State of New South Wales v Chapman-Davis

1. [1]

   McCOLL JA: I agree with Gleeson JA’s reasons and the orders his Honour proposes.

2. [2]

   GLEESON JA: On 25 July 2011, the respondent, Ms Lorelle Chapman-Davis, sustained a workplace injury whilst employed in the Ambulance Service of New South Wales (the Ambulance Service). She suffered a back injury and underwent spinal surgery later in 2011. The first applicant, the State of New South Wales (the State) is the respondent’s employer. The second applicant, QBE Insurance (Australia) Limited (the insurer), an agent for NSW Self-Insurance Corporation, is the relevant workers compensation insurer. Liability was accepted for the respondent’s injury and she was paid workers compensation pursuant to the Workers Compensation Act 1987 (NSW) (WC Act).

3. [3]

   On 30 September 2013, the insurer informed the respondent that, as a result of legislative changes to the workers compensation scheme in June 2012, her ongoing entitlement to claim medical expenses would cease on 31 December 2013.

4. [4]

   The changes to the WC Act referred to in the insurer’s letter 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. [5]

   The exemption is in the following terms:

6. [6]

   Prior to 18 July 2011, the respondent was employed as a ‘paramedic’ within the Ambulance Service. On that date she was seconded to the position of Health Advisor within the Ambulance Service. The seconded position involved duties different to those performed by a ‘paramedic’, however, it was common ground that the respondent’s contract of employment, under which she was classified as a paramedic, subsisted during her secondment.

7. [7]

   The Industrial Court found that at the time of her injury, the respondent was a ‘paramedic’ within the meaning and for the purposes of cl 25 of Pt 19H of Sch 6 of the WC Act: Chapman-Davis v State of New South Wales [2015] NSWIC 10 (Walton P). Subsequently, on 1 October 2015, the Industrial Court made a declaration to this effect and ordered the State and the insurer to pay 80 percent of her costs, as agreed or assessed: Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13. The consequence of that declaration is that the respondent is exempt from the application of the changes to the workers compensation scheme, introduced by the 2012 Amendment Act.

8. [8]

   The applicants seek leave to appeal to challenge that declaration and costs order. Before turning to the issues, it is convenient to first identify the nature of the case raised by the proposed appeal.

Nature of the case

1. [9]

   In the Industrial Court, the State and the insurer contended that a dichotomy between operational duties (also described as “frontline operations”) and non-operational duties of police officers, paramedics and firefighters, limited the exemption’s application to the nominated categories of worker performing operational duties at the time of receipt of an injury (in the course of their employment). The primary judge rejected that contention and the appellants do not seek to challenge this aspect of his Honour’s reasoning. The appellants accepted in this Court that if a person answered the statutory description of a “police officer, paramedic or firefighter” at the time of their injury (in the course of their employment), they would fall within the exemption and be protected from the changes introduced by the 2012 Amendment Act, even if they were not performing operational duties, or “frontline operations” at the time of their injury.

2. [10]

   The focus of argument in this Court was directed to a much narrower issue, namely whether the respondent did in fact answer the statutory description of a person who was a ‘paramedic’ at the time of receipt of her injury because she maintained her status and classification as a ‘paramedic’ under her substantive contract of employment whilst on secondment to the role of Health Advisor.

Leave to appeal

1. [11]

   An appeal from the Industrial Court of New South Wales, formerly known as the Commission in Court Session (Industrial Relations Act 1996 (NSW) (Industrial Relations Act) s 151A), is assigned to this Court under s 48(2)(f) of the Supreme Court Act 1970 (NSW): see s 48(1)(a)(ii). An appeal to this Court from the Industrial Court (other than by the Minister) requires a grant of leave to appeal: Industrial Relations Act s 403A and s 403B(1). The Court is to grant leave to appeal if, in its opinion, the matter is “of such importance that, in the public interest, leave should be granted”: s 403B(2).

2. [12]

   In 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 [2], Basten JA (Rothman J agreeing) held that in the absence of a compelling public interest, the Court has a discretionary power to grant leave to appeal, which should be exercised generally in accordance with established principles (see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39]), bearing in mind the special nature of the jurisdiction exercised by the Industrial Court under the Industrial Relations Act.

3. [13]

   In the present case, evidence was adduced at trial of a practice within the Ambulance Service whereby paramedics undertake other duties involving non-frontline work, typically under a secondment arrangement, whilst remaining classified as a ‘paramedic’ under the relevant Award (relating to paramedics). Whilst the terms of a particular secondment arrangement may vary, the question of whether the respondent is properly characterised as a ‘paramedic’ whilst working on secondment to another position with different duties raises an issue of importance beyond the rights and obligations of the parties to the present proceedings. Accordingly, there should be a grant of leave to appeal.

4. [14]

   It is convenient to refer to the applicants as the appellants. Unless otherwise stated, references to the primary judge’s reasons are to his Honour’s first judgment.

The facts

1. [15]

   There is no dispute as to the background facts, or any challenge to his Honour’s factual findings.

2. [16]

   The respondent commenced employment with the Ambulance Service as an ‘Ambulance Officer’ in September 2000: at [70] and [73]. She progressed to the classification of Ambulance Officer Grade 2 under the Operational Ambulance Officers’ (State) Award published in July 1998: at [59]. A further award was made in 2005. It is unnecessary to refer to the terms of the 1998 or 2005 Awards.

3. [17]

   In 2008, the classification of the respondent’s position was changed to ‘paramedic’ by the Operational Ambulance Officers’ (State) Award issued on 2 October 2008, effective from 12 September 2008 (the 2008 Award) and the primary judge inferred that she transitioned to the classification ‘Paramedic Year 2’ from that date: at [62]. The 2008 Award was replaced by an award with the same title - the Operational Ambulance Officers’ (State) Award issued on 24 December 2010 (the 2010 Award).

4. [18]

   On 18 May 2011, the respondent applied for the position of Health Advisor at the Health Access Coordination Unit (HAC Unit) within the Ambulance Service. In her application, the respondent indicated that she was initially interested in a temporary part-time or full-time position “while still maintaining an Operational Paramedic role at other times, if mutually agreeable”.

5. [19]

   The position of Health Advisor primarily involved providing health care advice to, and/or timely referral (to other allied health services) of selected callers of the emergency telephone number, 000, who had been identified via telephone by the Control Centre as non-urgent, non-serious cases. It was common ground that this position involved different duties to that of a ‘paramedic’.

6. [20]

   The advertised selection criteria for the position of Health Advisor required “current ASNSW Intensive Care Paramedic qualifications and/or NSW (State) List A Registered Nurse qualifications with clinical experience”. The respondent held the relevant registered nurse qualifications. The “position description” for Health Advisor identified the relevant “Award or Contract” as the “Operational Ambulance Officers’ (State) Award [i.e. the 2010 Award] or NSW Public Health System Nurses’ & Midwives’ (State) Award”. The stated “Classification” was “Intensive Care Paramedic (Ambulance Officer)/(Registered Nurse)”.

7. [21]

   The terms of the letter from the Ambulance Service to the respondent offering employment for the position of Health Advisor are important and included the following:

8. [22]

   On 18 July 2011, the respondent commenced in her new position as Health Advisor at the HAC Unit. As mentioned, she sustained a workplace injury shortly thereafter on 25 July 2011.

9. [23]

   Mr Hendrik Kruit, then Manager of the HAC Unit, gave affidavit evidence that the respondent’s temporary secondment to the HAC Unit was for a period of 12 months.

10. [24]

    In describing the Ambulance Service’s practice of placing paramedics on temporary secondments, Mr Kruit said that the paramedic would continue to be classified as a paramedic under the relevant Award, which at that time was the 2010 Award. Mr Kruit gave two reasons why the Ambulance Service permitted such an arrangement: to continue the paramedic’s entitlement to death and disability benefits, and to enable the paramedic to maintain his or her certificate of practice entitling him or her to work as an (operational) paramedic. This was important as the paramedic could revert back to operational paramedic work at the conclusion of the secondment.

11. [25]

    Consistently with the second reason, Mr Kruit gave evidence that he permitted those Health Advisors who were paramedic specialists to undertake occasional operational paramedic duties with the Operational Division of the Ambulance Service during their period of secondment. Typically, this would involve attending occasional emergency work (in a relieving position) with one of the operational division units in the Ambulance Service. Mr Kruit said that this work was not part of their role, duties or function with the HAC Unit, nor were they paid by the HAC Unit to do this work. Mr Kruit said that, consistent with this practice, he had intended to permit and facilitate the respondent’s undertaking of occasional operational paramedic duties.

The terms of the 2010 Award

1. [26]

   The 2010 Award referred to in the letter offering employment to the respondent as a Health Advisor, applied to all employees (as defined in the Award) of the Ambulance Service, excluding one locality not presently relevant: cl 47(b). Relevant definitions in cl 4 of the 2010 Award included:

2. [27]

   Clause 5 of the 2010 Award dealt with the classification, among others, of Patient Transport officers (Division 1) and Paramedics (Division 2). Paramedics were classified as either a ‘Trainee Paramedic’, ‘Paramedic Intern’, ‘Paramedic’ or ‘Paramedic Specialist’. The expression ‘Paramedic’ was defined in cl 5(b)(iii) of the 2010 Award as follows:

3. [28]

   The respondent’s payslip for the period 30 July 2011 to 12 August 2011 was in evidence. It described the respondent’s employee classification as a “Paramedic Specialist”. It was common ground that this was the respondent’s classification (but not a descriptor of the nature of her duties) while she worked as a Health Advisor, including at the time of her injury.

The 2012 amendments to the workers compensation scheme

1. [29]

   On 13 June 2012, the Joint Select Committee on the NSW Workers Compensation Scheme delivered its report recommending certain changes to the existing compensation scheme. Recommendation 3 was that the NSW Government abolish journey claims under the workers compensation scheme, except in relation to police officers: Joint Select Committee on the NSW Workers Compensation Scheme, Parliament of New South Wales, Report (2012), p 58.

2. [30]

   The Workers Compensation Legislation Amendment Bill 2012 (NSW) (the 2012 Amendment Bill) as originally drafted adopted this recommendation in relation to changes to compensation for journey claims and went further by exempting police officers from all proposed changes to the workers compensation scheme, including amendments to lump sum compensation and medical and related expenses.

3. [31]

   However, the 2012 Amendment Bill was amended by the Legislative Council on 21 June 2012 in a number of respects, including that paramedics and firefighters, in addition to police officers, be exempted from the changes to the workers compensation scheme. This amendment, which became cl 25 in Sch 12 of the 2012 Amendment Bill, was initially opposed by the Government in the Legislative Council: Hansard, Legislative Council, 21 June 2012, pp 13,456-13,457. Subsequently, later on 21 June 2012, the Government accepted this amendment, among others, in the Legislative Assembly: Hansard, Legislative Assembly, 21 June 2012, pp 13,581 and 13,583.

4. [32]

   The change which had particular relevance for the respondent was contained in Schedule 4 to the 2012 Amendment Act. This introduced, among others, s 59A(1)-(2) of the WC Act which provides that payment of an injured worker’s expenses for medical, hospital and rehabilitation treatment and services is limited to treatment and services provided within 12 months after a claim for compensation was first made, or within 12 months after weekly payments ceased (whichever was the longer period), with an exception for injured workers with more than 30 percent whole person impairment.

Factual findings of the primary judge

1. [33]

   The primary judge accepted (at [54]) the following five factual propositions, which he had earlier recorded (at [39]):

2. [34]

   In accepting the fourth proposition referred to above, his Honour noted (at [88(1)]) that no suggestion was made that the respondent’s secondment to the role of Health Advisor departed from the broadly understood meaning of that expression, as a temporary transfer to another post or responsibility during which the terms on which the employees’ substantive employment as contracted are maintained, referring to the discussion by Allsop J in Eaton v Overland [2001] FCA 1834 at [190]-[191]. His Honour found that the evidence confirmed that the arrangement by which the respondent undertook the role of Health Advisor conformed with that description. Among other matters, his Honour referred to the respondent’s engagement under secondment being only for a temporary period (twelve months); the evidence of Mr Kruit (referred to above) that the respondent would maintain her clinical certificate to practice during that period; and the respondent’s intention to undertake part-time operational paramedic duties whilst engaged as a Health Advisor.

3. [35]

   His Honour found that the respondent’s “contract of employment, under which she was appointed to a position classified as a ‘paramedic’ [under the 2010 Award], subsisted during the period that she was engaged as a Health Advisor”: at [89].

4. [36]

   In accepting the fifth proposition referred to above, his Honour found that the respondent’s continued employment as a paramedic and the maintenance of such a position by the Ambulance Service during her secondment, meant that the 2010 Award could not be contracted out of, save for providing superior benefits to the respondent, and the State was thereby required to maintain her substantive classification as a ‘paramedic’ by the 2010 Award. Reference was made, among others, to Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 (Byrne v Australian Airlines) at 421.

5. [37]

   The primary judge concluded (at [95]-[96]):

6. [38]

   Consistent with the respondent’s concession that she was not an “operational paramedic” at the time of her injury, his Honour found that the respondent’s position of Health Advisor involved duties different to those of an operational paramedic: at [99]-[100]. He held that, at the time of her injury, the respondent was an employee of the State who was appointed and classified as a ‘paramedic’ but who was seconded to perform work of a disparate nature which involved different skills and responsibilities to the operational duties performed by a paramedic in the service of the Ambulance Service: at [101].

Primary judge’s reasons

1. [39]

   Having found the facts as indicated above, the primary judge identified the issue for determination as whether the respondent was, at the time of her injury, a ‘paramedic’ within the meaning and for the purposes of the exemption by virtue of her employment and classification under the 2010 Award as a ‘paramedic’, notwithstanding that, at that time, she was seconded to the role of Health Advisor in which she neither discharged, nor was rostered to discharge the duties of an operational paramedic: at [102].

2. [40]

   After referring to the principles of statutory construction (at [120]-[124]) and summarising the submissions of the parties (at [127]-[134]), the primary judge addressed the appellants’ reliance on certain extrinsic materials. His Honour set out (at [128(4)]) the following statement, made by Mr Shoebridge MLC in support of the legislative change which was ultimately made to the 2012 Amendment Act immediately before its passage:

3. [41]

   His Honour was satisfied that it was permissible to have recourse to the extrinsic material pursuant to s 34(1)(a) of the Interpretation Act 1987 (NSW) as the material confirmed, in his view, that the meaning of the exemption is the ordinary meaning conveyed by the terms of the provision, albeit in a manner which differed from that contended for by the appellants: at [138]. His Honour held that Mr Shoebridge’s comments cannot stand as a statement of meaning, referring to Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67 (Harrison v Melham) at 384 (Spigelman CJ), and continued (at [151]:

4. [42]

   His Honour observed that the dictionary definitions of ‘paramedic’ referred to by the appellants were of limited assistance: at [186]. Reference was made to the authorities warning of the limitations of dictionary definitions in statutory construction: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [25]-[30] (Mason P); Provisional Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560 (Mahoney JA).

5. [43]

   His Honour then addressed the question of construction in some detail, before stating his conclusion (at [222] and [228]) that the term ‘paramedic’ in the exemption denotes an employee who is classified as a paramedic by virtue of the operation of the 2010 Award (and, by necessary connection, is appointed to an approved position within the Ambulance Service). His Honour found that the respondent was such an employee at the time of her injury and hence, was exempt from the provisions of the 2012 Amendment Act. It was irrelevant, in his Honour’s view, that the respondent was not performing, or rostered to perform, operational paramedic duties at the time of her injury.

6. [44]

   In summary, his Honour’s reasons included, first, that the use of the indefinite article “a” before the words “police officer, paramedic or firefighter” grammatically indicated that the focus of the exemption was the particular designation of worker, rather than that the exemption only applied to certain characteristics or functional aspects of a person holding such an office or engagement: at [198].

7. [45]

   Secondly, having regard to the immediate context in which the words ‘a paramedic’ are used (that is, the words of association), each word in the exemption concerns the designation of an officer engaged in the discharge of emergency services in New South Wales, such as a member of the police force or, in the present case, appointed by the Ambulance Service: at [199].

8. [46]

   Thirdly, this construction is consistent with the general intent of the workers compensation scheme as revealed by the definition of ‘injury’ in the WC Act, s 4. The definition is not governed by whether a worker is performing particular duties at the time of the injury, but rather whether the injury arises out of or in the course of employment. There is no indication in the text of the exemption that the protection afforded should only extend to employee paramedics who are injured whilst performing operational duties or who are rostered to perform the same: at [200].

9. [47]

   Fourthly, the 2010 Award confirms this meaning. The definition of ‘paramedic’ in the Award concerns only the appointment of an employee and the attendant qualifications for that position: at [201].

10. [48]

    Fifthly, there is no adjectival qualification in the language of the exemption of the kind argued for by the appellants, such as that the exemption only operates upon the performance of particular duties by such officers: at [203]. Further, there is nothing in the language used in the exemption which would indicate that the Parliament intended that the words of the phrase “police officer, paramedic or firefighter” be given some unusual meaning or viewed as technical expressions or terms of art: at [202].

11. [49]

    Sixthly, there is no warrant for reading the additional word ‘operational’ into the exemption, so as to qualify the class of persons so designated: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[40].

12. [50]

    Seventhly, the narrow construction proposed by the appellants is inconsistent with the beneficial nature of the exemption. The exemption should be given a liberal construction, that is, the broadest meaning consistent with the text of the provision, here it being one that treats the exemption as operating by virtue of the classification of each nominated officer, not a narrower meaning such that employees, so classified, would only receive the protection of the exemption during the performance of operational duties (or being rostered to perform the same): at [210]-[211].

13. [51]

    Eighthly, the purpose of the exemption is to excise from the operation of the 2012 Amendment Act three key classes of emergency services personnel appointed to the service of the State in positions holding a title well-known to the community. His Honour found nothing in the Schedule indicating an intention in the legislature to remove the benefit conferred by the exemption in circumstances where those classes of emergency worker were temporarily removed (by secondment or otherwise) from the performance of frontline duties: at [220]. His Honour observed (at [221]) that it does not follow from either the emergency and lifesaving duties of this class of worker, or from the text of the exemption, that the legislature only intended to exempt that class of worker when performing emergency and lifesaving duties:

14. [52]

    His Honour concluded (at [222]) that the respondent, in her temporary position as a Health Advisor, fell within the field covered by the exemption whilstsoever she maintained her appointment and classification as a ‘paramedic’ in the employment of the State within the service of the Ambulance Service. That the Ambulance Service chose to maintain that appointment whilst the respondent was under secondment for various administrative reasons did not, in his Honour’s view, undermine the efficacy of that conclusion.

Grounds of appeal

1. [53]

   There are four grounds of appeal. Ground 1 is a general ground asserting that his Honour erred in finding that the respondent was a ‘paramedic’ within the meaning of the exemption at the time of her injury. Ground 2 is directed to challenging his Honour’s findings that (1) the respondent’s employment was covered by the 2010 Award at the time she received an injury and she was therefore a paramedic within the meaning of the exemption, and (2) her substantive position was that of a paramedic as covered by the 2010 Award.

2. [54]

   Ground 3 challenged his Honour’s approach to construction. It was contended that his Honour had failed to properly apply the correct principles of statutory construction, failed to have regard to the text, purpose and operation of the exemption or the purpose and operation of the WC Act as a whole, and took into account irrelevant considerations.

3. [55]

   Ground 4 challenged the relevance of the respondent’s substantive position as a paramedic covered by the 2010 Award. It was contended that what was relevant was that the respondent was neither discharging nor rostered to discharge duties as a paramedic in the seconded position of Health Advisor.

Appellants’ submissions

1. [56]

   The appellants’ written submissions were more refined than their grounds of appeal. Three errors were alleged in the reasoning and conclusion of the primary judge. It is appropriate to treat these asserted errors as encompassing the grounds of appeal.

2. [57]

   First, it was contended that the respondent’s duties as a Health Advisor do not fall within the ordinary meaning of the word ‘paramedic’. Reliance was placed upon the Macquarie Dictionary definitions of ‘paramedic’ and ‘paramedical’.

3. [58]

   Secondly, the appellants contended that it is irrelevant that at the time of the injury the respondent was seconded to the position of Health Advisor and that her “substantive position” was (as his Honour found) that of a paramedic. It was argued that the text of the exemption necessarily focuses attention on the “position” held at the time of the injury. The appellants contended that this required analysis of whether the injury was received by a paramedic at the time of the injury. That focuses attention on whether the relevant employee was a paramedic at that time. It was submitted that any other approach would create artificial results leading to the benefit of the exemption extending to injuries received by workers who were not working as paramedics but who may have “theoretically” retained such an appointment either for administrative or other reasons.

4. [59]

   Thirdly, the appellants contended that even if the classifications contained in the 2010 Award have contextual relevance for determining the meaning of the word ‘paramedic’ in the exemption, the position of Health Advisor was not a paramedic position covered by the 2010 Award. It was argued that it was insufficient that an employee is covered by the 2010 Award because they were initially “appointed” as a paramedic. What was relevant, on the appellants’ case, was whether the work that the employee is subsequently required to perform satisfies the classifications that are contained within the Award. Here, it was contended that the respondent’s position as Health Advisor was not an “approved paramedic position” within the meaning of the definition of ‘paramedic’ in cl 5 of the Award.

5. [60]

   The focus of debate on appeal was on the second of the alleged errors in his Honour’s reasoning – whether it was relevant that, at the time of the injury, the respondent retained her “substantive position” as a paramedic even though her seconded position was that of Health Advisor.

Decision

1. [61]

   The appellants’ first and third contentions can be dealt with briefly.

(a) Appellants’ reliance on dictionary definitions

1. [62]

   As his Honour correctly observed, there are limitations on the use of dictionary definitions in statutory construction. Dictionary definitions specify a range of meanings, rather than the particular meaning of the word in its context in a statute. The unhelpfulness of relying on dictionary definitions for statutory meaning has been reiterated recently in this Court: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409 at [81] (Leeming JA); TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [80] (Leeming JA, Beazley P and Emmett AJA agreeing).

2. [63]

   In the present case, the appellant’s reliance upon dictionary definitions of ‘paramedic’ and ‘paramedical’ raised a false issue. As mentioned, the primary judge found, as the respondent accepted, that the position of Health Advisor involved duties different from those of an operational paramedic and the performance of work of a disparate nature which involved different skills and responsibilities to the operational duties performed by a paramedic: at [99]-[101]. Accordingly, it was unnecessary to resort to dictionary definitions to identify the meaning of the word ‘paramedic’. It was not in dispute that the respondent’s position as Health Advisor did not answer the statutory description of a ‘paramedic’.

(b) Significance of the 2010 Award

1. [64]

   In attaching significance to the requirements of the classification as a ‘paramedic’ in the 2010 Award, his Honour was careful to distinguish the legal bases on which the 2010 Award applied to the respondent. One was the respondent’s temporary position whilst on secondment as a Health Advisor. The other was the respondent’s “substantive position” under her subsisting contract of employment as a ‘paramedic’.

2. [65]

   As to the respondent’s temporary position as a Health Advisor, the 2010 Award applied not by virtue of the classifications in that Award, but because the terms of the contract of secondment expressly provided for that Award to apply to the respondent’s position of Health Advisor (set out at [21] above). Contrary to the implicit suggestion in the appellants’ submissions, the respondent did not contend that the position of the Health Advisor was caught by the 2010 Award because it was an “approved paramedic position” within the meaning of the definition “paramedic” in cl 5 of the 2010 Award.

3. [66]

   As to the respondent’s “substantive position”, as his Honour found, the respondent’s contract of employment, under which she was appointed to a position classified as a ‘paramedic’ caught by the 2010 Award, subsisted during the period that she was engaged as a Health Advisor. That finding is not challenged on appeal. The contextual relevance of the 2010 Award for the respondent’s designation as a paramedic is that, notwithstanding her secondment to the temporary position of Health Advisor, the respondent maintained her appointment to a position classified as a ‘paramedic’ caught by that Award because her contract of employment subsisted during her secondment. That the respondent’s classification and status as a “paramedic” continued while on secondment to a different position, was an important feature of the secondment arrangement, for the reasons acknowledged by Mr Kruit in his evidence (see [24] above].

(c) The relevance of the respondents’ “substantive position” as a paramedic

1. [67]

   The interpretation of the exemption involves a question of statutory construction, which is to be “determined by reference to the text, context and purpose of the relevant Act”: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [10] (French CJ, Kiefel, Nettle and Gordon JJ) referring to earlier statements to that effect in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

2. [68]

   Starting with the text of the exemption, the following observations can be made. First, the exemption is concerned with a workplace injury received by a worker in one of the nominated classes. The concession afforded by the exemption is conferred on three occupations, all of which might be considered onerous, risky and critically important.

3. [69]

   Secondly, the subject matter of the exemption is an “injury received” by a worker who answers the statutory description of “a police officer, paramedic or fire fighter”. The reference to “injury received” directs attention to the definition of “injury” in s 4 of the WC Act, relevantly, a “personal injury arising out of or in the course of employment”.

4. [70]

   Thirdly, the exemption does not specify that any particular activity is required of a worker in one of the nominated classes to engage the exemption. Thus, the exemption can be seen to apply to those nominated classes irrespective of the actual task that the worker may be performing at the time of injury.

5. [71]

   Consistent with the above, the primary judge correctly found that nothing in the language of the exemption, or the WC Act as a whole, supports reading words of limitation into the concession afforded by the exemption, so as to confine the exemption to circumstances where the nominated class of worker is performing operational or “frontline” duties.

6. [72]

   Fourthly, and importantly, the exemption does not specify that any particular duties are required to be performed by the nominated classes of worker to engage the exemption.

7. [73]

   The constructional choice debated in this Court centred on whether the focus of the exemption is on the person’s designation or status as “a police officer, paramedic or firefighter” at the time of receipt of the injury (as the respondent argued) or the person’s function, that is, the duties the person is required to perform, at the time of receipt of the injury (as the appellants argued).

8. [74]

   If, as should be accepted, the language of the exemption is not to be construed as containing the adjectival limitation of “operational”, it may also be doubted that a functional limitation or qualification of the type suggested by the appellants was intended, there being no particular duties which the nominated classes of worker are required to perform to engage the exemption. The language used in the exemption, “… in respect of an injury received by a… paramedic”, is broad and unqualified. The better view is that whether a worker answers the statutory description in the exemption is determined by their designation or holding the status as a “police officer, paramedic or firefighter” at the time of receipt of an injury, not by reference to the duties they are required to perform.

9. [75]

   There are additional reasons for rejecting the appellants’ construction argument. First, the exemption can be seen to be beneficial legislation. The exemption conferred a concession on the nominated classes of workers from the detrimental effect of the changes to the workers compensation scheme introduced by the 2012 Amendment Act. Those detrimental changes included the amendments relating to medical and related expenses, introduced by Schedule 4 of the 2012 Amendment Act (which directly impacted upon the respondent) and the amendments relating to lump sum compensation for permanent impairment introduced by Schedule 2 of the 2012 Amendment Act, which are discussed in ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18; and Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250.

10. [76]

    While primacy must be given to the text, context and purpose of the WC Act and a court needs to be cautious about a priori assumptions based on its character or legislative history, the exemption attracts the principle stated by Deane J and Gaudron J (although in dissent on the facts) in Bird v The Commonwealth (1988) 165 CLR 1; [1988] HCA 23 at 9 that workers compensation legislation is remedial in its character “and, like all such Acts, should be beneficially construed”. Their Honours continued (at 9):

11. [77]

    The respondent submitted that the exemption is to be given the broadest meaning available consistent with the text of the provision. This submission requires some qualification. One is that the interpretation adopted must be “restrained within the confines of “the actual language employed” and what is “fairly open” on the words used”: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55 at 638. Another is that where a provision is to be given a liberal and beneficial construction, “a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural”: IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 12 (Brennan CJ and McHugh J).

12. [78]

    While the appellants accepted in argument that the exemption was a “broad exemption”, the construction advanced by the appellants would have the opposite effect of narrowing the exemption; it would exclude persons designated or holding the status of a “police officer, paramedic or firefighter” if their position did not require them to perform the duties of such nominated classes of workers at the time of receipt of an injury. To place such a qualification on the exemption which is broad and unqualified by the particular duties required to engage the exemption, would be inconsistent with the beneficial nature of the exemption.

13. [79]

    In my view, his Honour was correct to find that the focus of the exemption was the particular designation of worker, rather than certain characteristics or functional aspects of a person holding the office or engagement of one of the designated classes of worker. It should be accepted that it is the person’s designation or holding the status as “a police officer, paramedic or firefighter” at the time of receipt of an injury which engages the exemption. It cannot be said that this is an unreasonable or unnatural construction. Moreover, it is a construction fairly open on the words of the exemption without any distortion of the actual language used.

14. [80]

    Secondly, the appellants’ reliance on extrinsic materials does not assist their argument. Mr Shoebridge MLC’s speech was said to reflect a legislative intention that the exemption only apply to the workers in the nominated classes “who hold positions that require them to carry out the duties on the front line”. I do not agree.

15. [81]

    The appellants’ submissions misunderstood the import of Mr Shoebridge’s comments made when moving the amendment to cl 25 of the 2012 Amendment Bill. Mr Shoebridge’s speech continued beyond that part (extracted at [40] above) to advocate eligibility for all workers (regardless of occupation) to the entitlement, the subject of the proposed exemption, and also, that aside, to argue it would be grossly inconsistent to grant the exemption to some emergency service workers (the police, the Rural Fire Service, and the State Emergency Service workers) but not to other vital emergency service workers (employed firefighters and paramedics).

16. [82]

    The primary judge correctly characterised Mr Shoebridge’s comments as points of argument in advocacy of equality of outcome for workers, whether serving in a permanent or emergency capacity, holding the positions identified in the exemption without any intention to precisely delineate the scope of the exemption as contended for by the appellants: at [151]. As his Honour found, Mr Shoebridge’s comments do not disclose a particular view of the duties which all workers covered by the provision would be required to perform, or that the subject group of employees would only fall within the exemption if their duties required them to perform certain emergency duties.

17. [83]

    The primary judge was also correct to reject the appellants’ contention that the comments of Mr Shoebridge were directed to explicating the meaning of the term ‘paramedic’ (at [144]), noting that statements in Parliament, even by Ministers during the second reading debate, will seldom be available to elucidate the meaning of the later enacted text. As his Honour observed, referring to Harrison v Melhem at 399 (Mason P, Beazley and Giles JJA agreeing), “identification of mischief and purpose is one thing, statement of meaning is another”.

18. [84]

    For the reasons given above, the appellants’ ‘functional’ construction of the exemption should be rejected. It is necessary to now turn to the question of whether the respondent answered the statutory description of a “police officer, paramedic or firefighter” at the time of receipt of her injury.

The respondent’s contract of employment

1. [85]

   In oral argument, the parties’ submissions focused on the characterisation of the contractual terms of the respondent’s employment with the Ambulance Service. A number of matters were uncontroversial.

2. [86]

   First, the express terms of the respondent’s employment as a ‘paramedic’ included that “[t]he conditions of employment for this position of ‘paramedic’ are embodied in the NSW Ambulance Service Operational Ambulance (State) Award”, that is, the 2010 Award. Accordingly, while the terms and conditions imposed by the 2010 Award operated with statutory force, those terms and conditions of the Award also became terms of the contract: Byrne v Australian Airlines Ltd at 421; Re Pacific Coal Pty Limited; Ex parte: Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34 at [120] (McHugh J).

3. [87]

   Secondly, the respondent’s conditions of employment for the position of Health Advisor were also embodied in the 2010 Award as a matter of the express terms of the contract of secondment. Her conditions of employment therefore continued to be governed by the same Award (as a matter of contract) as that which governed her employment as a paramedic.

4. [88]

   Thirdly, while the respondent held a different position within the Ambulance Service during the secondment, she remained an employee of the Ambulance Service.

5. [89]

   Fourthly, the respondent’s contract of employment as a paramedic continued during the period of temporary secondment, subject to the variation brought about by the secondment, namely, her temporary position in the role of Health Advisor. That the respondent could continue in one public service position despite appointment to another position is provided for by Schedule 19 of the Public Sector Restructure Act (Miscellaneous Acts Amendments) Act 2009 (NSW) amending s 102A of the Public Sector Employment and Management Act 2002 (NSW) in the following terms:

6. [90]

   In addition, as the primary judge found, the respondent did not resign from the position of ‘paramedic’ and the State continued to deduct from her pay the amounts of her death and disability payments (in respect of her position as a paramedic): at [88(3)].

7. [91]

   Counsel for the appellants emphasised that there is a distinction between the “position” occupied by an employee and the “status” that the employee has pursuant to contractual terms governing the relationship between the employer and the employee. So much can be accepted. However, counsel for the appellants resisted the proposition that, following her appointment to the position of Health Advisor, the respondent maintained her status as a paramedic. It was contended that the letter of appointment altered the respondent’s status pursuant to her contract of employment as a paramedic because the respondent was appointed to the position of Health Advisor. I do not agree. That submission ignored the express terms of the secondment and conflated the concepts of ‘position’ and ‘status’ of an employee.

8. [92]

   The respondent was appointed to a temporary ‘position’, as she had sought, on a part-time basis as Health Advisor within the HAC Unit of the Ambulance Service. Her conditions of employment for this position were expressed (as a matter of contract) to be those embodied in the 2010 Award. Consistent with that, her salary for this position was set at 0.63 of the full-time earnings of a paramedic specialist year 1. Nothing in the letter from the Ambulance Service offering the secondment indicated that the position of Health Advisor altered the respondent’s status pursuant to her contract of employment as a paramedic; on the contrary, it implicitly reaffirmed it.

9. [93]

   The absence of any change to the respondent’s status as a paramedic when seconded to the position of Health Advisor in 2011 may be contrasted with the change of status which had earlier occurred in November 2003 when the respondent was reclassified as a “permanent part-time ambulance officer”. On that occasion, the terms of the 27 November 2003 letter of offer from the Ambulance Service expressly stated that the reclassification involved “a permanent change to your employment status” with no automatic entitlement to return to the previous part-time hours or full-time employment.

10. [94]

    There is a further matter which should be mentioned in support of the respondent’s status remaining unchanged as a ‘paramedic’ whilst on secondment. In her application for the position of Health Advisor, the respondent requested that she still maintain an operational paramedic role at other times, if mutually agreeable. That request was consistent with the evidence of the practice within the Ambulance Service that paramedics undertaking non-frontline work on secondment, were permitted to perform occasional operational paramedic duties in order to maintain their certificates of practice as paramedic specialists. The evidence of Mr Kruit, referred to above, confirmed that the Ambulance Service intended to permit and facilitate the respondent doing occasional paramedic work while on secondment.

11. [95]

    Counsel for the appellants properly accepted that the respondent’s contract of employment as a paramedic, as modified by her temporary secondment to the position of Health Advisor, did not prevent the respondent from performing paramedic duties on an occasional basis. Counsel, however, complained that the respondent did not contend below that the terms of her secondment permitted the respondent to perform paramedic duties on an occasional basis and emphasised that the primary judge made no finding to that effect. So much can be accepted, but that does not assist the appellants’ contention that the secondment changed the respondent’s status as a ‘paramedic’. The respondent remained classified as a ‘paramedic’ under the 2010 Award because she had been appointed to that position, and was permitted by the practice of the Ambulance Service to perform occasional duties as a ‘paramedic’ whilst seconded to the position of Health Advisor. In my view, the secondment did not affect her status as a ‘paramedic’.

12. [96]

    The appellants next submitted that the respondent could only obtain the benefit of the exemption whilst seconded to the position of Health Advisor if she received her injury at a time when she was performing duties on an “occasional” basis as a paramedic. The difficulty with this submission is that it relies upon the ‘functional’ qualification of the exemption which has been rejected for the reasons given above. That the respondent was not performing “occasional” operational duties as a paramedic at the time of her injury says nothing about her status as a paramedic whilst temporarily seconded to the position of Health Advisor. The answer to that question is to be found in the terms of the respondent’s contract of employment, not the imposition of a ‘functional’ qualification on the operation of the exemption.

13. [97]

    It should be accepted that the modification of the terms of the respondent’s contract of employment as a ‘paramedic’, brought about by her secondment to the position of Health Advisor, did not affect her classification as a ‘paramedic’ being the position to which she had been appointed under her subsisting contract of employment to which the 2010 Award applied. Since the respondent’s designation as a ‘paramedic’ was unaffected by her temporary secondment to a different position, the respondent answered the statutory description (contained within the exemption) of a person who at the time of receipt of her injury was a ‘paramedic’.

Conclusion and Orders

1. [98]

   The appellants’ challenge to the declaration made by the primary judge has failed. There was no error in his Honour’s finding that the respondent is exempt from the application of the changes to the workers compensation scheme introduced by the 2012 Amendment Act. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.

2. [99]

   Accordingly, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appellants to file a notice of appeal in terms of the draft contained in the White Book within ten days.

   3. (3)

      Appeal dismissed.

   4. (4)

      Appellants to pay the respondent’s costs of the appeal.

3. [100]

   SACKVILLE AJA: Subject to one matter, I agree with the orders proposed by Gleeson JA and with his Honour’s reasons.

4. [101]

   The language of the provision exempting certain categories of workers from the retrospective amendments [1] to the Workers Compensation Act 1987 (NSW) effected by the Workers Compensation Legislation Amendment Act 2012 (NSW) is relatively straightforward. The provision, [2] to which I refer as “cl 25”, states that the amendments:

5. [102]

   Clause 25 does not say that the exemption only applies to a police officer, paramedic or firefighter who is performing particular duties at the time the injury occurs. Thus a person employed as a paramedic who injures herself by tripping over a chair in head office is exempt from the amendments in the same way as a paramedic injured on the “front line” as the result of an assault by an inebriated patient. If a paramedic is temporarily seconded to another position, but retains her employment classification and status as a paramedic, as a matter of ordinary English she is aptly described as a “paramedic”. There is nothing in the text of cl 25 or in the amending legislation that provides a sound basis for reading the provision otherwise than in accordance with its ordinary meaning.

6. [103]

   It is not necessary in this case to consider the position of an employee who is not classified as a paramedic but who, at the time of the injury, performs the duties of a paramedic. However, the conclusion that cl 25 should be read in the manner I have indicated, does not necessarily mean that a person who is performing the duties of a paramedic, but who is not classified for employment purposes as a paramedic, is outside the exemption.

7. [104]

   The reservation I have is that I do not think it is necessary to characterise cl 25 as “beneficial legislation” in order to conclude that the respondent is within the exemption. The High Court has warned against what it regards as courts identifying desirable policy and imputing that policy to the legislation (as distinct from deriving the purpose from the text and context of the legislation). [3] However, it remains permissible to characterise legislation as “remedial” and, for that reason, to warrant a beneficial construction. [4]

8. [105]

   Clause 25 creates an exemption for three categories of workers from legislation which removes or reduces benefits to which a much larger group of workers was previously entitled. Whether a provision exempting three categories of workers, apparently considered to be deserving of special treatment, from the “detrimental changes” (as Gleeson JA describes them) should be characterised as “beneficial legislation” is perhaps doubtful.