State of New South Wales v Stockwell

1. [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]

2. [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. [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. [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. [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. [6]

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

2. [7]

   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]

3. [8]

   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.”

4. [9]

   “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.”

5. [10]

   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.

6. [11]

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

7. [12]

   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.

8. [13]

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

9. [14]

   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:

10. [15]

    Clause 9(a) of the 2006 Award provided:

11. [16]

    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.

12. [17]

    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”.

13. [18]

    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.

14. [19]

    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.

15. [20]

    Two other aspects of the 2006 Award should be noted.

16. [21]

    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.

17. [22]

    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. [23]

   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]

2. [24]

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

3. [25]

   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.

4. [26]

   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]

5. [27]

   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]

6. [28]

   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]

Arbitrator’s judgment

1. [29]

   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]

2. [30]

   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]

3. [31]

   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.

4. [32]

   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]

5. [33]

   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]

6. [34]

   He summarised his findings as follows:

7. [35]

   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]

8. [36]

   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]

9. [37]

   The arbitrator held:

10. [38]

    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]

11. [39]

    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. [40]

   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.

2. [41]

   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]

3. [42]

   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]

4. [43]

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

5. [44]

   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.

6. [45]

   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.

7. [46]

   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]

8. [47]

   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.

9. [48]

   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]

Issues on appeal

1. [49]

   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. [50]

   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. [51]

   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. [52]

   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. [53]

   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.

5. [54]

   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.

6. [55]

   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]

7. [56]

   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.

8. [57]

   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.

9. [58]

   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. [59]

   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. [60]

   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. [61]

   The extension of time application arises in the following context.

2. [62]

   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.

3. [63]

   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]

4. [64]

   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.

5. [65]

   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. [66]

   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]

7. [67]

   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. [68]

   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]

9. [69]

   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]

10. [70]

    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]

11. [71]

    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]

12. [72]

    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]

13. [73]

    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.

14. [74]

    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.

15. [75]

    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.

16. [76]

    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.

17. [77]

    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.

18. [78]

    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.

19. [79]

    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).

20. [80]

    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.

21. [81]

    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.

22. [82]

    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.

23. [83]

    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.

24. [84]

    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.

25. [85]

    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.

26. [86]

    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.

27. [87]

    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. [88]

   I propose the following orders:

   1. (1)

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

   2. (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. (3)

      Appeal dismissed.

   4. (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.

2. [89]

   LEEMING JA: I agree with McColl JA.

3. [90]

   SIMPSON JA: I agree with McColl JA.