Secretary of the Ministry of Health v Australian Paramedics Association (NSW)

By an Amended Summons filed 25 February 2022, the plaintiff, the Secretary of the Ministry of Health (“the Secretary”), sought an order in the nature of certiorari quashing a recommendation made in arbitration proceedings by the Industrial Relations Commission of New South Wales (“the Commission”) that the Secretary pay Aeromedical Control Centre Officers (“ACCOs”) an “on call allowance” in certain circumstances. The Secretary also sought declaratory relief. For the reasons that follow, the Amended Summons should be dismissed.

The Aeromedical Control Centre (“ACC”) is the control centre for the State-wide aeromedical operations of the Ambulance Service of NSW (“NSW Ambulance”). Since 1987-1988, the ACC (or, formerly, the Air Ambulance Base) has operated 24 hours a day, 7 days a week.

The plaintiff employs ACCOs in the ACC to coordinate aeromedical assets to ensure patients receive medical care and appropriate transport. When the matter was in the Commission, the Affidavit of Mr Paul Whitwell (who is the Manager of the ACC), filed and signed 10 January 2020, stated that the “key responsibilities” of ACCOs are as follows:

There are approximately 27 ACCOs employed in the ACC. They are employed under the Paramedics and Control Centre Officers Award 2019 (“the Award”). Approximately 12 of the ACCOs have a sub-specialisation of being Rapid Launch Trauma Coordinators (“RLTCs”). Mr Whitwell explained that RLTCs “are qualified ACCO's with additional certification in helicopter operations and are responsible for the coordination of helicopter and road retrieval vehicles”. In addition, the RLTCs monitor Triple Zero (000) calls and are the point of contact for search and rescue requests from NSW Police or the Joint Rescue Coordination Centre.

According to Mr Tom Kiat, who is an industrial officer at the first defendant, the Australian Paramedics Association (NSW) (“APA”), there are generally:

NSW Ambulance has a procedure for allocating overtime work, which can be summarised as follows:

On 29 August 2016, Mr Randal Carlisle, a paramedic who had previously been an ACCO and a Duty Aeromedical Officer, sent an email titled “Some Changes to ACC Procedures to Coincide with the release of the next Roster Commencing 10/9/16” to some recipients that included ACCOs (then titled Aeromedical Operations Officer (“AMOOs”)). That email stated:

Mr Whitwell forwarded Mr Carlisle’s email on 10 October 2016 to recipients that included the then equivalent of ACCOs. Mr Whitwell’s email made reference to the overtime allocation process but there was no suggestion he objected to or sought to correct Mr Carlisle’s description of the employees’ “on call” obligations.

The evidence of multiple ACCOs is that this procedure is used to request that they cover a vacancy that has arisen at short notice, either immediately or within a short period of time. The requests are either that they take an overtime shift or adjust their roster.

Mr Whitwell’s evidence is that ACCOs have been receiving a weekly on call allowance of $34.70 per week (or approximately $5,000.00 per annum) for over 30 years. However, his evidence is that, since he became the Manager in February 2011, he has not directed any ACCO, other than RLTCs or DAMs, to be on call as a requirement of their employment. Nevertheless, ACCOs would tick a box titled “On Call Week 1” and “On Call Week 2” when submitting their electronic fortnightly timesheets for approval on the system called “eTime”.

Mr Whitwell stated that an on call roster for ACCOs has not been implemented during his tenure as Manager nor have any ACCOs been required to be on call. He contrasts this with the current system for RLTCs where there is an on call roster.

In a conversation with Dr Sarah Coombes, A/Executive Director, Aeromedical Operations, about “sustainable funding for future growth”, Mr Whitwell identified the weekly on call allowance for ACCOs as being a “potential cost saving for the organisation”. This was in the context where ACC staffing had increased following the introduction of six ACCO Full Time Equivalents (“FTEs”). A review by the management found that there was no contractual basis for paying the on call allowance to ACCOs.

On 24 July 2019, Dr Coombes sent an email titled “Review of ACC On Call arrangements” to all ACC staff. Her email stated that there no longer existed a requirement under the Award to continue the payment of the on call allowance due to sufficient resourcing and 24 hour coverage by positions.

On 7 August 2019, Dr Coombes and Mr Whitwell advised that the on call arrangements were being reviewed and that payment of the allowance was to cease on the pay period commencing 17 August 2019. On 9 August 2019, following consultation with the APA and the second defendant, the Health Services Union of New South Wales (“HSU”), Dr Coombes advised staff that the proposal to cease paying the allowance was suspended.

On 9 October 2019, Mr Whitwell sent an email titled “Review of ACC On Call arrangements” and advised that payment of the weekly on call allowance would now cease in the pay period commencing 7 December 2019. The relevant parts of his email are as follows:

On 6 November 2019, the APA notified the Commission of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (“IR Act”) (“Primary Proceedings”). The respondent was the Secretary and leave was granted for the HSU to intervene in the proceedings.

The matter was listed for a compulsory conference on 15 November 2019 before Commissioner Murphy. On that occasion, the representative for the Secretary stated, with reference to the email sent on 29 August 2016, that:

On that same day, the Commissioner made a recommendation that NSW Ambulance “continue to pay the allowance that is in dispute to the officers receiving it until this matter is heard and determined by the Commission”. The Commissioner also issued a certificate of attempted conciliation pursuant to s 135(2) of the IR Act.

It is noteworthy that the crux of the dispute before the Commission was whether the ACCOs are entitled to the on call allowance. There was no controversy that ACCOs who are performing the role of an RLTC are entitled to receive the allowance. It follows that the controversy between the parties which is the subject of this decision is confined to those ACCOs who are not performing the duties of an RLTC.

The matter was arbitrated before Commission Sloan on 30 and 31 January 2020. The Commissioner made a recommendation in Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance (On Call Allowance for Aeromedical Control Centre Officers) (No 2) [2020] NSWIRComm 1028 (“Primary Decision”) on 20 April 2020. The Commissioner gave a detailed exposition setting out his views as to whether ACCOs have an entitlement to the on call allowance, first, under the Award and, secondly, under their employment contracts in support of the recommendation.

On the first issue as to whether there is an entitlement to the allowance under the Award, the Commissioner rejected the Secretary’s submission that the on call allowance is payable only in return for the performance of work: at [52]. The Commissioner also rejected the APA’s submission that the allowance should be paid simply by being available to take a telephone call offering the opportunity for overtime or a shift swap: at [55]. Instead, the Commissioner preferred the view taken by Chief Commissioner Kite SC in Australian Paramedics Association (NSW) v Health Secretary (NSW Ambulance re Disturbance Allowance) [2020] NSWIRComm 1020. In that case, the Chief Commissioner had held at [30] that the “call” referred to in the on call provisions of the Operational Ambulance Officers (State) Award (which was identical to cl 23 of the Award) is not to a telephone call but “a requirement to be on call with all the obligations that entails”. The Chief Commissioner stated at [37] that recipients of an on call allowance “are obliged to hold themselves in readiness to respond, and to respond if called” and that “[t]he on call allowance is not a benefit applicable to a recall and is payable whether or not the officer is recalled to duty”.

In the Primary Decision, Commissioner Sloan noted that ACCOs (other than RLTCs) are not rostered to be on call, not obliged to accept offers to work overtime (although they generally attempted to assist out of a sense of duty) and none of the ACCOs who gave evidence have ever been compelled to work overtime against their wishes: at [56]. In these circumstances, the Commissioner held that the arrangements under which ACCOs work are not “on call” arrangements as that term is generally understood and not properly contemplated by the language of cl 23 of the Award.

The Commissioner found, after reviewing the emails of Mr Carlisle and Mr Whitwell in 2016 and Dr Coombes’ email in 2019, that they “suggest[ed] an acceptance by NSW Ambulance that there was at one point an entitlement for ACCOs to receive the Allowance under the Award”: at [62]. The Commissioner found that some of the evidence “might support an argument that NSW Ambulance has historically and deliberately adopted a construction of “on call” for the purposes of cl 23 [of the Award] which was peculiar to the ACCOs, having regard to their particular working arrangements, but they fall short of establishing the fact”: at [64].

Overall, the Commissioner did not consider that the ACCOs have an entitlement to the Allowance arising under the Award: at [67].

On the second issue as to whether there is a contractual entitlement to the on call allowance, the Commissioner held that a term may be implied into contract on the basis of custom or usage: at [79]. In summary, the Commissioner found:

On the basis of this evidence, the Commissioner held that the contracts of employment for the ACCOs included an entitlement to payment of the allowance on the basis of usage: at [91].

The Commissioner then turned to consider whether s 116A of the Health Services Act 1997 (NSW) (“HS Act”) precluded the importation of a term on the basis of usage. The Commissioner held that, to the extent that representations regarding payment of the allowance may have been made by Mr Whitwell or other managers, there was no evidence that any of them had the necessary delegation from the Secretary under s 21 of the Health Administration Act 1982 (NSW) (“HA Act”) to fix conditions of employment under s 116A of the HS Act: at [93].

The Commissioner held that the implication of a term through usage is not dependent on representations having been made by people with authority to make them. In construing statutory provisions, an interpretation that is “consonant” with the general law and common law doctrines is preferred because Parliament is presumed not to override those doctrines “without the very clearly expressed intention to do so”: at [100]-[101].

The Commissioner held that the words “in so far as they are not fixed by or under any other law” appearing in s 116A of the HS Act could extend to terms and conditions “fixed” by reference to the common law principle of usage. At [103]-[104], the Commissioner stated:

Overall, the Commissioner was satisfied the on call allowance was an entitlement of the ACCOs’ contracts of employment, arising from usage: at [105].

In other matters, the Commissioner found that there was an insufficient basis on which to find any failing by NSW Ambulance of its obligations to consult: at [106]-[107]. The Commissioner also rejected the submission of the Secretary that there would be wider ramifications and set a precedent for other employees covered by the Award and other awards for on call payments: at [108]-[109].

The Commissioner then made a recommendation at [119] in the following terms:

On 11 May 2020, the Secretary filed an application for leave to appeal and an appeal from the Primary Decision pursuant to s 187 of the IR Act (“Appeal Proceedings”). The application was heard by Chief Commissioner Constant, Commissioners Murphy and Webster on 15 October 2020 and judgment was delivered almost one year later on 8 October 2021 in Secretary, Ministry of Health v Australian Paramedics Association (NSW) [2021] NSWIRComm 1077 (“Appeal Decision”).

The Full Bench refused leave to appeal. The reasons were succinctly stated at [37] in the following terms:

The Full Bench noted that the amount in dispute (which was approximately $1,300 per week, that is, approximately $100 per week for 13 ACCOs who the Secretary suggested was not entitled to it) was not significant in the context of the overall spending of the Secretary: at [38]. Further, the Primary Decision resulted in a recommendation, which has no binding effect on the parties and is ultimately unenforceable.

The Full Bench concluded that the issue as to usage had not been adequately argued in the Primary Proceedings and the submissions of the parties in the Appeal Proceedings did not address in sufficient detail the authorities of this Commission as they relate to the concept of usage within the industrial relations context: at [50], [62]. The Full Bench referred to NSW Nurses’ Association & Ors v South Western Sydney Area Health Service [1994] NSWIRComm 147 (Bauer A-VP, Schmidt J and Conciliation Commissioner McKenna), Gillies and Ors v Health Administration Corporation and Anor [2003] NSWIRComm 243 (Schmidt J) (“Gillies”) and Nurses and Midwives’ Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) (No 2) (2013) 231 IR 224; [2013] NSWIRComm 29 (Boland J, President, Walton J, Vice-President, and Staff J).

The Full Bench held that the circumstances of the ACCOs are distinctive and warrant consideration being given to the making of an award that took into account all the factual circumstances: at [67]. The Full Bench put the parties on notice that it intended to issue a summons to show cause why the Commission should not, on its own motion, make or vary an award relating to preservation or removal of the allowance for ACCOs: at [69]. The availability of this course was accepted by counsel for the Secretary in the Appeal Proceedings, Ms Elizabeth Raper (as her Honour then was), at [68].

Before turning to other matters, I have occasionally used the expression “decision” to refer to the recommendation made by Commissioner Sloan and the Full Bench’s adjudication as a matter of convenience as that was the approach generally adopted by the parties. However, the use of that expression should not be taken as derogating from the analysis in this judgment as to what the true nature and effect of the recommendation made by the Commissioner was in law and practice or any counterpart adjudication by the Full Bench in that respect. Nor, as I will discuss, should the use of the descriptor be taken as definitively suggesting that an appeal did lie from the recommendation made by the Commissioner or that the observations by the Commissioner in support of his recommendation take on the status of a decision within the meaning of that term in the IR Act. The Commissioner’s statements in support of the recommendation do not declare rights and obligations of parties either in law simpliciter or by way of precedent.

On 30 December 2021, the Secretary filed a Summons in this Court seeking judicial review of both the Primary and Appeal Decisions. Shortly thereafter, the APA and HSU noted, in their respective Response to Summons filed on 27 January 2022 and 18 January 2022, respectively, that the Secretary had given no reasons or grounds for an extension of time. Pursuant to orders made by Registrar Jones on 31 January 2022, the Secretary filed an Amended Summons on 25 February 2022 with the consent of the defendants.

The Amended Summons articulated eight grounds of review but counsel for the Secretary indicated at the hearing that grounds 6-8 were no longer pressed. Grounds 1-5 under the Amended Summons were articulated as follows:

At the hearing, the Secretary helpfully set out the questions for determination. The APA and HSU also considered that those questions were appropriately formulated. The questions are as follows:

This case concerned the powers and jurisdiction of the Commission when dealing with an industrial dispute by conciliation and arbitration. In the comprehensive second reading speech for the Industrial Relations Bill 1995 (NSW) (“the 1995 Bill”), the then-Attorney General and Minister for Industrial Relations, the Hon Jeffrey W Shaw QC (later a Judge of this Court), relevantly stated as follows (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3850-3851):

The principles governing the conciliation and arbitration of industrial disputes under Ch 3 of the IR Act was recently the subject of detailed consideration in Health Secretary v NSWNMA, especially at [23]-[35].

As the second reading speech makes clear, the purpose of Ch 3 of the IR Act is to allow employers and industrial organisations to utilise the expertise of the Commission to resolve an industrial dispute. This commences with a notification to the Commission under s 130 of the IR Act, which begins a process whereby the Commission will attempt to resolve the industrial dispute by conciliation. In Health Secretary v NSWNMA, I stated at [23]-[26] as follows

Conciliation is “principally designed to focus on the issues in dispute and to bring about a quick, fair and just resolution of those issues by agreement or upon the basis of the Commission’s non-binding recommendation or direction and with a minimum of legal technicality”: Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013] NSWIRComm 63 at 273-274 [46] (Boland J, President, Walton J, Vice-President, and Staff J).

Where conciliation does not resolve an industrial dispute, the Commission may then deal with the dispute by arbitration: see, eg, Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2008] NSWIRComm 250 (Walton J, Vice-President). In Health Secretary v NSWNMA, I stated at [27]-[28] and [33] as follows:

In Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263 (“Education Secretary v AEU”), I outlined the aspects of s 135 of the IR Act at [48] as follows:

If a certificate of attempted conciliation is made, the Commission immediately moves to arbitration. The system of arbitration established under the IR Act envisages that the Commissioner, when arbitrating a dispute, is “an entire stranger to the dispute and to the parties”: R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 342 (Taylor J); [1956] HCA 10. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1; [1910] HCA 33 (“Whybrow’s Case”), Griffith CJ stated at 25 that “the argument that the word “arbitration" connotes that the function of an arbitrator is a judicial function which can only be exercised between the parties to a dispute, and after hearing them, is incontestably right”.

In arbitrating an industrial dispute, the Commission is, at the very least, a quasi-judicial body and is accordingly obliged to accord procedural fairness and act judicially: Health Secretary v NSWNMA at [345], [351] (Walton J). In arbitration, the Commissioner must “act on the ordinary principles of justice involved in the necessity of allowing a hearing to all parties to the difference on which it must decide, and of abstaining from involving in its decision interests of others than the parties to the difference. It is not absolved from this duty by the fact that a Statute has imposed it on the parties as their tribunal, or has compelled them to submit their differences to it”: Whybrow’s Case at 36-37 (Barton J).

The role of the Commissioner in arbitration is to consider the industrial merits of the case, take into account the public interest, the objects of the IR Act and the state of the economy of New South Wales and the likely effect of its decisions on that economy: s 146(2) of the IR Act.

In exercising their functions, s 175 of the IR Act provides the Commission with the power to interpret a law or instrument. Section 175 states as follows:

The powers of the Commission in arbitration are very broad and s 136(1)(a) of the IR Act expressly contemplates the making of a recommendation to the parties to the dispute. Section 136 of the IR Act provides:

It must be remembered, when construing these powers, that Parliament had understood that arbitration was the final stage of resolving an industrial dispute and the result should produce finality. In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305, the Full Bench (Wright J, President, Walton J, Vice-President and Commissioner Stanton) stated at 403-404 [37] that, in furthering the objects of the Act, “it is vital that the Commission recognise the broad discretion granted by [the IR Act] to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it”. This involves a variety of considerations, including the “public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation”. This passage was cited approvingly in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 at 791 [128] (Bathurst CJ with whom Gleeson and Simpson JJA agreed), Health Secretary v NSWNMA at [39] (Walton J) and BlueScope Steel (AIS) Pty Ltd v Australian Workers’ Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 at [24]–[26] (Wright J, President, Walton J, Vice-President, and Marks J).

The powers given by s 136(1) of the IR Act can be summarised as follows.

The power to make a recommendation is a non-coercive power. In The Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081 (“LGEANSW v MidCoast Council”), Commissioner Muir said at [73]:

A recommendation is not legally binding or enforceable. The purpose of this power is so that the Commission can give non-binding guidance to the parties or encourage a course which does not bind the parties. As Commissioner Muir described it, it is a “suggestion”. A failure to comply with a recommendation can not result in any penalty, does not amount to contempt and has no legal consequences.

The Commission’s views come with the authority of a trusted specialist institution which results in recommendations being very persuasive. However, by its nature, the making of a recommendation is an unusual step and remains nonetheless non-coercive and having no legally binding effect. It stands in contrast to a direction under s 136(1)(a) of the IR Act which is usually seen by the Commission as an elevated step over the making of a recommendation.

The word “direction” is inherently mandatory and is an instruction by the Commission to do or refrain from doing something. The word “or” in s 136(1)(a) of the IR Act makes it a counterpoint to a recommendation. Thus, a direction can have coercive force and a failure to comply with a direction can give rise to proceedings for contempt of the Commission under s 180 of the Act: Public Service Association and Professional Officers’ Association Amalgamated Union of NSW South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061 at [86] (Chief Commissioner Kite SC, Commissioners Murphy and Seymour).

The Commission can, pursuant to s 136(1)(b) of the IR Act, make or vary an award that sets “fair and reasonable conditions of employment for employees” (s 10 of the IR Act). (For the relevant principles for making new awards, see generally City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 at 390-391 [19]-[22] (Walton J, President, Commissioners Stanton and Newall). For relevant principles for varying existing awards, see generally Health Secretary v NSWNMA at [467].) Under s 12 of the IR Act, an award binding on all employees and employers to which it relates as well as any industrial organisations that were a party to the making of the award.

The Commission can make dispute orders under s 136(1)(c) of the IR Act. A contravention of dispute orders can result in proceedings commenced in this Court under s 139 of the Act, which can result in, amongst other things, the imposition of a penalty. Section 137 relevantly provides the kinds of dispute orders that can be made as follows:

Lastly, the Commission can “make any other kind of order it is authorised to make (including an order made on an interim basis)” under s 136(1)(d) of the Act. This can include a power under another provision of the IR Act or another law.

In that broader framework, the power to make a recommendation is very important for the fair, just and expeditious resolution of industrial disputes. To explain why, I need to first distinguish the recommendation powers in conciliation and arbitration. In conciliation, the Commission has the power to make a recommendation to facilitate good faith bargaining: s 134(4) of the IR Act. And the Commission also has the power to make a recommendation to assist the parties to agree on terms for the resolution of the dispute: s 134(2) of the IR Act.

The Commission’s arbitral powers only arise after conciliation has not been able to resolve the industrial dispute. As the Commission only moves to arbitration if reasonable attempts have been made and those attempts have been unsuccessful, the recommendation powers operate in different circumstances and need to be distinguished. Of course, the Commission may revert at any stage to conciliation during arbitral proceeding as long as clear boundary lines are drawn between the one and the other.

Nonetheless there are important similarities between conciliation and arbitration recommendations which are important to the exercise of the Commission’s powers in both cases and have significance in this matter. The conciliation recommendation power and arbitration recommendation power share a common object “to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations”: IR Act s 3(g).

Even in arbitration, the Commission will keep a wary eye on the prospect of producing cooperation between the parties and exploring means of resolving dispute without the need for coercive directions, orders or awards.

Thus, the arbitration recommendation power is a rare but significant tool in the Commission’s dispute resolution processes. Having been more fully appraised of the positions of each party and potentially having heard evidence or argument, the Commission would be in a better position to consider what is fair, reasonable and just in the resolution of a dispute than may exist at the conciliation stage. In these circumstances, the Commission may decide that it may be most appropriate in the circumstances not to immediately proceed to making any coercive order but instead assist the parties to settle their respective claims and so that the industrial dispute can come to an end: see, eg, Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2 at [12]-[19] (Walton J, Vice-President) (“Teachers Award”); NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Tamworth Council [2009] NSWIRComm 1008 at [40]ff (Commissioner Cambridge). It will be for the Commission to judge the utility of this measure and the implications of any loss of time or resources of the Commission if the member of the Commission was unable to further sit in the proceedings because of the giving of an arbitration recommendation.

An example of where the recommendation power can be important is in the face of threatened or ongoing industrial action. After conciliation, the Commission could make a recommendation that any industrial action be lifted immediately whilst the merits of the industrial dispute are being arbitrated: see, eg, Ambulance Service of NSW and Health Services Union NSW (No 2) [2012] NSWIRComm 115. Depending on the circumstances, taking this course may be preferable to immediately rushing to make dispute orders. That is because members of a union may be more likely to call off a strike if this was urged upon them by the leadership of their union (who had considered and accepted the Commission’s recommendation) than if this was compelled by a dispute order made by the Commission. Of course, there are some circumstances where recommendations were not accepted or successful or appropriate to be made and a dispute order became necessary: see, eg, Director-General NSW Department of Education and Communities and New South Wales Teachers' Federation [2012] NSWIRComm 54. Nevertheless, where a dispute could be resolved by a recommendation, this was generally the preferable course for the Commission.

It is therefore important to acknowledge that the Commission can make a recommendation to do something that otherwise can not be made in the form of a direction, dispute order or award (whether because of a legal technicality or otherwise) or where it is highly undesirable to make a coercive order: see, eg, LGEANSW v MidCoast Council at [71]; Australian Education Union, NSW Teachers Federation Branch v Department of Education [2019] NSWIRComm 1039 at [91] (Commissioner Tabbaa AM FRSN). A recommendation can also provide for a procedure by which any remaining unresolved issues can be resolved: see, eg, Teachers Award at [14].

Thus, the Commission may recommend that a party do something even though there may not necessarily be a legal requirement or entitlement that it be done. This applies for the recommendation power in both conciliation and arbitration. For example, in State Transit Authority of NSW v Rail Tram and Bus Union (NSW Branch) [2010] NSWIRComm 9, the Commission in conciliation proceedings recommended that the offer made by the State Transit Authority, which involved a 3% increase per annum over two years, be accepted by the union and its members. It was noted that, if the dispute proceeded to arbitration, the effect of the NSW Government’s Wages Policy would mean that any wage increase above 2.5% per year was required to be funded by employee-related cost savings and the Commission would be bound to have regard to that position: at [8] (Boland J, President).

The Commission should not, of course, recommend that a party do something that is unlawful. But the power to make a recommendation under s 136(1)(a) of the Act is expressed in the broadest sense as to give a very wide discretion to the Commission – a body composed of members steeped in knowledge and experience in industrial relations in this State – to take a course that it considers is best to assist in the resolution of the industrial dispute. The power, however, is not unfettered. A recommendation needs to, of course, relate to the industrial dispute and further its resolution. But this Court, in exercising its inherent supervisory jurisdiction over inferior courts and tribunals, should be mindful of Parliament’s intent to confer broad powers and wide discretion on a specialist industrial relations body particularly in the making of conciliation and arbitration recommendations. Parliament had clearly intended that the members of the Commission could draw on their learning and expertise in resolving industrial disputes in a fair and just way – a function that the Commission has performed for over 120 years.

An appeal against a “decision” of the Commission constituted by a single member lies to the Full Bench, which is to consist of at least three members: IR Act ss 155(1)(b), 156(1), 187(1). The term “decision” is not defined by the IR Act but r 1.4 of the Industrial Relations Commission Rules 2009 (NSW) broadly defines a “decision” to include “any award, order, direction, contract determination or ruling”. A recommendation is clearly not an award, order, direction or contract determination. I have some doubts that a recommendation could be considered a “ruling” because it merely gives a suggestion and does not involve deciding any question or issue nor have any binding or enforceable result.

In Rail Corporation New South Wales and Australian Rail Tram and Bus Industry Union, New South Wales (2008) 174 IR 121; [2008] NSWIRComm 101 (“RailCorp v ARTBIU”), Commissioner McKenna, albeit in dissent, held at 136-138 [85]-[88] that a recommendation was jurisdictionally amenable to an appeal. Schmidt and Staff JJ, who were in the majority, appear to implicitly agree with Commissioner McKenna’s conclusion on this point given that their Honours decided to uphold the appeal and set aside the recommendation. This Court is not bound by decisions of the Full Bench even when the Full Bench was constituted by judicial officers: Health Secretary v NSWNMA at [326]-[329]; Education Secretary v AEU at [322]-[324]. With the greatest respect to their Honours and the Commissioner, I have some doubt as to the correctness of their decision. However, as no party raised this issue and it is unnecessary for me to decide whether a recommendation can be appealed to the Full Bench in order to determine these proceedings, I will assume in the remainder of this judgment that recommendations can be the subject of an appeal.

An appeal brought pursuant to Ch 4 Pt 7 of the IR Act requires leave of the Full Bench unless made by the Minister: ss 188(1), (4). The Full Bench 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 188(2). In the second reading speech of the 1995 Bill (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995), the then-Attorney General and Minister for Industrial Relations relevantly stated (at pages 3852-3853) as follows:

In Health Secretary v NSWNMA, I summarised the proper principles for the granting of leave by the Full Bench at [21]-[22] as follows:

I note that the Full Bench in the Appeal Proceedings stated at [28] that they applied the principles set out by Chief Commissioner Kite SC, Commissioners Sloan and Webster in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 at [27]-[30]. Those passages refer to the enunciation of principles in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16 at 416 [10]-[11] (Walton J, President, Kite AJ and Commissioner Newall) and Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 at [12]-[13] (Acting Chief Commissioner Tabbaa AM, Commissioners Stanton and Newall). I discern no inconsistency with the principles articulated in those cases and the principles that I identified in Health Secretary v NSWNMA.

Before the commencement of the Public Sector Employment Legislation Amendment Act 2006 (NSW) (“the 2006 Amendment Act”), the Ambulance Service of New South Wales was a statutory corporation that represented the Crown in right of the State of New South Wales: Ambulance Services Act 1990 (NSW) (repealed) s 4 (“AS Act”). (See also previous repealed statutes including the Ambulance Services Act 1976 (NSW) (repealed), Ambulance Service Act 1972 (NSW) (repealed) and Ambulance Transport Service Act 1919 (NSW) (repealed).) The Ambulance Service could “appoint and employ such employees as may be necessary for the purpose of exercising its functions” (AS Act s 13(1)) and “make and enter into contracts or agreements with any person for the performance of services” (AS Act s 19(1)).

Section 15(1) of the AS Act provided that “[t]he conditions of employment, including salaries, wages and remuneration, of the employees of the Ambulance Service (other than the Chief Executive Officer) are to be as determined from time to time by the Health Administration Corporation, except in so far as provision is otherwise made by law”. Under s 15(6)(a) of the AS Act, the Ambulance Service was required give effect to any determination made by the Health Administration Corporation (“HAC”).

The 2006 Amendment Act repealed the AS Act and inserted Ch 5A into the HS Act. The effect of the amendments was that the Ambulance Service would no longer be a statutory corporation. Instead, the 2006 Amendment Act transferred the ambulance functions to the NSW Health Service as a distinct and separate service within it and, importantly, made Ambulance Service employees and other public sector employees the direct employees of the Crown rather than individual statutory corporations.

The second reading speech of the 2006 Amendment Act shows that the mischief behind that Act was to prevent these public sector employees from being subject to the Federal industrial relations system, which had then been significantly reformed by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“Work Choices Act”): New South Wales, Parliamentary Debates, Legislative Assembly, 7 March 2006 (The Hon John Watkins MP, Deputy Premier and Minister for Transport). This was considered necessary because the Work Choices Act was made pursuant to the corporations power in s 51(xx) of the Commonwealth Constitution and there was a risk that “key front-line employees, such as nurses, ambulance staff, TAFE teachers and support staff, home care workers, and other employees of statutory corporations” would, as a result of the Work Choices Act, be subject to the “deleterious effects of the WorkChoices legislation”.

Following the 2006 Amendment Act, ACCOs are employed by “the Government of New South Wales”, which refers to the Crown in right of the State of New South Wales: see Health Secretary v NSWNMA at [127], citing Chapman-Davis v New South Wales (2015) 90 NSWLR 533; [2015] NSWIC 10 at 538 [12]-[15] (Walton J, President); Re Operational Ambulance Officers (State) Award (No 4) (2016) 255 IR 193; [2016] NSWIRComm 2 at 196 [6], [8] (Walton J, President, Kite AJ and Commissioner Tabbaa).

Section 116(3) of the HS Act (NSW) empowers the Secretary of the Ministry of Health to exercise on behalf of the Crown the employer functions of the Government in relation to the staff employed in the NSW Health Service (subject to a number of enumerated exceptions relating to certain executive positions in local health districts and specialty network governed health corporations). Section 116H of that Act also provides that the Secretary is “taken to be the employer” for the purposes of industrial proceedings: see discussion in Health Secretary v NSWNMA at [127]-[128].

The Secretary is empowered by s 21 of the HA Act to delegate their functions. Sub-s (1) provides:

Section 116A(1) of the HS Act, which was the subject of much argument and consideration in this case, provides:

The Secretary noted that she requires an extension of time to commence these proceedings in relation to the Primary Decision but does not require an extension of time in relation to the Appeal Decision. The Secretary submitted that the circumstances of this case is “on all fours” with Wattie v Industrial Relations Secretary [2017] NSWSC 1662 at [71] (Adamson J) (“Wattie”).

The reason for the delay is because the Secretary first sought leave to appeal from the Primary Decision pursuant to ss 187 and 188 of the IR Act. The Secretary submits that this was an appropriate course because it was open to the Full Bench to correct the errors in the primary decision now and, had the Secretary sought judicial review instead of appealing to the Full Bench, it would have been open to the Court to deny a remedy in judicial review proceedings on the basis that the plaintiff had failed to exhaust her alternative appeal remedies.

The Secretary noted that, in relation to ground 5 in the present proceedings, which relates to the Appeal Decision and is not time-barred by r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), it would be necessary for this Court to decide whether there was a jurisdictional error in the Primary Decision and, if this Court were to decide that there was such an error, it would be inappropriate to allow the Primary Decision to stand.

The APA submitted that the plaintiff’s prospects of success are low and there has been prejudice to the APA caused by the delay. It was submitted that Wattie may be distinguished because the Appeal Decision was not grounded on jurisdictional error but rather focused on errors in the Primary Decision that were within jurisdiction.

The HSU also opposed an extension of time. Counsel for the HSU emphasised that the Secretary did not ground its appeal to the Full Bench on jurisdictional error and thus the Secretary was not waiting to have the Full Bench consider whether it was operating in accordance with its jurisdiction as that question was not raised in the Appeal Proceedings.

The HSU also submitted that the proceedings in the Commission have only been related to an unenforceable recommendation, the underlying dispute is still before the Commission and there are little prospects of success.

Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

The relevant principles governing to an extension of time were stated by Pepper J in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34] as follows:

As noted above, the date of the Primary Decision was 20 April 2020. The Secretary filed an application for appeal 21 days later on 11 May 2020. The date of the Appeal Decision was 8 October 2021 and the original Summons in this proceeding was filed 30 December 2021, which was within three months. The Secretary is seeking an extension of 17 months for the Primary Decision.

In Wattie, Adamson J stated at [71]:

Wattie concerned judicial review of a decision by Commissioner Murphy in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036. The Industrial Relations Secretary appealed to the Full Bench (Acting Chief Commissioner Tabbaa AM, Commissioners Stanton and Newall), which refused leave to appeal: Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007. Nothing in the Full Bench’s decision or the proposed grounds of appeal, as set out in [22]-[30] of Adamson J’s decision, expressly states that the appellant raised jurisdictional error in the Full Bench. It appears that, when the matter was before the Full Bench, the Industrial Relations Secretary may not have expressly articulated that Commissioner Murphy’s decision was vitiated by jurisdictional error although some of the grounds, if made out, could amount such error.

In any case, I respectfully agree with the general thrust of Adamson J’s view in Wattie. This is because judicial review remedies are discretionary and will not be granted unless a party has used a statutory right of appeal where one is available. In Bragg v Department of Employment, Education and Training (1995) 59 FCR 31, the Federal Court dismissed an application for review because the Disciplinary Appeal Committee was available for public service employees to raise complaints about disciplinary decisions. Davies J stated at 33-34 that:

It was therefore reasonable for the Secretary to first seek leave to appeal from a decision of a single Commissioner to Full Bench before coming to this Court. This is especially the case because some of the grounds advanced by the Secretary in the Full Bench (although not before this Court) related to alleged errors of fact.

However, one aspect of Wattie is distinguishable to this case. In Wattie, the ground for judicial review (that is, whether Commissioner Murphy took into account relevant considerations) was one of the proposed grounds of appeal in the Full Bench (had the Full Bench granted leave). In this case, however, whether Commissioner Sloan had denied procedural fairness to the Secretary (ground 1) was not before the Full Bench. The arguments about procedural fairness are fresh before this Court and was not before the Full Bench.

Counsel for the Secretary submitted that this is “because the Full Bench is not the forum in which to raise jurisdictional error”. That submission must be rejected. In Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58, the High Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the person’s only right of redress against a decision-maker's failure to give them an opportunity to be heard before making a decision was by way of appeal: see, especially, 113-117 (Mason J, as his Honour then was).

The submission of the Secretary also ignores decades of history and practice of the Commission and fundamentally misunderstands its appellate jurisdiction. There have been many decisions where the Full Bench has considered grounds of appeal that would amount to jurisdictional error or were on the ground that procedural fairness was denied: see, eg, Webb v Goulburn Masonic Village (2004) 136 IR 309; [2004] NSWIRComm 258 (Boland J, as his Honour then was, Staff J and Commissioner Bishop); Windrum v Matrix Healthcare Pty Ltd (2008) 180 IR 221; [2008] NSWIRComm 146 (Boland J, President, Walton J, Vice-President, and Backman J); Lord v Flight Centre Ltd (No 2) (2006) 156 IR 420; [2006] NSWIRComm 282 (Walton J, Vice-President, Schmidt J and Deputy President Grayson). There is nothing in the IR Act or general principle as to the operation of the IR Act which would confine the scope of the Full Bench as to jurisdictional errors.

It is not insignificant that the procedural fairness ground has only been made for the first time in this Court. Applying the proper principles for granting leave to appeal that I set out in Health Secretary v NSWNMA at [21] (which are set out above), the Full Bench may have been more likely to grant leave to the Secretary to appeal from the Primary Decision had the procedural fairness ground been raised. The Secretary elected not to raise the procedural fairness ground in the Full Bench.

For the reasons given below, I agree with the characterisation of the APA and HSU that the Secretary’s case has low prospects of success. Counsel for the Secretary accepted that the recommendation was not binding or enforceable and relied on the argument that the decision having a “life on its own” (which I address later). Given the direction that the Full Bench proceeded with issuing a summons to show cause, it raised serious questions whether there would be any utility for relief to be granted.

Nevertheless, I am satisfied that the Secretary does have a fairly arguable case that the Commissioner had not correctly interpreted and applied s 116A of the HS Act. I also agree with counsel for the Secretary that determination of ground 5, which is not out-of-time, inherently requires review of grounds 2-3 because the Secretary needs to challenge the operative decision. There may be a collateral attack in the sense that it would be necessary to challenge the validity of a separate decision (that is, the Primary Decision) in order to resolve the challenge to the Appeal Decision. For the nature of collateral attack generally, see Health Secretary v NSWNMA at [155]-[195].

Although it was raised briefly in passing, the APA and HSU did not explain or articulate how they or others have been prejudiced by the passage of time. It is difficult to see how they have been prejudiced by the delay given that they were both on notice that the Secretary was challenging the Primary Decision when she brought the Appeal Proceedings.

Overall, on balance, the Secretary’s application should be acceded to and that the time for commencing judicial review proceedings should be extended to the date of the filing of the Amended Summons.

It is commonly appropriate to resolve claims of a denial of procedural fairness first: Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at 542 [100] (Leeming JA with whom Beazley P, as Her Excellency then was, and Sackville AJA agreed).

The Secretary submitted that Commissioner Sloan denied her procedural fairness “by finding that a contractual term implied by custom or usage was ‘fixed by or under any other law’ within the meaning of section 116A of the Health Services Act when that contention was not made by the Applicant [the APA] or Intervenor [the HSU] and the Commissioner did not give the Secretary any opportunity to respond to it”.

The relevant part of Commissioner Sloan’s decision that the Secretary submits that she was denied procedural fairness is [94], which is as follows:

Counsel for the Secretary submitted that “the problem is that argument was not made by the APA nor by the HSU, nor was it raised by the Commissioner at any stage with any of the parties prior to delivering judgment”. It was submitted that the issue of whether an implication by usage amounts to “any other law” was a material and dispositive one that was not raised to the Secretary in the Primary Proceedings.

The APA drew attention to the fact that it was the Secretary before Commissioner Sloan that had raised the issue with respect to s 116A of the HS Act as a “shield”. The Secretary, however, sought to limit its submission regarding s 116A to whether there had been a delegation but it had the opportunity to raise all the issues about s 116A completely.

The HSU submitted that the Secretary raised the issue of s 116A of the HS Act in oral closing submissions and the parties were permitted to put further submissions on the point. The Secretary was therefore on notice by Commissioner Sloan that he intended to consider the operation of all of the words in s 116A in his decision.

Counsel for the HSU submitted:

It is well-recognised that a party must know the matters which will be considered by the decision-maker: see, eg, Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494 at 504 (Wilcox J). This duty to warn or put a party on notice exists because “a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against [them]”: Home Secretary v AF [No 3] [2010] 2 AC 269 at 355 [63]. Resolution of this ground requires consideration of the written submissions and transcript.

Before the hearing, both the APA and HSU had clearly put the Secretary on notice that one of their arguments was that the on call allowance was implied by custom and usage as a term of an ACCO’s contract. This was made clear in three documents filed before the hearing:

On 31 January 2020, which was the second day of the hearing, counsel for the Secretary, Mr Darien Nagle, in closing submissions raised an issue concerning s 116A of the HS Act. The transcript records that he stated:

The use of the phrases “very simple answer” and a “very simple statutory point” by Mr Nagle, when understood with the background written submissions about implying terms by usage and the evidence that had been adduced in the hearing, clearly show that the Secretary was seeking to use s 116A as a shield or complete defence for the argument that there were implied contractual terms arising from usage.

The Commissioner then invited the parties to file written submissions. The request was one that related to the section entirely and not specifically on the issue of delegation as had been put by Mr Nagle. The transcript records:

I note that the Commissioner also listed a half day hearing any further oral argument on 11 March 2020 in case it was needed after the written submissions. It appears that neither of the parties took up the opportunity for that additional hearing.

The written submissions of the parties clearly canvassed the issues concerning the interpretation and construction of s 116A of the HS Act. The APA’s written final submissions went to the argument raised by s 116A. Relevantly it stated:

The APA’s written reply submissions dated 22 February 2020 also submitted that “Usage does not require anyone’s authorization [sic]” and “the issue is whether the custom is so notorious that it is reasonable to assume that the parties contracted on the basis of the custom, and that it is therefore reasonable to import such a term into the contract”.

Two major considerations became clear from reviewing the transcript and submissions both before and after the hearing. First, the Commission had sought written submissions about the operation and effect of s 116A of the HS Act. This was a broad invitation to the parties to address issues that fell within that section without limitation. The Commissioner was clearly contemplating, and put the parties on notice, that he was considering how that section – not just the issue of delegation even though that was what the Secretary chose to focus on – would affect the contractual issue, which Mr Nagle suggested was a “very simple answer” and would make the contractual arguments advanced by the unions go away. In this context, it ought to put the Secretary on notice to address the entirety of that provision.

Secondly, it ought to have become clear to the Secretary from the submissions of the APA that the APA was advancing an argument that s 116A of the HS Act did not prevent incorporation of a term on the basis of usage and that authorisation from the Secretary or her delegate did not matter. Although one might say that the APA’s submission was not enunciated clearly, it ought to have drawn the Secretary’s attention to the broader issues in s 116A of the Act and not solely the issue of delegation.

These issues should be unsurprising to the Secretary because it was she who drew the Commission’s attention to the presence of s 116A of the HS Act as the “very simple answer” to the arguments raised by the unions. When the Secretary used s 116A(1) as a shield, she cannot be surprised that the Commissioner might consider the full sentence of that sub-section. Or, for that matter, to read and consider the whole of the section. Or the provisions surrounding that section or maybe even the objects and dictionary to the Act. The Secretary can not reasonably be said to be taken by surprise just because the Commissioner looked beyond the part of the sentence about delegation to another part of the same sentence to see if this defence or “answer” was made out. The choice by the Secretary to only grapple with one aspect of the sentence in s 116A(1) does not limit the considerations that the Commissioner may have regard to in determining his jurisdiction.

Given that Mr Nagle sought to rely on s 116A, it would not have come as a surprise to the learned counsel that he would need to explain why this “very simple statutory point” in s 116A of the HS Act meant the on call allowance “cannot be a condition and term of the contract” of ACCOs. This would clearly involve addressing all the words of that provision, not just the ones where the facts favoured his case.

A Commissioner is required to put on notice to the parties of the issues in the case. In an adversarial proceeding, the extent to which fairness can and should dictate the content of notice is somewhat offset by the fact that the parties get to define, and are thus well aware of, the issues. Depending on the circumstances, a broad reference to particular legislative provisions or rules can be sufficient. It is relevant that the Secretary had raised the issue of s 116A of the HS Act, the Commissioner had given the parties some time to make written submissions on the application of that section (and not just the issue of delegation) and the Secretary was represented by experienced counsel.

It does appear to me that counsel for the Secretary is correct that the APA did not expressly “rel[y] on the words “in so far as they are not fixed by or under any other law” appearing in s 116A” as suggested by the Commissioner in [94] of the Primary Decision. The APA did contend, however, “that s 116A did not preclude the implication of terms by usage”. Having regard to all the circumstances, I am of the view that the Secretary was given a sufficient opportunity to be heard on the interpretation, operation and effect of s 116A of the HS Act and there is nothing procedurally unfair about what occurred.

As I am not satisfied that the Secretary was denied procedural fairness, it is unnecessary to consider whether the Full Bench’s decision had cured any procedural fairness defect in the Primary Decision in the sense explained in R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 147 CLR 471; [1981] HCA 33 (“Marks”). This stands for the principle that, even if a party was denied procedural fairness by the original decision-maker, the Court may nonetheless exercise its discretion to refuse relief because the party exercised a right of review, which gave them the opportunity to put any argument as to why the earlier determination was wrong: see Kyriakou v Long [2014] NSWCA 308 at [19] (Basten and Meagher JJA).

I reject the submission of counsel for the Secretary that Marks can be distinguished on the basis that the Secretary “had a right only to seek leave to appeal” whilst the Federation in Marks was said to have a full right of appeal. The judgments in Marks were referring to the appeal process set out in s 35 of the Conciliation and Arbitration Act 1904 (Cth) (“CA Act”). Section 35(3) of that Act (as at the time of Marks) provided that an appeal does not lie to the Full Bench of the Australian Conciliation and Arbitration Commission “unless, in the opinion of the Commission, the matter is of such importance that, in the public interest, an appeal should lie”. Thus, like s 188(2) of the IR Act, the CA Act too provided for leave to appeal on public interest grounds. There is therefore no basis to distinguish Marks on the parties’ rights to appeal.

Were it necessary to decide, I am of the view that, although the Full Bench refused leave to appeal (and the Full Bench in Marks appears to have granted leave but dismissed the appeal), the Full Bench had given consideration at [39]-[62] to the Secretary’s arguments such that any defect of procedural fairness in the Primary Decision (which I have rejected above) was cured. The Secretary did not contend that she was denied procedural fairness by the Full Bench.

It does not matter that the operative decision is the Primary Decision because procedural fairness was afforded in the Appeal Proceedings on this point and the Full Bench had the ability to correct or alter the Primary Decision but exercised its discretion not to after hearing full argument on the point. As I noted above, the Secretary had the opportunity to raise the procedural fairness argument in the Full Bench but did not.

Even if there was a denial of procedural fairness by the Commissioner and it was not cured by the Appeal Decision (both of which I do not accept), I nonetheless do not believe that a denial of procedural fairness for the issue raised in [94] of the Primary Decision could materially affect the outcome reached by the Commissioner. As I explained above, a recommendation can be made to do something even if there is no legal requirement to do it. Thus, I do not accept the characterisation by counsel for the Secretary that this was a “dispositive” point. Even if the Commissioner found that there was no entitlement under the award or contract to be paid the allowance, he could still have made the recommendation on the same terms on the basis that he believed it was fair and just and conducive to the resolution of the industrial dispute in all the circumstances. That recommendation could have been readily accepted or rejected by the Secretary.

Therefore, ground 1 must be rejected.

In ground 2, the Secretary submitted that Commissioner Sloan made an error of law in misconstruing the words “conditions of employment…fixed by or under any other law” in s 116A of the HS Act to include an on call allowance that was fixed from usage. The Secretary submitted that:

I will address the Secretary’s submissions on ground 3 below.

The APA submitted that the text of s 116A provide for the determination of terms and conditions prospectively and no intention can be discerned that it would operate retrospectively or displace existing terms and conditions which may have existed at the relevant time irrespective of how those terms and conditions may have come into existence.

The APA noted that Parliament intended that the 2006 Amendment Act would not alter existing terms and conditions in relation to employees who are to be transferred to the newly created NSW health Service. Therefore, s 116A of the Act, insofar that it allowed the Secretary to determine wages and conditions could only operate in the future and not as to terms and conditions set in the past.

The HSU submitted that the Commissioner was acting within his jurisdiction when he took into consideration whether the practice of paying the allowance was so notorious that it met the threshold of an implied term of their contracts of employment. The step of the Commission in determining that the implied term did not occur in contravention of s 116A of the HS Act was within his jurisdiction because he was empowered to do so for the purpose of resolving the dispute by s 175 of the IR Act.

For the reasons that I will give later, it is not necessary to give a concluded view as to whether the errors of law in ground 2 (and 3) are established. Nevertheless, I have serious doubts as to the correctness of the submissions advanced by the Secretary about the interpretation, operation and application of ss 116 and 116A of the HS Act.

It is significant that the employer of the ACCOs is the Crown in right of the State of New South Wales. It is well-recognised that employing people and entering into contracts are capacities that may be exercised by a polity as a legal person. It is not necessary to determine whether these capacities fall within the prerogative as broadly definition by AV Dicey (Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) at pages 424-5) or the narrow definition by Sir William Blackstone (Commentaries on the Laws of England (1st ed facsimile, 1765) at vol 1, page 232). It is sufficient to recognise that, unlike prerogative acts which have the force of law, the capacities cannot interfere with the legal rights of others. At most, the effect of capacities on legal relations are limited to those that arise as a consequence of the application of the general law to all.

Section 116(3) of the HS Act allows the Secretary or her delegate to exercise the “employer functions” of the Crown in relation to staff of the NSW Health Service. This term is not defined in the Act but, in my view, it includes employing staff “to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services”: s 116(1)(c). It is inherent and clearly implied in the “employer functions” in s 116(3) of the HS Act that the Secretary has the power to enter into contracts of employment with employees.

In New South Wales Nurses' Association v Sydney Local Health District (2013) 232 IR 217; [2013] NSWIRComm 28 (“NSWNA v SLHD”), the Full Bench (Walton J, Vice-President, Staff and Backman JJ) at 229 [44] cited approvingly the passage in New South Wales v Bardolph (1934) 52 CLR 455, where Dixon J said:

The Full Bench in NSWNA v SLHD held at 230 [48] that the “appropriate servant of the Crown” in that passage could refer to the Director-General who, under s 116(3) of the HS Act at that time, was the person who could exercise the employer functions of the Crown.

It is clear, therefore, that contracts of employment between the Secretary (on behalf of the Crown) and individual employees can bind the Crown. The content of those contracts are governed by the law of contract and can include terms implied on the basis of usage or custom where the relevant legal tests are met: see Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 at 236-238 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ, as Mason CJ and Brennan CJ then were) (“Con-Stan”); Re Australian Fertilizers Ltd and the Australian Worker's Union, New South Wales Branch [1983] AR (NSW) 237 at 243-244 (Watson J).

The power in s 116A(1) of the HS Act is a distinct and separate power to the power to enter into contracts of employment. This is clear from the ordinary and natural meaning of the text and its purpose. This view is also confirmed by the legislative history and past authorities of the Commission.

As set out above, s 116A(1) of the HS Act gives the Secretary the power to “fix” salary, wages and conditions of employment. This is a power that the Secretary can exercise unilaterally, which is very different to a power to contract which requires mutual assent by two parties manifested in the making of an offer by one party and its acceptance by the other. The Secretary may also be able to change the salary, wages and conditions of employment unilaterally at any time, which is also very different to a contract of employment which requires the mutual assent of the parties unless it provides otherwise.

Authorities that have considered s 116A(1) of the HS Act and its predecessors have referred to policy directives, departmental circulars and documents of general application although I do not consider that they are necessarily limited to such documents: see discussion in Crown in Right of the State of New South Wales (Director-General NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association (2011) 209 IR 49; [2011] NSWIRComm 111. For example, in South Eastern Sydney and Illawarra Area Health Service v Health Services Union (on behalf of Peisley) (2007) 165 IR 43; [2007] NSWIRComm 157, the Full Bench (Walton J, Acting President, Marks J and Commissioner Ritchie) noted at 46 [7] that “an ancillary fire safety allowance was provided for and defined in a Department of Health circular 94/114 published 11 November 1994 … constituted a determination made under s 40BA of the then Public Hospitals Act 1929 (NSW) and s 26 of the Area Health Services Act 1986 (NSW)”. I note that both those provisions are predecessors of s 116A in respect of the NSW Health Service but nothing turns on the fact that the Ambulance Service was then a statutory corporation separate from other aspects of the Health Service.

The purpose of the power in s 116A(1) is “to ensure a high measure of consistency in a large and diverse public sector organisation”: NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 at [102] (Boland J, President). It is clear that a determination by the Secretary under this power is intended to set conditions that could cover the entire workforce or a very large cross-section of it. This only highlights how separate and distinct it is from the power to enter into contracts of employment. Under the doctrine of privity of contract, any contract can only bind the contracting parties (that is, the Crown and the relevant individual employee) and could not affect the legal rights of other employees.

This view is also clear from the legislative history of the provisions in ss 116 and 116A of the HS Act. As I have set out above, in relation to the provision of ambulance services, the power of the Ambulance Service under the AS Act to employ individuals and enter into contracts and agreements was separate to the power of the HAC to determine the conditions of employment.

This is also consistent with the scheme that existed in relation to the Area Health Services (which are now known as Local Health Districts) under the HS Act before the 2006 Amendment Act. The Area Health Services had the power to appoint and employ employees (s 33) and was empowered to enter into contracts or agreements with any person for the performance of services (s 37). This was always separate to the power in s 115(2) of the HS Act (which is the predecessor provision to s 116A(1)).

Nothing in the text of the 2006 Amendment Act sought to merge the powers or make the separate powers into one. Indeed, in the second reading speech of the 2006 Amendment Act, the Minister said:

This view is confirmed by a number of authorities in the Commission. Two will suffice. First, the Full Bench in NSWNA v SLHD agreed with the submission of the appellant Association that the power to enter into contracts was an alternative source to the power in s 116A(1) of the HS Act for terms and conditions of employment but ultimately found that the three individuals who had made representations did not have actual, delegated, ostensible or apparent authority to make those representations.

Secondly, in Gillies (which I note was decided before the 2006 Amendment Act came into effect), the applicants submitted that the private use of their employer-provided motor vehicles constituted a term of their contracts of employment. Schmidt J held at [173]-[174], in relation to s 115(2) of the HS Act, the following:

It is clear that her Honour regarded the conditions of employment set out in the contracts of employment as separate to the conditions of employment set out in determinations made by the Health Administration Corporation (“HAC”) (who, before the commencement of the 2006 Amendment Act, was the employer of the employees in the NSW Health Service).

Before the 2006 Amendment Act, the Area Health Service was under an obligation when entering into contracts of employment with staff to have regard to conditions of employment determined by the HAC. No such provision exists today but this can be explained by the fact that the function of the Area Health Service in entering into contracts of employment and the HAC in determining conditions under s 115(2) are now done by the same person – the Secretary. Thus, it can be assumed that the Secretary would not enter into contracts of employment that conflict with the conditions of employment that she herself has fixed in s 116A(1).

It follows that the underlying premise of the Secretary’s submission – that the act of entering into a contract amounted to “fix[ing]” the conditions of employment under s 116A of the HS Act – may be significantly doubted. The submissions of the Secretary largely follow from this assumption.

As the power to make contracts of employment and power to fix conditions that are not otherwise provided by law are separate powers, it does not follow that s 116A of the HS Act is a shield, defence or “very simple answer” to the issue of whether a contract of employment can have a term implied by usage.

The term “law” in s 116A(1) is not defined in the Act. It must be construed in the context of the statute. There are a few notable considerations. First, the preceding word “other” operates in a way that suggests that the determination of the Secretary fixing the salary, wages and conditions of employment would also be a “law”. This is an interesting description because it is not ordinarily understood in common parlance that a determination of conditions of employment by a departmental secretary, let alone a policy directive or circular, is a “law”. Secondly, in relation to a predecessor provision, Schmidt J in Gillies at [174] held, with respect, correctly in my view, that the term “law” includes “an order or award made by the Commission under the [IR Act], or of an order made by the Court”. An award or order made by the Commission or a court does not apply to everyone. An award only binds the employees or employers within the scope of the award and any industrial organisations that were a party to the making of the award. An order of a court can only be binding on the parties in the particular proceedings. Thus, the “law” referred to in s 116A(1) does not have the same quality of universal application that a law made by Parliament ordinarily would have.

Having regard to those considerations, my preliminary observation is that the word “law” in s 116A(1) refers to any source that can bind the Secretary and relevant employees. This would include the provisions of the HS Act, IR Act and other statutes, as well as awards and agreements made by the Commission. It can also include, in my view, a contract entered into by the Secretary and which is binding on the Crown.

The words used in s 116A should be carefully considered. I note that conditions of employment can be “fixed” by a contract at the magic moment where mutual assent has been objectively manifested: see Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61. However, it is not correct to say that the Secretary alone can “fix” the conditions of employment by merely making an offer to a prospective employee. An offer can be accepted or rejected. It is for this reason why I am inclined to prefer the view, without deciding the issue, that the power to “fix” conditions of employment in s 116A(1) of the Act does not apply to the making of contracts. It can simply be answered by the fact that the fixing of conditions of employment by contract can not be done by the Secretary alone which is what s 116A(1) of the Act contemplates. In a contract, the conditions of employment can only be “fixed” by the Secretary and employee acting together. Once fixed, they bind the Secretary and the relevant employee.

At [102] of the Primary Decision, the Commissioner said “I see no reason why the words “in so far as they are not fixed by or under any other law” appearing in s 116A of the HS Act could not extend to terms and conditions “fixed” by reference to the common law principle of usage”. If the Commissioner meant that “any other law” refers to a contract that has “fixed” a condition of employment by usage, then there is no apparent error in the Commissioner’s reasoning. But if the Commissioner meant that the common law principles of usage is a standalone source of “other law”, then there is much to suggest that the Commissioner erred. In my view, the common law principles of usage alone are not sufficient to be a source of “law” that fixes conditions of employment. Those principles may imply a term in a contract but that is different to fixing a term binding on the parties outside of a contract.

Once it is accepted that an ACCO’s contract of employment includes an implied term that pays an on call allowance (and I express no opinion on whether this is established), it would appear to follow that this term is binding on the Crown and the Secretary would need to remunerate the allowance to the ACCOs.

The proper principles of determining usage were not adequately argued before me. Further, there appears to be some tension between the Secretary’s acceptance that there was a usage, as a matter of fact, with respect to the on call allowance for the purposes of construing s 116A and its submissions with respect to this alleged error. I have some doubts as to the Secretary’s submissions.

The Secretary submitted that the Commissioner failed to consider whether the practice of paying the allowance was a practice of or attributable to the Secretary or her predecessors as the relevant contracting party. I do not accept that submission. The Commissioner clearly considered whether there was a delegation and accepted that “the issue of delegation is irrelevant to the enquiry into the presence and nature of a usage”: Primary Decision at [99].

The Secretary submitted that the Commissioner was wrong to find that a custom or usage could be located without making a finding that those practices were authorised by the Secretary or her predecessor as the employer to the relevant contracts. However, that submission appears to be contrary to authority. It has been held that a person may be bound by a custom notwithstanding the fact that she had no knowledge of it. Where a custom is of such notoriety that every person dealing in that sphere could easily ascertain the nature and content of the custom, a person would be presumed to know of the usage notwithstanding their ignorance of it: Jones v Canavan [1972] 2 NSWLR 236 at 243 (Jacobs JA). Whether sufficient notoriety has been achieved is a question of fact. In Con-Stan, the High Court stated at 237-238:

The Secretary also submitted that the Commissioner failed to recognise that a contractual term cannot be implied by usage if it would be inconsistent with the express terms of the contract. However, in that respect, it must be noted that the Commissioner, in citing relevant authorities on usage, recognised at [70] that “[a] term will not be implied into a contract on the basis of custom where it is contrary to the express terms of the agreement”

From my review of the transcript and written submissions that was before the Commissioner, the highest that this argument was advanced was that the ACCOs’ employment contracts contained an express term that “[t]he conditions of employment for this position are embodied in the [Award]”. However, it is difficult to see why this term means that all conditions were set out in the Award and nowhere else. If that was so, then no condition of employment fixed by the Secretary under s 116A(1) of the HS Act could form part of the conditions of employment.

Further, the Secretary submitted that the Commissioner made an error in finding that the allowance was not inconsistent with the Award. I accept that, as a matter of principle, it was necessary for the Commissioner to consider whether any implied term conflicted with the Award. However, the arguments before me do not sufficiently explain how cl 23(f)(i) of the Award contained a “closed list of circumstances” and “evinced an intention to ‘cover the field’ exhaustively”. It is reasonably clear that the Commissioner turned his mind to whether there is any inconsistency. In those circumstances, it was open for the Commissioner to conclude that there was no inconsistency, as he found in [81]-[83] of the Primary Decision.

It was unnecessary to reach a concluded view as to grounds 2 and 3 because, even if an error of law was found, the Secretary has not established jurisdictional error in those respects as I will demonstrate below. I note that the effect of s 179 of the IR Act is that this Court does not have the power to grant prerogative or declaratory relief against decisions of the Commission that were affected by non-jurisdictional errors of law on the face of the record: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at 582-583 [104]-[105] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, as Kiefel CJ then was) (“Kirk”).

Counsel for the Secretary submitted that the Commissioner’s finding that the Secretary was obliged to continue paying the on call allowance was irrational and that the recommendation made by the Commissioner was legally unreasonable.

The Secretary submitted that the Commission exceeded its jurisdiction in interpreting the law under s 175 of the IR Act. Counsel for the Secretary submitted that administrative tribunals are not generally authorised to determine questions of law authoritatively or to make decisions other than in accordance with the law. Therefore, if the Commission has made an error of law by identifying a wrong issue, asking itself a wrong question, ignored relevant material, relied on irrelevant material or made an erroneous finding, it will generally be jurisdictional.

In relation to whether the Primary Decision has any legal effect or consequences, counsel for the Secretary made two submissions. First, he accepted that a recommendation is not binding in a “strict legal sense” but submitted that there is a moral or cultural obligation on a party with ongoing proceedings before the Commission to comply with it.

Secondly, counsel submitted that the Primary Decision has “some life outside of the decision irrespective of whether [the Secretary] were actually bound to comply with the recommendation as a matter of law” because:

Both the APA and HSU submitted that any errors in the Primary or Appeal Decisions were errors within jurisdiction. This is of significance because the effect of s 179 of the IR Act precludes a decision of the Commission from being called into question by any court or tribunal unless it is vitiated by jurisdictional error.

The unions also submitted that there were discretionary factors against the granting of prerogative or declaratory relief because there are proceedings in the Commission to determine whether the Award should be varied and may resolve the dispute one way or another. Further, the issue of a recommendation has no legal consequence.

It must first be recognised what power the Commission is exercising in the Primary Proceedings. I do not agree with counsel for the Secretary’s submission that the issue of jurisdiction should be determined by reference to only s 175 of the Act. What the Commission was deciding was whether to make a recommendation under s 136(1)(a) of the Act. That was the relief that was sought by the APA. That was also the case that the parties were answering in the arbitration proceedings. And that was the course taken by the Commissioner.

The recommendation made in the Primary Decision was that the Secretary should continue to pay a weekly allowance equal to the on call allowance set out in the Award, provided that the ACCO is on Whispir and is required to take telephone calls. This recommendation was clearly directed to the resolution of the industrial dispute that was notified by the APA. The recommendation was clearly about an industrial matter, which s 6(1) of the IR Act defines as matters affecting the rights and duties of employers and employees in any industry. The examples given in s 6(2) of the IR Act include remuneration and conditions of work. In my view, even if an error of law was established in the reasons of the Commissioner, the recommendation of the Commission was well within the ambit of its power in s 136(1)(a) of the Act.

It is well-established that not every error of law is a jurisdictional error: Kirk at 571 [66]; Quinn v Commonwealth Director of Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at 158-163 [4]-[24] (Leeming JA); Stanley v Director of Public Prosecutions (NSW) (2022) 107 NSWLR 1; [2021] NSWCA 337 at 10 [35]-[36] (Bell P, as the Chief Justice then was); Franklin v Director of Public Prosecutions (NSW) [2022] NSWCA 58 at [45] (Macfarlan JA).

In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (“Craig”), the High Court held that an error of law by a court on the sorts of issues they have to routinely decide will not be jurisdictional, but an error of law committed by tribunals would generally be jurisdictional. This distinction was based on the view that a tribunal, unlike a court, does not have authority conferred on it to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law.

However, it has been emphasised that this is not a rigid taxonomy. In Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311, Fitzgerald JA held at [146] that the Equal Opportunity Tribunal was to be treated as a court for the purpose of Craig’s distinction. In Custom Credit Corp Ltd (in liq) v Commercial Tribunal of New South Wales [1999] NSWSC 1021, James J held at [102] that, where a statute provides for an appeal from a tribunal on a question of law, then it would appear that Parliament has conferred upon the tribunal the authority to decide questions of law.

There has been some debate as to whether Craig’s distinction or presumption still holds. It is not necessary to resolve that debate here. Any presumption that a tribunal does not have power to authoritatively determine questions of law must yield to the language of the Parliament and the terms of the legislation under which the tribunal is set up. In my view, Parliament had clearly provided in s 175 of the IR Act that the Commission may interpret and determine the operation and effect of relevant laws and instruments (although this is no declaratory power, which is reserved to this Court). And that the Commission’s decisions were “final” (s 179 of the IR Act) subject to jurisdictional error and thus cannot be reviewed for non-jurisdictional errors of law. As I explained above, the IR Act also provides for a system of appeal to the Full Bench on questions of law. All these factors point to the view that Parliament had conferred on the Commission the authority to decide questions of law such that “incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 141 [163] (Hayne J).

This was accepted in State of New South Wales v NSW Nurses' Association [2012] NSWCA 179 at [35]-[37] where Bathurst CJ (with whom Basten and Hoeben JJA agreed) held that the construction of the contract adopted by the majority of the Full Bench (Boland J, President, and Haylen J; Walton J, Vice-President, dissenting) was erroneous but nonetheless the Full Bench was acting within jurisdiction in determining the contractual rights and liabilities of the parties in relation to the contract entered into by them. This is because there was “no misconception by the Full [Bench] of its role or disregard of the limits of its functions or powers occurred” and the Full Bench “did not … seek to rewrite the contract”.

Even if it was established that the Commissioner adopted or preferred an erroneous interpretation of s 116A of the HS Act, this would be an error within jurisdiction. As “the record” includes reasons given by the Commission (Supreme Court Act 1970 (NSW) s 69(4)), it may be said that there was an error of law on the face of the record but not jurisdictional error.

The submission that the Primary Decision is legally unreasonable or irrational must be rejected. It must be remembered that simply disagreeing with the rationale of the Commission is not enough to make it irrational or unreasonable. The question is whether it is so irrational or illogical that no rational person could have made it or the conclusion was simply not open to the decision-maker on the facts: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at 647-648 [130] (Crennan and Bell JJ). In my view, it was open to the Commission to find that the allowance should continue to be paid as a matter of fairness given the length of time that the payment has already been paid and because of the fact that the ACCOs may need to take telephone calls to ascertain their availability to fill shift vacancies at short notice.

It follows that grounds 2 and 3 are incapable of establishing jurisdictional error and must be rejected. Ground 4 must also be rejected. As was accepted by counsel for the Secretary, the rejection of grounds 1-4 also necessitate that ground 5 must be rejected.

The authorities establish that an order in the nature of certiorari does not lie against an act that has no legal consequences.

In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, a report was prepared by the Criminal Justice Commission and tabled in Parliament. It contained adverse recommendations about certain persons and companies involved in the poker machine industry, including those associated with the appellants. Although the High Court found that there was a breach of natural justice, the Court held that certiorari did not lie because no legal effect or consequence attached to the report, notwithstanding that it might bear on the appellants' prospects of obtaining licences under the Gaming Machine Act 1991 (Qld), to which reputation was a relevant factor.

In Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, Gleeson CJ at 148 and Mahoney JA at 178-179 refused certiorari to quash a report of the Independent Commission Against Corruption which had no legal force of its own.

In contrast, in Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149; [1996] HCA 44, the High Court held that certiorari was available to quash a report whose only legal force was that it had to be taken into account by the Minister before coming to his own decision. Brennan CJ, Gaudron and Gummow JJ said at 165:

In Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207, Johnson J ordered certiorari of a report and recommendations made by a Review Committee on the footing that that the Chief Executive of the Health Service was obliged to take them into account as a matter of law.

As I have noted, a recommendation is not legally binding and does not affect a party’s rights in any way and does not effect any prejudice in any way. That the Commission’s recommendation may carry some moral or cultural authority does not create a prejudice. The party may object to the Commissioner making the recommendation from further sitting. Parties do regularly appear in repeat proceedings before the Commission but it could not be seriously suggested that the refusal of a recommendation would adversely affect a party’s standing before the Commission either in the instant matter or in the future (and no party has suggested otherwise in these proceedings). Recommendations of the Commission have been rejected by many parties over a long period of time. The Crown is in no different position. A failure to comply with a recommendation in conciliation may result in that rejection being considered in the future under s 134(2) of the IR Act but no such consequence exists for a recommendation in arbitration.

I reject the Secretary’s submission that a finding by the Commissioner on a question of law in the reasoning process to a recommendation is sufficient to give rise to certiorari because “we are caught by that finding”.

Expressing a view on the interpretation of the law is an act that tribunals and administrative bodies are called upon to do in the ordinary exercise of their functions. Sometimes an interpretation of the law will result in the making of an order or determination that affects legal rights. Other times, as in the case of a recommendation in arbitration, it does not. The fact that the reasoning process in reaching the latter may involve the interpretation of a statute does not have a sufficient legal consequence to give rise to an order in the nature of certiorari.

The former Industrial Court previously had a power to make a declaration such that it could declare the law: IR Act s 154 (which was repealed by the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW)). No such power currently exists on the Commission. As mentioned, an interpretation of the law by the Commission does not have the effect of a declaration.

To the extent that the Secretary is suggesting that the Commission in a future proceeding is bound by the interpretation set out in the Primary Decision, this is mistaken. An interpretation of the law by a single Commissioner in arbitration does not have the force and effect of a binding precedent on the Commission in the future. There is no principle of ratio decidendi that operates and, even if it did, the principle could not operate with respect to a recommendation. The statements made by the Commissioner do not amount more than him exposing his thought processes in recommending a particular course.

It would be more arguable that an interpretation of the law by the Full Bench would bind the Commission constituted by a single member in the future but, in this case, the Full Bench did not embark on the merits so as to have any binding effect. At most, the Primary Decision may be followed the Commission in the future because it is influential or under principles of comity but the Commission is free to depart from an earlier interpretation.

Section 179 of the IR Act does not change this. Section 179 has the effect of preventing a court or tribunal from questioning a decision of the Commission. It does not have broader consequences to elevate the legal status of an interpretation of law expressed by the Commission when making a recommendation.

The Affidavit of Elizabeth Allen states that NSW Health has recently reviewed the contractual arrangements of doctors across NSW Health and identified approximately 400 arrangements that may fall outside the terms of the applicable award and other applicable industrial instruments and that may not have been approved by NSW Health. The details of this review was not provided to the Court. It is not clear that those approximately 400 arrangements would be identical or substantially similar to the allowances of ACCOs. And it is difficult to understand (and no example or demonstration was provided as to) how the Commissioner’s interpretation of s 116A of the HS Act had an impact on those arrangements.

As I have mentioned, the only possible consequence of a recommendation is to suggest a course with the moral authority of the Commission and a culture of compliance. I have earlier dealt with that proposition. In Notification by the Broken Hill Town Employees' Union of a dispute with the Broken Hill Musicians Club Ltd re negotiations for a new collective agreement [2001] NSWIRComm 213, Deputy President Sams observed at [3] that “[i]t has been the tradition precedent for the industrial parties to accept and abide by any recommendation so given”. In that case, the employees of the Broken Hill Musicians Club did not accept a recommendation made by Commissioner Bishop. The Commission expressed its disappointment that the recommendation was not accepted. Deputy President Sams stated at [10]:

However, two factors need to be mentioned. First, the Deputy President was referring to the general industrial arrangements operating in Broken Hill or, more generally, the County of Yancowinna in which unique and special industrial arrangements have historically applied: see, eg, Broken Hill Commerce and Industry Consent Award [2009] NSWIRComm 1095 at [27] (Commissioner McKenna); Public Service Association of NSW and Health and Anor v Broken Hill Town Employees’ Union (2003) 125 IR 54; [2003] NSWIRComm 100 at 62 [26]-[29] (Wright J, President, Deputy President Harrison, Commissioners Connor and Tabbaa); Award Modernisation – Statement – Full Bench (2009) 188 IR 23; [2009] AIRCFB 865 at 39-40 [85]-[86] (Giudice J, President, Watson VP, Watson, Harrison and Acton SDPP, and Smith C); SC Taylor, “Industrial Relations in the Broken Hill Mining Industry” (1965) 7(2) Journal of Industrial Relations 101. Secondly, the Deputy President proceeded to deal with the industrial dispute on the basis that the failure to comply with a recommendation has no legal consequences.

In the absence of a recommendation in arbitration having any legal consequence, certiorari does not lie.

As I have noted above, a recommendation is a very broad power and it was deliberately designed to give the maximum latitude to the Commission to use its expertise, experience and knowledge to assist in resolving the industrial dispute. The terms of a recommendation may be such that the Commission would not be disposed to make an award, direction or order in those same terms. And a recommendation can be made to do something even if there is no legal requirement or entitlement to do it. Therefore, there is no requirement on the Commissioner to give reasons that sets out the legal basis for an entitlement for the allowance.

The full thought processes of the Commissioner have generally not been exposed when making a recommendation. I have noticed that there has now been a trend for the Commission to express its reasons for making or not making a recommendation in a formulaic way that creates an impression that it was a considered decision. It is usually undesirable for a Commissioner to create such an impression.

When an exposition of the basis for the giving of a recommendation is given, it is no more than a series of propositions which may support the recommendation that has been made which may encourage the parties to give serious consideration to the recommendation. But it should not be considered as a proper interlocutory or final decision that has legal effect. It should not be taken that the Commission would make or vary an award or make orders in the precise terms of the recommendation.

It is a requirement for the making of a declaration that it will have foreseeable or practical consequences for the parties: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at 391 [233] (Kiefel and Keane JJ, as Kiefel CJ then was). The nature of a recommendation is such that a party can reject it on the basis that they believe the Commission made the recommendation on a false premise or because they held a settled view which would not be altered in any circumstances. This may not be entirely desirable, but the point is that a party may reject a recommendation entirely in a perfunctory way with no obligation to demonstrate that consideration had been given to it. Because the Secretary has the ability to choose whether to accept or reject the recommendation with no legal consequences, I am of the view for the reasons that I have given that there are no foreseeable or practical consequences to the making of a declaration in these proceedings.

It must be remembered that prerogative and declaratory relief is discretionary. Even if error was established and certiorari and/or declaratory relief could be given, I am of the view that discretionary factors weight against granting such relief in this case.

The Commission is now considering the underlying dispute about the ongoing payment of the allowance and has issued a summons to show cause to make or vary an award about this allowance. As those proceedings are on foot and could reach a binding decision that the Secretary should continue making the payment or that it should cease (or some other determination), I accept the submission of the unions that there is no utility in quashing the Primary and Appeal Decisions or making the declaratory relief sought.

That conclusion is a fortiori when the grant of relief sought by the Secretary could have no other effect than to act upon an exposition of views in support of the recommendation which has no precedential impact and a recommendation having no binding legal effect.

Further, if this Court were to decide that the recommendation made by Commissioner Sloan was vitiated by jurisdictional error and may be “properly regarded, in law, as no decision at all” (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at 614-615 [51] (Gaudron and Gummow JJ)), it would follow that the recommendation of Commissioner Murphy on 15 November 2019 would continue to operate because the matter had not been validly “heard and determined by the Commission”.

I do not agree with counsel for the Secretary that Commissioner Murphy’s recommendation is extinguished because the matter had been “heard and determined” as a matter of fact. If there was jurisdictional error in the Primary and Appeal Decisions, then it would be considered a purported recommendation in fact but not a valid recommendation at law. The consequence is that the underlying industrial dispute, as the APA notified to the Commission, had not been validly and properly “determined” and thus Commissioner Murphy’s recommendation would continue to have effect. This underscores the lack of utility in granting the relief sought by the Secretary in the Amended Summons.

It is important to emphasise the role of this Court in undertaking judicial review. It is not to substitute the decisions of the Commission because this Court prefers a different result. It is to review for jurisdictional error.

The Secretary has not established that the Commission denied procedural fairness in making a recommendation about the payment of a $5000/year allowance to approximately 13 employees. The arbitration recommendation power is very broad, is part of the exercise of a wide discretion, does not bind the parties and has no legal consequences if not complied with. The Secretary has not established that the Commission has made a jurisdictional error. And in any case strong discretionary factors favour not granting relief.

I have not heard the parties on costs. Ordinarily costs would follow the event: UCPR r 42.1. I will make that order, subject to the parties’ right to make a different application to my Associate within seven calendar days in which case I will set a timetable with a view to determining costs on the papers unless the parties request a hearing.

For these reasons, the Court makes the following orders: