a point of law. [46]

    45.    Chapman-Davis (at [79]).

    46. Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 (at 138); [1940] NSWStRp 9 per Jordan CJ; see also Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 (at [24] – [27]) per Gleeson CJ, Gummow and Callinan JJ; (at [75]) per Kirby J; (at [108]) per Hayne J; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 (at 394 – 398) per curiam (High Court determined that the construction of a phrase in a Commercial Tariff Concession Order made under the Customs Act 1901 (Cth) raised a question of law); see also Daley v SAS Trustee Corporation [2016] NSWCA 111 (at [108] – [120]) per Basten JA; Brimelow v Sharpe [2012] NSWCA 345 (at [27]) per Macfarlan JA (Tobias AJA agreeing) (proper construction of contract a decision with respect to a matter of law); see also (at [41] – [45]) per Meagher JA.

  7. The parties’ submissions focussed on the proper construction of the 2006 Award. Neither party drew the Court’s attention to any authorities concerning its construction nor made any submissions concerning its legislative background.

  8. When construing an industrial agreement such as the 2006 Award, in particular the primary requirement and the proviso, the Court must have regard to the language of the particular agreement, understood in the light of its industrial context and purpose and its operation as a whole as well as the legislative background against which it was made and in which it was to operate. [47]

    47. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 (Amcor) (at [2]) per Gleeson CJ and McHugh J; (at [30]) per Gummow, Hayne and Heydon JJ; and (at [66]) per Kirby J; see also City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 (Wanneroo v AMACSU) (at [53]) per French J (as the former Chief Justice then was).

  9. The Interpretation Act 1987 (NSW) also applies to the interpretation of the 2006 Award,[48] as it is an “industrial instrument” made under s 10 of the Industrial Relations Act 1996 (NSW) (IR Act). [49] As Walton P explained in PSA v Secretary of the Treasury, s 12 of the IR Act makes the award binding on all parties and an award, when made, is given the force of law by being made enforceable pursuant to s 357 of the same Act. [50]

    48. Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees’ Union (2008) 180 IR 170; [2008] NSWIRComm 158 (NSW Fire Brigades) (Boland J (P), Walton J (VP) and Sams DP).

    49. Interpretation Act, s 3(1); see also IR Act, s 8; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 (PSA v Secretary of the Treasury) (at [107]) per Walton P.

    50.    (at [107]).

  10. In PSA v Secretary of the Treasury, [51] Walton P expressed doubt about whether s 33 of the Interpretation Act (Regard to be had to purposes or objects of Acts and statutory rules) which applies to “an Act or statutory rule” applied to the interpretation of awards which do not fall within the definition of the latter term. [52] Needham J reached the same conclusion (and also as to s 34 of the Interpretation Act which uses the same language of application) with greater confidence in relation to a draft planning report in Saggers v Sydney Market Authority [53] on the basis that the attempt to tender the report was an impermissible attempt to adduce evidence of the actual intention of the makers of a development plan. [54]

    51.    (at [108] – [111]).

    52.    See Interpretation Act, s 21.

    53. (1988) 66 LGRA 42 (at 44).

    54. See also Jobson v The Owners – Strata Plan No 66870 [2015] NSWSC 776 (at [71]) per Darke J.

  11. The application of s 33 was not debated by the parties. I assume for present purposes that s 33 does not apply. Nevertheless, that provision is a re-statement of the common law mischief rule, which is “a valid approach to statutory interpretation so as to ensure that the purpose of the legislature is achieved.”[55] It is proper to seek to give the 2006 Award a meaning which advances its purpose, so far as that can be done consistently with the text. [56]

    55. Commonwealth Custodial Services Ltd v Valuer General (2007) 156 LGERA 186; [2007] NSWCA 365 (at [16]) per Spigelman CJ (Santow JA agreeing).

    56. Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806; [2003] HCA 55 (ACE v DCT) (at [8]) per Gleeson CJ; (at [61]) per Kirby J; NSW Fire Brigades (at [47]).

  12. In Wanneroo v AMACSU, [57] French J emphasised that, in construing an industrial agreement, its words must not be interpreted “in a vacuum divorced from industrial realities”. Rather, his Honour said, “[t]here is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned”. [58] In this context, his Honour referred with approval to George A Bond & Co Ltd (In liq) v McKenzie, where Street J said:[59]

“… [S]peaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.” [Emphasis added.]

57.    (at [57]).

58. See also Kucks v CSR Ltd (1996) 66 IR 182; [1996] IRCA 166 (at 184) per Madgwick J: “…narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.”; see also ACE v DCT (at [56]) per Kirby J; Amcor (at [96]) per Kirby J; (at [129] – [130]) per Callinan J; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 (at [26] – [27]) per Flick J; The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446 (at [22] – [24]) per Basten JA.

59. [1929] AR (NSW) 498 (at 503 – 504) (Cantor J agreeing).

  1. The SNSW’s submissions focussed on the respondent’s designation at the date of his injury by reference to what it contended followed from the fact that at that time he had not undertaken the courses or examinations referred to in the proviso with the consequence, it argued that he lost his status as a paramedic. That consequence was said to flow from the primary requirement by virtue of which the respondent was classified as an Ambulance Officer Grade 2 (and, perforce, by the operation of the 2008 Award, a “paramedic”) and the proviso.

  2. Neither party elicited any evidence concerning the history of the 2006 Award. However it appears that an award governing the employment of ambulance officers was originally made by consent in 1998 and, in its various iterations since then has regulated the conditions of employment of employees of the Ambulance Service. [60] Walton P set out its history since 1998 in Chapman-Davis IC. Although his Honour’s analysis extends beyond the 2006 Award, it is apparent that his Honour’s observation that the “[a]ward regulated the conditions of those employees in accordance with particular classifications into which the subject employees were categorised … [and that] Employees were appointed to positions which corresponded to classifications in the Award and were remunerated accordingly”, [61] applied to the 2006 Award.

    60. Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 (at [14]) per Backman J; Chapman-Davis IC (at [56] – [66]).

    61.    Chapman-Davis IC (at [65]).

  3. The fundamental requirement the 2006 Award imposed upon an employee seeking to attain the classification of Ambulance Officer Grade 2 was to comply with the three matters set out in the primary requirement. That is to say, to have successfully completed the requirements for an Ambulance Officer Grade 1, to be in his or her fourth or subsequent years of service and to be appointed to an Ambulance Officer position identified as such by the Ambulance Service. The SNSW accepts that the respondent complied with those requirements and, further, accepted as it must, that he continued to hold the primary qualifications.

  4. The proviso imposed a requirement that an Ambulance Officer Grade 2 undertake the courses and complete the examination to which it refers. As was found in the Commission, and as is self-evident, it does not explicitly state the consequence of the officer’s failure to do so.

  5. Further, the SNSW’s contention that such a failure meant an employee lost their classification as an Ambulance Officer Grade 2, in my view, is an improbable consequence in the context of a negotiated instrument such as an industrial award. Schedule A (see [22] above) makes tolerably apparent the extent of the involvement of others in aspects of the award. In such an instrument, one would expect the consequence of such a failure to be spelt out clearly. The only consequence identified in the 2006 Award of such a failure is that referred to in cl 9(a), by the operation of which employees holding various classifications (including Ambulance Officer Grade 2) and working in the Operations Centre who fail to comply with the proviso cease to be entitled to the additional allowance to which persons working in that area are otherwise entitled.

  6. The immediate context of the proviso as it appears elsewhere in cl 5 also tells against a reading of its words such that a failure to complete the matters referred to in it would deprive an Ambulance Officer of his or her status as such as designated in the 2006 Award. It would be a large consequence for all those whose classifications appear in cl 5 to lose their status because of his or her failure to comply with the proviso. Such a failure might be due to the Ambulance Service’s failure to make arrangements for them to comply with the proviso (which on the unchallengeable findings of facts in this case was the fate which befell the respondent) or a more neutral factor such as a lengthy (and authorised) absence on vacation or an illness depriving the relevant Officer from being able to comply with the proviso.

  7. On the interpretation of the proviso the SNSW advances, the guillotine falls no matter for what reason an employee has not passed the certification examinations at the end of each two year period. Once again, that is an improbable interpretation, especially in the context of an award one of whose objects was to “improve work practices” (cl 3(c)) and “achieve a more generic, flexible structure which enhances greater efficiency” (cl 7).

  8. The proviso contains no words which would enable any relaxation of its application in such circumstances. The harsh consequence that officers who failed to comply with it in such circumstances could not ameliorate the consequences of doing so tend against the construction for which the SNSW contends.

  9. Further, the alternative duties provision entrenched, relevantly, the position of an Ambulance Officer Grade 2 permanently appointed to positions of an Ambulance Operations Centre Officer on the basis of injury (as it appears the respondent was), by providing that the Operations Centre classification remained a source of alternative duties. It did not make retention of the original classification, or the Operations Centre classification dependent on compliance with the proviso.

  10. In addition, the 2006 Award suggested that, rather than failure to comply with matters such as the proviso having the dramatic consequences for which the SNSW contended, such failure (which one would envisage would give rise to a dispute about the Award having regard to its silence on this issue), or a controversy about the application or operation of the Award was to be resolved in accordance with the procedures for which cl 41 (see [21] above) provided. Clearly the Award contemplated, as might be expected, a conciliatory approach to issues arising under the Award, rather than the dramatic consequences for which the SNSW contended.

  1. It may also be that, ultimately, another consequence of failure to comply with a provision of the Award would be the taking of some form of disciplinary action as was suggested in the course of argument. Schedule A contemplates a disciplinary regime applying across the board, although its details were not spelled out. Mr Flett appeared to accept that disciplinary action may be appropriate with on-road paramedics, but not with those in the Operations Centre. The basis of the distinction was not apparent. I would not place great weight on this factor as the point was not developed.

  2. In my view it cannot be gleaned either from the text of the proviso or the context of the 2006 Award that the general intention of the parties to the award was that failure to fulfil the requirements of the proviso had the effect for which the SNSW contends.

  3. The SNSW’s reply submissions also contended that the respondent was not within cl 25 not only because he had not recertified as at 31 December 2006, but, also because he was medically unable to carry out the duties of a paramedic, and had been permanently assigned to the Ambulance Operations Centre in consequence. In the course of argument, Mr Flett informed the Court there were no findings of fact to this effect and did not pursue the issue. It should be noted that the respondent gave evidence that he moved to the Operations Centre because, as a result of his back injuries, he could not at the time discharge his duties as an Ambulance Officer/paramedic in the field. [62] Mr Flett’s properly made concession appears to go to the question of the permanency of his position in that Centre.

    62.    Snell determination (at [68]).

  4. Mr Flett accepted that it was sufficient for his purposes that the Court find the respondent was not certified. For the reasons I have given, the terms of the 2006 Award do not indicate that failure to give effect to the proviso, meant the respondent ceased to be a paramedic. Nor do they indicate that a person permanently appointed to the Operations Centre and who, like the respondent, was certified as a paramedic, lost that status by reason of the proviso.

  5. The President did not err in point of law in deciding that at the deemed date of his injury, the respondent was a “paramedic” and, hence, exempt from the application of the 2012 amendments to the WC Act.

Orders

  1. I propose the following orders:

  1. Extend the time within which the State of New South Wales may file the notice of appeal to 1 August 2016.

  2. Direct the State of New South Wales to file the notice of appeal in the form of the draft in the White Book within 7 days.

  3. Appeal dismissed.

  4. The State of New South Wales to pay the respondent’s costs of the appeal and the application for an extension of time to appeal.

  1. LEEMING JA: I agree with McColl JA.

  2. SIMPSON JA: I agree with McColl JA.

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Endnotes



Decision last updated: 01 March 2017

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