Australian Salaried Medical Officers' Federation (NSW) v Health Secretary in respect of South Western Sydney Local Health District

Solicitors: Maddocks (Respondent) File Number(s): 2021/00069791 Publication restriction: Nil

decision

1. This is an industrial dispute notified to the Industrial Relations Commission of New South Wales (Commission) by the Australian Salaried Medical Officers' Federation (NSW) (ASMOF) pursuant to s 130 of the Industrial Relations Act 1996 (the IR Act).
2. The matter has a long history, and the parties have filed between them extensive evidence and lengthy submissions. It was agreed between the parties that the hearing of the matter, and its determination was not a matter of urgency.
3. In its Statement of Case, ASMOF summarised the background as: "Background 1. Members of the applicant to whom this dispute relates are Staff Specialists (being Specialists, Senior Specialists and Post Graduate Fellows) employed by the South Western Sydney Local Health District to work in the Cancer Service at Liverpool Hospital. Their employment is covered by the Staff Specialists (State) Award 2019. 2. In early 2019, the applicant became aware that the Health District had determined to undertake a major redevelopment of office space, such that Cancer Services would be moved to a building in the Liverpool Hospital Precinct known as the Caroline Chisholm building. The office space to be afforded to Staff Specialists under plans it had formulated for the Caroline Chisholm building was not formally disclosed to the applicant until early November 2020. 3. The dispute concerns plans promulgated by the Health District detailing how office space was to be accorded to Staff Specialists."
4. In substance, the dispute between the parties is whether approximately 60 Staff Specialists should be provided with single occupancy offices because of the nature of their work, or whether it is possible for them, or at least some of them, to perform their work properly whilst sharing office space.
5. The employees to whom the dispute applies are as their title suggests senior medical practitioners. They work in highly specialised medical fields and have many years of experience in those fields.
6. The issues raised by the parties, in the documents and evidence filed and in the submissions made, address a wide range of matters. These include: 1. factual issues going to the extent of consultation between the parties as to office accommodation to be supplied to members of ASMOF by the South Western Sydney Local Health District (LHD); 2. the appropriate office accommodation required by those members to perform their work; 3. the meaning of several clauses of the Award; 4. whether in fact the Commission has properly before it an industrial dispute; 5. whether, even if there is an industrial dispute, the disputed matters are within managerial prerogative; 6. the kinds of orders which the Commission might legally make; and 7. the kinds of orders which the Commission should in the exercise of discretion make.

What is sought by the notifier

1. ASMOF has sought a direction, or failing that a recommendation, setting out an extensive list of matters. This is set out in ASMOF's Closing Submissions: "B. Relief sought by the applicant Directions under s 136(1)(a) … 17. In relation to the applicant's case premised on a failure to properly consult, the applicant seeks the following orders: a. A direction [or, in the alternate, a recommendation] pursuant to s 136(1)(a) that the respondent rescind its final decision to implement the relocation of Staff Specialists who work at Cancer Services at Liverpool Hospital to the Caroline Chisholm Building in circumstances where no major refurbishment or structural changes are to be made to that building and the respondent comply with its consultation obligations under: The Workspace Accommodation Policy by: (i) first conducting a work health and safety risk assessment as to the risks to health and safety of requiring Staff Specialists to work in shared offices in consultation with Staff Specialists and their health and safety managers; (ii) consulting with each individual Staff Specialist as to their particular work and office accommodation needs; (iii) determining, together and in consultation with each individual Staff Specialist, what their particular office accommodation requirements are having regard to the work they perform and the place at which it is performed; Section 47-49 of the WHS Act, as required by clause 30(d) to the Award (i) providing relevant information to Staff Specialists and giving them a reasonable opportunity to express their views and raise work health or safety issues in relation to the matter, being the proposed relocation of their workspaces and the provision to them of alternate shared workspaces, and enable them to contribute to the decision-making process in relation to the matter; Clauses 30(c)-(b) of the Award (i) before determining to implement any decision as to where Staff Specialists are to be located and their office accommodation needs, complying with the requirements set out in clauses 30(c)-(b) of the Award; b. a determination pursuant to s 175 of the Act that: In relation to the Workspace Accommodation Policy (i) the Workspace Accommodation Policy applies to the proposed relocation of Staff Specialists from the Alex Grimson Building to the Caroline Chisholm Building and the provision of alternate shared office accommodation to Staff Specialists in the Caroline Chisholm Building; (ii) the Policy required a Work Health and Safety risk assessment to be undertaken in consultation with Staff Specialists and their health and safety representatives, as well as Work Health and Safety Risk Managers prior to any decision being made about office accommodation to be provided to Staff Specialists; … (iv) the Policy required that the respondent engage in consultation prior to making any decision about changing the office accommodation of Staff Specialists in conformance with the consultation obligations set out under Division 2 of Part 5 of the WHS Act; (v) the Policy required that the office accommodation requirements, including whether a Staff Specialist required access to a single private office to perform the requirements of their positions, be determined by way of an individualised and case by case assessment of each Staff Specialist's circumstances and duties; In relation to ss 47-49 of the WHS Act (i) the requirements of ss 47-49 of the WHS Act applied to the proposed change to office accommodation for Staff Specialists and their relocation to the Caroline Chisholm Building in which they are to be provided shared offices by reason of the Policy and/or clause 30(d) to the Award; (ii) the respondent was required by ss 47-49 of the WHS Act to consult with Staff Specialists in accordance with the obligations set out under s 48 of the WHS Act: a. when identifying hazards and assessing risks to health and safety arising from Staff Specialist's work being carried out in shared office accommodation in the Caroline Chisholm Building; b. when making decisions about ways to eliminate or minimise such risks; c. when proposing to make changes to Staff Specialists' office accommodation. (iii) the respondent was required by clauses 30(c)-(b) of the Award prior to finally determining to implement the relocation of Staff Specialists to the Caroline Chisholm Building in circumstances where no major refurbishment or structural changes were to be made to that building such that they could and would only be able to be afforded shared office spaces to: a. discuss the change with affected employees and the applicant, including the introduction of the change; b. discuss measures to avert or mitigate the adverse affect of the change; c. provide affected employees and the applicant with all relevant information about the change, including its nature and expected significant effects; d. give prompt consideration to matters raised by employees or the applicant. 18. In respect to the applicant's case that the shared office accommodation to be afforded to Staff Specialists in the Caroline Chisholm Building, the applicant seeks the following orders: a. A direction [or, in the alternate, a recommendation] pursuant to s 136(1)(a) of the Act that the respondent not implement its decision to relocate Staff Specialists to the Caroline Chisholm Building and provide them shared office spaces in that building as proposed, as such shared offices spaces are not reasonably necessary for Staff Specialists to perform the requirements of their positions; b. In the alternate to (a), a direction [or, in the alternate, a recommendation] pursuant to s 136(1)(a) of the Act that the respondent not implement its decision to relocate Bartlomiej Geta, Sylvia Ling, Wendy Ng, Shalini Vinod and Ruwanthie Fernando to the Caroline Chisholm Building and provide them shared office spaces in that building as proposed, as such shared offices spaces are not reasonably necessary for them to perform the requirements of their positions; c. A determination under s 175 of the Act that clause 24 of the Award requires that the respondent provide Staff Specialists who perform work at Cancer Services at Liverpool Hospital with access to a private enclosed office; d. In the alternate to (c), a determination under s 175 of the Act that clause 24 of the Award requires that the respondent provide Bartlomiej Geta, Sylvia Ling, Wendy Ng, Shalini Vinod and Ruwanthie Fernando with access to a private enclosed office." [Emphasis in original.]
2. As to the basis for the Commission making the directions or recommendations sought, ASMOF submitted that: "6. The applicant seeks … relief arising from the failure by the respondent to comply with its consultation obligations under the Policy, the Award and the [Work Health and Safety Act 2011 (WHS Act)], to the extent that Act is required to be complied with by virtue of the Policy and Award. 7. The applicant seeks orders under s 136(1)(a) directing the respondent to do particular things. It is submitted that the reasoning of the Full Bench in PSA v Secretary for Industrial Relations [2018] NSWIRComm 1061 does not preclude such coercive and compulsive orders being made. 8. First, that case concerned the distinct question of whether s 136(1)(a) invested the Commission to make an order for the payment of money in circumstances where such an order was incongruent with s 137(3) of the Act. 9. Second, nothing was said by the Full Bench indicating that directions under s 136(1)(a) were limited to those which were facilitative in nature. Such comments were, in any event, obiter. 10. Third, as McHugh J pointed out in Coleman v Power (2004) 220 CLR 1: Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues. 11. Fourth, the process of statutory construction begins (and ends) with the text of s 136(1)(a), read in context and purposively. In its terms, there is no limitation on the power to make a direction. Nor is one capable of being implied from s 137. Section 137 deals solely with dispute orders contemplated by s 136(1)(c). 12. Fifth, and as the Full Bench explained, a direction under s 136(1)(a) is capable of being enforced (albeit not as a dispute order is under s 139 of the Act) under s 180, which provides that a person in contempt of the Commission is guilty of an offence. 13. Sixth, to the extent such an order would constitute an exercise of iudicial power this does not and cannot operate as a barrier to such a construction of s 136(1)(a) given that tribunals in a State context can have judicial power reposed in them. 14. Seventh, there is a real question as to whether a direction to resolve an industrial dispute constitutes an exercise of judicial power. The grounds on which the orders in the present case are sought include matters of industrial fairness and equity. They are not limited to bare questions of legal rights. The Commission's power under s 136 are wide and it had substantial decision freedom. Further, the fact the disposition of the application involves reaching conclusions or making decisions about legal rights does not mean the Commission is involved in exercising judicial power. Rather, these are steps along the way to the creation of new rights and obligations in resolution of the dispute. The Commission's decision is not, in any event, conclusive as it cannot enforce it. A fundamental aspect of judicial power is the creation of a binding, conclusive or authoritative determination of rights and liabilities that is immediately enforceable and not dependent on any further independent exercise of judicial power. 15. The Commission will, therefore, be creating new rights in resolving the dispute rather than determining existing ones. The power being exercised is one of dispute resolution. It is being exercised by an arbitral tribunal. The nature of a power and its exercise takes its character from the body in which the power is reposed and the way the power is to be exercised. 16. In the event the Commission is against this submission, then recommendation under s 136(1)(a) are sought." [Emphasis in original. Footnotes omitted.]
3. Clearly, given the matters ventilated and the remedy sought, the notifier does not seek an award.
4. The notifier appears to concede that it is doubtful whether the "pronouncement" could be the subject of a direction. This is apparent from the remedy submissions of notifier repeating as recommendations, all of the remedies it seeks as a direction.

The respondent's submissions as to jurisdiction

1. The respondent has not conceded that there is in fact an industrial dispute. It also submitted that, as a matter of discretion, even if there is an industrial dispute, the Commission should not intervene as sought by ASMOF. Set out in its Closing Submissions was: "A. Jurisdiction of the Commission to grant relief sought by Applicant … The Commission's jurisdiction 8. The starting point is the nature and scope of the Commission's jurisdiction and powers sought to be invoked in relation to this dispute. The Applicant seeks that the Commission decide whether the Respondent must provide staff specialists access to dedicated and enclosed offices to enable them to perform their duties. Necessarily the industrial dispute concerns large questions regarding government policy regarding health infrastructure and managerial choices regarding the allocation of working space within the inevitable budgetary constraints that necessarily applies to the provision of public health services. The Respondent contests that the matters in dispute between the parties are capable of being resolved in this Commission in terms of jurisdiction and discretion. 9. The key concept to understanding the Commission's jurisdiction to resolve an industrial dispute and the permissible content of awards is the meaning of the expression "industrial matter" (as defined in s 6 of the IR Act). The expression "industrial matters" has been interpreted broadly and liberally. It is acknowledged that the phrase has been described that "the Commission's jurisdiction as to the subject matters about which it may make an award are extremely wide": Re Pastoral Industry Award [2001] NSWIRComm 27; (2001) 104 IR 168 at [20]. In giving effect to beneficial legislation, the definition extends to "any matter which arises out of the relationship of employer or employee ... even though a matter or thing might have only an indirect (but relevant) connection with work done or to be done, that ... would be a sufficient relationship": Health Services Union v Ambulance Service of New South Wales [2008] NSWIRComm 72 at [22]-[23]. 10. However, the words "in any industry" in the definition requires that the matters must be "industrial" in character, that is, connected or relevant to the industrial relationship between employers and employees working in an enterprise: Federated Engine Drivers and Firemen's Association, of Australasia v Broken Hill Pty Ltd (1911) 12 CLR 398; Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 1) (1930) 42 CLR 527; R v Forster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138. 11. There has been historically a distinction between matters of managerial prerogative and those that will be within the scope of the concept of industrial matters as they pertain to the relationship between employers and employees in their capacities as such (Electrolux Home Products Pty Ltd v AWU (2004) 133 IR 49 at [60]) which directly and not merely consequentially affects the conditions of employment of the relevant employees: R v Kelly; ex p Victoria (1950) 81 CLR 64 at 84; R v Findlay; ex p Commonwealth Steamship Owners' Association (1953) 90 CLR 621 at 629-630 (JBA1859-160); Re MGEFA; ex p Australian Chamber of Manufacturers (1986) 160 CLR 341 at 353. 12. Ultimately, the relevant connection between a matter/clause and the employer and employee relationship will be a question of characterisation and degree. 13. The scope of the Commission's powers is limited to dealing with industrial matters. In making an award, the Commission's jurisdiction is limited to "setting fair and reasonable conditions of employment for employees": IR Act, s 10. The phrase "conditions of employment" includes "any provisions about an industrial matter": IR Act, Dictionary. In addition, the Commission's jurisdiction to arbitrate an industrial dispute includes making a direction or recommendation: IR Act, ss 135(1) and 136(1)(a). An "industrial dispute" means a dispute (including a question or difficulty) about an industrial matter: IR Act, Dictionary. 14. Thus, unless the subject-matter of the industrial dispute is, properly characterised, an "industrial matter", the Commission does not have power to arbitrate the industrial dispute. In order to 'affect' conditions of employment, a matter must produce an appreciable effect on, or change in, the relevant conditions of employment contained in the relevant industrial instrument and contracts of employment. 15. Decisions relating to the design of health infrastructure and the allocation of floorspace in the CCB only consequentially affect the conditions of employment of staff specialists and do not fall within the scope of industrial matter. To the extent that cl 24 of the Award is ambiguous, it should be given a meaning consistent with validating rather than invalidating its operation. 16. Even if the Commission has the jurisdiction to arbitrate an industrial dispute, the Commission should exercise caution before it exercises its power in settlement of a dispute where it amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted': Re Cram; ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 136-137; In re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Pty Company Ltd (1950) 49 AR 371 at 372; BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 127. 17. The Commission's general approach to workplace change is not to infringe upon an employer's right to manage its business unless the emplover's action imposes unfair or unreasonable demands on employees or where it becomes unsafe: The Federated Ironworkers' Association of Australia (NSW Division) v BHP Steel Sheet & Coil Products Division [1992] NSWIRComm 5; John Lysaght (Australia) Limited v Automotive, Metals and Engineering Union and the Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 31; John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award [1995] NSWIRComm 18; Australian Federated Union of Locomotive Employees State Rail Authority of New South Wales (XPT Case) (1984) 295 CAR 188 at 191. 18. Moreover, under s 146(2) of the IR Act, the Commission must take into account the public interest in the exercise of its functions. 19. Health Infrastructure is responsible for the delivery of the NSW Government's major works hospital building program including the planning, design and construction of health capital work The Commission does not exercise its powers where it would intrude on, if not usurp, the functions imposed on a public agency: Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW (In Orders Dispute) [2022] NSWIRComm 1016 at [42]; Application for NSW Ambulance Safe Paramedic Crewing Award [2022] NSWIRComm 1037 at [107]-[115]. 20. In taking into account the public interest, the Commission should not exercise its discretion to grant relief in this case as it would have the effect of interfering with and usurping the statutory functions conferred on the Health Secretary under s 8 of the Health Administration Act 1982 (NSW) and s 126B of the Health Service Act 1997 (NSW) which includes, amongst other things, to plan and assist in the provision of comprehensive, balanced and co-ordinated health services throughout New South Wales including health infrastructure. 21. The Commission should also exercise caution in granting the specific relief sought by the Applicant. It seeks in effect that directions, recommendation and determination be made that the Respondent complies with certain State Government health policies. There is demarcation between the role of Executive Government in the formulation of public policy and the Commission's jurisdiction in resolving industrial disputes concerning industrial matters. The Commission must be guarded in respecting this division of executive power between the Executive Government and the Commission and should decline to intervene to grant relief when that inviolable line is crossed. 22. In New South Wales Nurses and Midwives' Association v the Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1047 at [103]- [119], Commissioner Stanton made similar observations where he found that: a. State health policies are merely an expression of policy and have no legally binding force; and b. the Commission does not have powers to order compliance with such policies as directions pursuant to ss 136 and 137 of the IR Act. 23. As the majority said in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 (at [153]), in a different context: Assessment of the policies and purposes to be pursued by the executive government of a State involves political judgments and consideration of broad matters of public policy. Unless some breach of the law is involved, that is not within the province of the Courts. In our view, there is no basis for any declaration that the policies, or proposed contractual conditions, adopted or announced by the State were invalid, whether by reference to concepts of "responsible government" or otherwise. 24. In a similar vein, the Full Court of the Federal Court in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 noted that even if there is a policy, it is inappropriate to seek to bind Executive Government to non-binding statements which provide a framework rather than a prescriptive standard: Being statements of policy, the Code and the Guidelines do not bind the Executive Government to act in any particular way; and they do not of themselves authorise, forbid, or mandate any particular conduct by anyone. In this instance, the policies set out in the Code and the Guidelines have no authorising statute; and, unlike many policies that touch matters arising in this Court, they are not formulated to inform the exercise of a statutory discretion. Rather, the policy with which these appeals are concerned were relevantly formulated to govern or affect the power of the Executive to make building and construction contracts. In this respect, as statements of policy by the Executive Government, the Code and the Guidelines provided a framework both for the general exercise of the Goverment's contract-making and services procurement and, in some respects, for how that policy was to be implemented: compare Re Becker and the Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 at 701 (Brennan J). 25. In any event, the Commission does not have the power to make the proposed directions sought by the Applicant pursuant to s 136(1)(a). The Applicant refers to the decision of the Full Bench of the Commission in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales Secretary of Industrial Relations [2018] NSWIRComm 1061 (PSA Decision). In that decision, the Full Bench held that directions made under s 136(1)(a) "will, in most cases, be of an administrative or facilitative kind" (at [86]) such as a direction to attend a compulsory conference, to confer or take procedural steps to facilitate the notification or compliance with the Commission's order. The Commission has applied this construction of the PS Decision to other similar situations: ASMOF (NSW). v Health Secretary in respect of the Western Sydney Local Health District [2021] NSWIRComm 1002 at [59]-[61]; The Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081 at [81]. 26. Contrary to the Applicant's submission, the Full Bench's comments were not obiter dictum or distinguishable from the directions sought in this case. The Applicant seeks coercive orders, in the nature of an injunction, that compel the Respondent to take positive action to comply with the Award. Such an order cannot be made by the Commission under s 136(1)(a) and would involve the impermissible exercise of judicial power. 27. Accordingly, the Commission does not have the power pursuant to s 136(1)(a) to issue the proposed directions that would prevent the State from proceeding with the redevelopment of a major piece of health infrastructure, or require the State to provide particular facilities or infrastructure (by way of a particular number of offices) for staff specialists in cancer services at Liverpool Hospital. 28. The Applicant seeks remedies in relation to all staff specialists within cancer services. However, the Commission has heard evidence from only six staff specialists currently working at the LHD as to the current duties that each of them perform in support of their claim to be allocated a single person offices to perform these duties. The evidence demonstrates that the types of work that staff specialists perform in offices varies significantly depending upon a number of factors, including their personal preferences, their clinic duties, their ward duties, their duties outside the hospital (including, in the community) and the days that they work at the hospital. Necessarily, the evidence must be limited to the staff specialists' specific circumstances and reflected the bespoke duties and responsibilities, working practices and working patterns at particular times. In spite of these limitations, at various times, these staff specialists sought to extrapolate impermissibly their circumstances to other members of the cancer services team. There is no evidence or basis to indicate that the six staff specialists are representative of the roles and circumstances of other staff specialists within Cancer Services. 29. For these reasons, there is no evidence that could form the basis of the relief sought by Applicant in relation to staff specialists in cancer services other than those who have given evidence. Moreover, the Applicant has adduced evidence regarding current work practices but seeks to have relief granted to proposed workspace accommodation in 2024. There is no guarantee that the staff specialists will be working at Liverpool Hospital at the time, let alone, that their duties, responsibilities, working practices and working patterns, will remain the same. Accordingly, even if the Commission was minded to make recommendations of the type sought by the Applicant, it can only do so in respect of the six staff specialists who gave evidence about their duties on the assumption that their circumstances will not change. That assumption has not been proven to enable the Commission to make a recommendation which will be useful as it will not necessarily be directed to the situation that will exist in 2024. 30. Finally, the Applicant seeks a number of determinations about rights under the terms of Health policies, the Award and the Work Health and Safety Act 2011 (NSW). The Commission should not make such declarations because, in order to resolve the dispute raised by the Applicant, it does not need to do so. Section 175 of the IR Act provides that the Commission may determine particular questions, for the purpose of exercising its functions in connection with a matter before it: State Transit Authority of New South Wales v Australian Rail Tram and Bus Industry Union New South Wales Branch Bus and Tram Division [2014] NSWIRComm 41 at [154]-[161]. The Respondent acknowledges that it may be necessary for the Commission to determine questions about the interpretation of cl 24 of the Award for the purpose of it resolving the industrial dispute before it by making recommendations but the other determinations that the Applicant seeks are matters that the Commission does not need to determine in order to resolve the broader industrial dispute." [Emphasis in original. Footnotes omitted.]

Whether there is an industrial dispute

1. The Commission has concluded that there is an industrial dispute existing between the parties.
2. It is clear that the dispute relates to the physical office accommodation which will be assigned to the Staff Specialists to perform their work for the respondent. Whether or not the Commission would ordinarily make an award with a term addressing the provision of office accommodation, it is self-evident that such an issue falls within the definition of an "industrial matter" and so a dispute about it is an industrial dispute.

Whether assignment of office accommodation is exclusively managerial prerogative

1. There is more force to the respondent's submissions that nevertheless the Commission would refrain from intervening because the assignment of office accommodation is a managerial prerogative.
2. Set out below in more detail, the Commission has concluded that the Award already has a clause which addresses the provision of office accommodation. Accordingly, there is no basis for concluding that office accommodation is a matter of exclusive managerial prerogative in which the Commission would never intervene.
3. How far the Commission would intervene is a more complex question, but not in principle different from judgments exercised in relation to wage setting and many other matters commonly found in the Commission's awards.

The kind of orders the Commission can and should make

1. Section 136(1) of the IR Act sets out what the Commission may do when arbitrating a dispute pursuant to Chapter 3 of the IR Act: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following - (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis).
2. Neither ASMOF nor the respondent asked the Commission to vary or make an award in resolution of the dispute. Indeed, they agreed that the existing Award was adequate and appropriate, albeit for different reasons.
3. Similarly, neither party sought dispute orders, and it is apparent that none could be made as there is no conduct by anyone which could be addressed by a dispute order.
4. As set out above, ASMOF sought directions, or failing that, recommendations as to a series of matters.
5. The only "other kind of order" which was sought was one pursuant to s 175 of the IR Act. This was as to the meaning of several clauses in the Award and as to a policy made by the Health Secretary titled 'Workplace Accommodation Policy'.
6. The Full Bench in Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102 set out the extent of the Commission's powers pursuant to s 175 of the IR Act: "36. Two things should be noted about the Commission's power from the face of the section. Firstly, it is expressly only for the purposes of exercising the functions of the Commission. Secondly, s 175 provides that the Commission "may" determine those matters. 37. Whether the Commission should proceed to determine any question concerning the application, interpretation or operation of another law will depend on it being relevant to the purpose for which the Commission is exercising the functions of the Commission. … 41. Further, a party seeking to have the Commission exercise the power in s 175 of the IR Act must establish that it is appropriate, as a matter of discretion, for the Commission to exercise that power."
7. The Commission has concluded that there is no legal basis for much of what the notifier has sought, and certainly not as a direction. The submissions of the respondent, in particular at para 25, set out why this is the case.
8. Clearly the Commission has very broad scope to make recommendations, but these should be constrained by practicality industrial reality and relevance. Importantly, in deciding whether to issues recommendations, the Commission should have regard to whether such recommendations would be likely to assist the parties to resolve the dispute directly between themselves, or perhaps with some further assistance from the Commission.
9. The Commission has concluded that it would be appropriate to recommend that the parties re-engage in direct discussions through a series of steps.
10. Because the Commission has determined to make recommendations, and more particularly because the Commission has determined to make recommendations which it considers will assist the parties in resolving the dispute, the Commission has concluded that it is appropriate to exercise powers pursuant to s 175 of the IR Act. This is because to do so would be "… for the purpose of exercising … functions in connection with the matter before [the Commission] …".

The evidence

1. ASMOF led evidence from seven of the Staff Specialists as to the work they performed and why that work required that they have an office which they not share with any other person. The evidence was from: 1. Eugene Moylan, a Staff Specialist in medical oncology, and the Head of Department, Cancer Services Liverpool Hospital; 2. Shalini Vinod, a Staff Specialist in radiation oncology at Liverpool Hospital; 3. Bartlomiej Getta, a Staff Specialist in Haematology, at Liverpool Hospital; 4. Sylvia Ling, a Staff Specialist in Haematology at Liverpool Hospital; 5. Weng Ng, a Staff Specialist in medical oncology at Liverpool Hospital; 6. Ruwanthie Fernando, a Staff Specialist in Palliative Care at Liverpool Hospital; and 7. Rebecca Strutt, a Staff Specialist in Paliative Care at Liverpool Hospital.
2. The evidence of these seven senior, experienced medical practitioners covered significant ground including their professional histories, their work and their daily activities. They uniformly thought they should perform their work in offices they would not share with any other person.
3. The reasons given centred on the following issues: 1. calculating drug dosages, which is a complex process requiring expertise and concentration; 2. delineating cancer boundaries to determine extent of radiotherapy, which is a complex process requiring expertise and concentration; 3. calculating chemotherapy dosages, which is a complex process requiring expertise and concentration; 4. conducting remote multi-disciplinary meetings to determine patient treatment, which is disruptive to anyone else in the room from where a participant is calling in; 5. supervising students and junior doctors, which can involve issues of patient confidentiality or employee confidentiality; 6. meeting with or conducting phone calls with patients and families, which involves issues of patient confidentiality; 7. conducting research, requiring concentration; and 8. dictating notes, which is disruptive to anyone else in the room.
4. ASMOF also led evidence from Elizabeth Sander as to the effects on work efficiency from sharing office space. Dr Sander holds a PhD in Organisational Behaviour and was called to give her expert opinion on shared office spaces.
5. Dr Sander's evidence was in essence that: 1. shared workspaces are highly distracting; 2. shared workspace are, by their nature, stressful for those who work in such spaces; and 3. once a task requiring concentration has been interrupted, it can take a long time to recover the concentration required to return to the task properly.
6. ASMOF led evidence from two industrial officers as to the level of consultation between the parties about proposed changes to office accommodation for the Staff Specialists. This evidence was from: 1. Ms Elishka Skelding, an Industrial Officer for the notifier; and 2. Mr Richard Thompson, a Growth Organiser for the notifier.
7. In summary this evidence was: 1. the respondent had not provided details of the proposed changes initially; 2. when the detail was provided it demonstrated inadequate office accommodation; 3. the respondent had not adopted the changes asked for by ASMOF; and 4. the respondent had not answered all of ASMOF's information requests.
8. The respondent led evidence from senior officers of the LHD, and an officer employed by Health Infrastructure as to the plans, and as to consultation about them with ASMOF and the Staff Specialists. The evidence was from: 1. Karen McMenamin, General Manager, Liverpool Hospital; 2. Karinn Marrone, Director, Liverpool Health and Academic Precinct Redevelopment; and 3. Bruno Zinghini, Executive Director, Western Region for Health Infrastructure.
9. In summary this evidence was: 1. the decision to move and where to move was driven by an executive government decision as part of a larger plan to renovate Liverpool Hospital; 2. the budget provided did not allow for modifications to the floor on which the relevant Staff Specialists would be accommodated, so only a limited number of single occupancy offices could be provided; 3. feedback and suggestions from ASMOF had been taken into account, with changes being made to the original plans; and 4. the cost of the full changes sought by ASMOF could not be accommodated within the budget given for the accommodation of the relevant Staff Specialists.
10. The respondent also led evidence from two Staff Specialists as to the (lack of a) need for single occupancy offices, and as to arrangements for office occupancy for similar specialists at other hospitals in New South Wales. This evidence was from: 1. Elias Nasser, a Staff Specialist in radiation oncology, and Co-Director of Illawarra Shoalhaven Local Health District Cancer Services; and 2. Nirmala Pathmanathan, a Staff Specialist in breast pathology, and the Director of Westmead Breast Cancer Institute.
11. This evidence was to the effect that at other hospitals similar staff specialists share office space without suffering any of the negative effects raised by the relevant Staff Specialists.

Consideration of the evidence

1. The bulk of the evidence is considered elsewhere in these reasons. For example, in considering the meaning of various clauses of the Award. It is not necessary to repeat that consideration here.
2. It is necessary to observe here that the evidence of Dr Nasser and Dr Pathmanathan was not of substantial assistance to the respondent, and this is for the reasons submitted by the notifier.
3. In Dr Nasser's case this was because under cross examination he conceded relevantly similar medical specialists at the hospital at which he works have either single occupancy office accommodation or share offices with others on fractional work arrangements. Occupying shared workspace was therefore rare.
4. In Dr Pathmanathan's case, it was because the staff she supervised were largely not similar to the relevant employees in issue here. To the extent they were similar, those staff appeared not to share office accommodation.

Observations

1. The Commission is concerned that a considerable effort has been exerted, and resources expended, by both parties without any real sense of compromise being displayed by either party.
2. There is little sense in which either party has sought to narrow the issues in dispute, to reduce them to their essence, or to ventilate only the more important issues. Each party has, as already set out at the beginning of these reasons, filed voluminous material. Evidence was heard over six days, with a further day of submissions. A fortnight later, a further written submission was received from the notifier.
3. Neither party presented its evidence, nor made submissions, in a manner directed in any sense to ways in which the Commission could assist the parties to resolve the dispute with a sense of industrial compromise.
4. The Commission observes that the parties agreed that the matter was not of great urgency as the redevelopment in issue was not due to commence construction for many years, and finalisation of building plans was at least years away.
5. There are a range of important factors which appear to have been lost on the participants, none of which the Commission is ideally placed to determine. In addition to the specific medical tasks undertaken by the Staff Specialists across the range of their duties, these factors are the ability to attract such employees to work for the respondent based on the conditions offered, limitations inherent in any public health budget, and impacts of the work environment on patient experience and medical outcomes.
6. The Staff Specialists in question are very senior and experienced medical practitioners whose evidence was that they have the ability to perform their work under a range of conditions from ideal to frankly less satisfactory to them than what the respondent proposes. Conversely their skill, training and experience means that the respondent faces the very real prospect that they will choose to work elsewhere if they are provided with working conditions that are seen as unsatisfactory.

Consideration of the competing interests

1. There is evidence that work is best performed in circumstances in which concentration is not disturbed by unrelated distractions. While this evidence was given in relation to the relevant employees, it is clearly based on research of work in shared office space generally.
2. It is not an easy task to unravel all the competing interests. Indeed, it has been a difficult task to determine the best outcome within the scope of the Commission's powers, and more particularly in the exercise of the Commission's discretion in exercising those powers.
3. Ultimately, the Commission has concluded that a contested arbitration is not an appropriate process through which to resolve the issues between the parties.
4. Most fundamentally, the issues raised go to the medical tasks being performed. The experts in what is to be done, and the facilities genuinely needed to perform those tasks, are the parties.
5. To the extent the employer has considered single occupancy offices necessary, it is telling that they have determined that those down to a level of seniority which can be accommodated by the current footprint are those who require single occupancy offices. That is, that decision was clearly based on seniority, not work tasks.
6. To the extent that the notifier has addressed the need for single occupancy, it asserts that all relevant employees need single occupancy office accommodation. That is, the case-by-case assessment captures all relevant employees.
7. The Commission is not persuaded that alternative working arrangements, especially as they related to remote meeting attendance and dictating versus typing and other logistical arrangements have been properly explored. It is accepted that certain directly medical activities, eg cancer delineation, require single occupancy accommodation for those tasks, but other of the tasks raised less convincingly require total privacy or silence.
8. The Commission considers that conciliation is the best method for the Commission to assist the parties, and the only process available to the Commission which would be appropriate. Fundamentally, the Commission considers that the parties have not engaged in direct discussions with an approach that would lead to progress.
9. The Commission considers that providing interpretations of several matters in contest, and the subject of submissions by the parties, would assist the parties in those discussions.

Clause 24 of the Award - Office, Secretarial and Administrative Support

1. The notifier's case was that the support to be provided to Staff Specialists, in compliance with cl 24 of the Award included a requirement for appropriate physical space. That is, the meaning which should be assigned to the words "office support" extends to a room for their professional use.
2. The notifier said that this was the natural meaning of the clause, but that it was not necessary for the Commission in these proceedings to address that question as the matter had been previously determined in other proceedings before the commission.
3. In ASMOF v Minister of Health (No 2) [2019] NSWIRComm 1063, Commissioner Sloan considered the meaning of cl 24 and concluded that the definition pressed for by the notifier was the correct interpretation of that clause. Moreover, the notifier submitted that because the clause had been adopted in precisely the same form in subsequent iterations of awards of the Commission covering the same employees, and that the respondent had not appealed the earlier decision of Commissioner Sloan, more than being bound by the earlier interpretation, the respondent was estopped from denying that this was the correct interpretation of the clause.
4. The notifier's Closing Submissions set out that: "26. Clause 24 is entitled 'Office, Secretarial and Administrative Support'. It is in the following terms: Staff Specialists will have access to such office, secretarial and administrative support as may be reasonably necessary to undertake the requirements of the position. 27. Clause 24 was construed by Commissioner Sloan in ASMOF v Minister of Health (No. 2) [2019] NSWIRComm 1063 (ASMOF No 2). ASMOF No 2 concerned clause 24 of the 2018 iteration of the Award. The Commissioner published his decision on 6 September 2019. It is of significance, for the reasons detailed below, that clause 24 was reproduced in identical terms in the 2019 iteration of the Award and in the present Award. The 2019 Award was made following the Commissioner handing down his decision. 28. The Commissioner rejected the respondent's contention in that case the clause 24 did not envisage Staff Specialists being provided with a physical office at all and was limited to 'back office' support in the form of the provision of routine paperwork and clerical assistance. Commissioner Sloan said: While there may be elements of office support that include the performance by other employees of particular duties, the term is not limited to that. I agree with the Ministry's submissions that "office support" would include office equipment and stationery. Otherwise, there seems no practical difference between "office support" and work that might be said to be in the nature of secretarial or administrative support. Even to the extent that "office support" must be read in light of the words "secretarial" and "administrative", they cannot be treated as purely synonymous. The words must each be seen as having some work to do. … If it is accepted that "office support" extends to the provision of equipment or other physical items, there is no logical reason why it could not extend as far as to include the provision of a dedicated, enclosed office. To explain: if the term contemplates a staff specialist being provided with stationery, why would it not extend to a desk on which to write and a chair on which to sit when doing so? Why could it not then extend to the environment in which the desk and chair are located? Why could that environment not extend to walls and a (lockable) door? Obviously, there needs to be an end to this logical flow. That end point is provided in the language of cl 24, namely when the level of support would exceed what is reasonably necessary for the staff specialist to undertake the requirements of their position. … To find that cl 24 could extend to include the provision of a physical office would not render the word "support" nugatory, as the Ministry contended. The physical office would simply be one component of the support required to be provided to the staff specialist. I find that on its terms cl 24 encompasses the office accommodation to which staff specialists must have access. (emphasis added) … 31. The respondent has alluded to seeking to challenge the correctness of Commissioner Sloan's construction of clause 24. Any challenge must be rejected and is not properly open to the respondent to make for the following reasons. 32. First, it is a well-recognised principle of the construction of industrial instruments that where a Court of Tribunal has construed a provision of such an instrument and the provision has been reproduced without amendment in a subsequent instrument, the parties can be taken to have intended that the construction of the provision would apply. 33. The principle was classically explained as a component of the contextual construction of an award by Burchett J in Short v F W Hercus Pty Ltd (1993) 30 FCR 511 at 517-518. 34. Walton J endorsed the principles of construction expressed in Short v F W Hercus in PSA v Secretary of the Treasury [2014] NSWIRComm 23 at [128]-[130]. 35. Wheelahan J more recently captured the essence of the principle in King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 as follows: The authorities relating to the construction of industrial instruments illustrate that context may shed light on the proper meaning to be given to expressions that take their colour from the industrial context. The history of provisions of an industrial instrument may also demonstrate that particular expressions have been the subject of interpretation by the courts or industrial tribunals, which may then be taken to have an accepted meaning when, in the same or a similar context, they find their way into later instruments. 36. In the present matter, it is material that Sloan C's construction of clause 24 was known to the parties at the time the 2019 Award was applied for and made by the Commission. The parties did not seek to make any alterations to it. Indeed, the respondent did not refer to the decision being wrong or contested in its application. Nothing was, again, said about the interpretation of clause 24 by Sloan C being wrong or contested in the application for the current Award. 37. The reproduction without amendment of clause 24 in the 2019 and current Award entails that the parties had a common understanding that it operated in accordance with the construction determined by Sloan C. In the circumstances, it is not open to the respondent to contend otherwise or re-agitate the issues it raised in ASMOF No 2 which it chose not to appeal or to cavil with when making application for the 2019 Award and the current Award. 38. Second, the respondent is estopped from now asserting that Sloan C's construction of clause 24 is erroneous. 39. An issue estoppel arises in relation to an issue of fact or law that disposes of an issue between the parties. An issue estoppel will attach to matters that are fundamental or cardinal to a decision, judgment, decree or order, or necessarily involve the legal justification or foundation for the decision, judgment, decree or order. It is plain that the construction of clause 24 was material and fundamental to Sloan C's decision. 40. The doctrine of issue estoppel applies to proceedings before bodies that are not courts. It should be held to apply in the context of decisions in seriously contested matters before the Commission such as the proceedings before Sloan C. In the result, the respondent is estopped from asserting that Sloan C's decision was incorrect." [Footnotes omitted, otherwise extracted verbatim.]
5. The respondent's submission was that the decision of Commissioner Sloan was plainly wrong and should not be followed. They set out: "77. Construction of an award must begin with a consideration of the text considered in its context including the history of the provisions and extrinsic materials. However, context only has utility in assisting in determining the meaning of the text. The award history and extrinsic materials cannot displace the meaning of the text. … . 78. The starting point are the words used in clause 24 of the Award. Those words do not provide for an entitlement to a physical office space as contended by the Applicant. 79. Contrary to the approach taken by the Applicant, in clause 24 of the Award, the word 'office' is not used in the singular but as part of a composite expression. As the words 'office', 'secretarial' and 'administrative' qualify the word 'support', the words are used as adjectives to describe the nature of the support to be provided rather than as nouns describing stand-alone items. 80. The word 'office', used as part of the expression 'office support', is capable of having more than one meaning. The Applicant appears to adopt one definition of 'office'. i.e. "the room or rooms in which the clerical work of an industrial or other establishment is done" or "a room assigned to a specific person or group of persons in a commercial or industrial organisation". However, the word 'office' may also mean "the staff or body of persons carrying on work in a business or other office", usually, a clerical work of routine nature (e.g. office workers) (see Macquarie Dictionary Online). 81. The word 'support' is more naturally paired with the second meaning of 'office'. On its ordinary meaning, the word 'support' denotes "a thing or a person that gives aid or assistance" or "a service providing assistance to the users of a product: product support; customer support" (Macquarie Dictionary Online). Necessarily, to provide 'support' requires someone or something providing assistance to another person. 82. As a compound expression, the phrase 'office support' is therefore more readily understood to mean to the provision of clerical assistance in completing routine paperwork and forms, taking messages and answering routine correspondence and calls, managing diaries, providing typing services, filing documents and the supply of office equipment and stationery. Conversely, the words 'office support' are not apt to refer to office accommodation. 83. In understanding which meaning of 'office support' applies, the expression "office, secretarial and administrative support" must also be construed as a whole. Relevantly, the words 'office ... support' must be read together as an expression in light of the other kinds of support addressed in the clause, namely, 'secretarial support' and 'administrative support'. The maxim of interpretation - noscitur a sociis - has relevance here; that is, the meaning of a word or words can be gathered from the associated words used in their immediate textual context. This principle requires that a word or phrase not to be construed as if it stood alone but must be understood in the light of its surroundings. The grouping of words together is thus indicative that they should be understood in the same sense or as being analogous in nature: Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207 at [30]-[31]. 84. The Applicant advances a construction of the words 'office support' to include the provision of an enclosed room, which can only be occupied by one staff specialist. Such a construction, however, renders the word 'support' nugatory. A standard rule of construction is that courts and tribunals should strive to give all words their proper meaning and operation. On the Applicant's construction, the provision of 'office support' is the provision of a single person office itself. Such a meaning would give a circular definition to the phrase 'office support' and strain the natural usage of the words. 85. The background to the making of clause 24 supports this construction: Exhibit R5. In particular, the negotiations for the insertion of the original clause in the 2006 Award shows that it concerns providing staff specialists with access to resources and facilities such as the internet, professional journals, textbooks and databases as well as office management help such as typing, telephone reception, etc. Nothing in the material suggests the parties contemplated that office accommodation in the form of enclosed offices was contemplated. To the extent that the parties had discussions on the issue of office accommodation, it occurred outside the context of award negotiations about cl 24 and predecessor clauses. 86. For these reasons, the Respondent submits that clause 24, properly construed, does not in any way mandate that a physical office space be provided to staff specialists. 87. The Respondent acknowledges that the construction of clause 24 of the Award has been considered by Commissioner Sloan in Australian Salaried Medical Officers Federation (NSW) v Ministry of Health (No 2) [2019] NSWIRComm 1063 where a different construction was reached. Commissioner Sloan held: a. At [28], that he did not accept the Applicant's submission that clause 24 mandated the provision of an office to all staff specialists; and 2. At [29] - [43], that clause 24 of the Award could extend to include a requirement for the provision of a physical office, where such a physical office was reasonably necessary for the staff specialist to undertake the requirements of their position. 88. The Respondent submits that Commissioner Sloan was plainly wrong in relation to the construction set out at [29] to [43] of the decision. The Respondent maintains its contention that the composite expression 'office support' in clause 24 is not capable of mandating that an office be provided. 89. As the Full Bench of this Commission explained in Health Employees' Conditions of Employment (State) Award 2018 (Infectious Cleaning Allowance) [2021] NSWIRComm 1049 at [31] to [33], comity does not necessarily 'compel' the Commission to adopt the same interpretation as Commissioner Sloan (especially not where the earlier decision is wrongly decided). Rather, the task of the Commission is to form its own view as to the proper construction of clause 24 of the Award - and in doing so, give earnest consideration to whether or not to follow the approach taken by Commissioner Sloan. 90. As to the Applicant's submissions that the Respondent cannot, now, raise these matters because: a. it agreed to enter into the 2021 Award, with the same clause 24, after Commissioner Sloan's decision; and b. an issue estoppel arises to prevent it raising the construction points above, again, in this matter. 91. As to the first matter: in the application for the Commission's approval of the 2021 Award, the Health Secretary explained that it sought a new award which simply 'rolls over the existing conditions currently provided by the award' and provided a pay increase of 2.04% to salaries and salary-related allowances. There was no negotiation over clause 24 of the Award or consideration in that process (let alone agreement between the parties) that such a remuneration increase would act as a confirmation of a particular construction of clause 24 of the Award. Further, the application for approval of the 2021 Award was made on 25 June 2021, that is, at a time when these proceedings between the parties were on foot following the Applicant lodging its dispute notice on 11 March 2021. These proceedings have always involved a dispute about the construction of and application of clause 24 - and the making of a revised award for the purposes of a salary increase part way through this dispute does not prevent the Respondent from making submissions about the correct construction of clause 24. 92. As to the second matter, no issue estoppel arises. This concerns matters of legal interpretation and not factual matters. Moreover, these proceedings are vastly different to the 2019 dispute. Firstly, the local health district and hospital at which the staff specialists work are different (even if the Respondent is the Health Secretary in respect of each of these local health districts). Secondly, the primary issue in relation to Liverpool Hospital is whether staff specialists can be asked to share enclosed offices. The primary issue in the proceedings before Commissioner Sloan was whether staff specialists, in an emergency department, can be asked to work without any discrete offices at all (instead working in 'agile' activity-based environment). 93. These significant differences between the parties, facts and issues mean that no issue estoppel arises to prevent the Respondent raising matters previously submitted." [Footnotes omitted, otherwise extracted verbatim.]
6. It does not appear to the Commission as currently constituted that the ordinary meaning to be ascribed to the words "office support" would either naturally or obviously include physical office accommodation. That said, it would be odd that the Award should set out that administrative or clerical support should be provided and yet leave it unspecified whether physical office space should also be provided, as was observed by Commissioner Sloan.
7. The Commission is unable to conclude that Commissioner Sloan's decision was plainly wrong. Further, the notifier's submission that the respondent did not appeal his decision and agreed to insertion of the identical clause in subsequent versions of the Award has considerable force. The Commission considers that the interpretation of cl 24 determined by Commissioner Sloan is the appropriate definition to be adopted in these proceedings.

What is 'reasonably necessary'

1. When it came to the meaning of the phrase "reasonably necessary", the parties were closer to agreement. Both parties submitted that what was ultimately necessary was to assess the needs of each Staff Specialist individually.
2. In terms, the notifier submitted that: "30. An assessment of whether it is reasonably necessary for a Staff Specialist to have a single office impels an individualised assessment that takes into account the individual Staff Specialist's duties, functions and responsibilities. It is theoretically possible that a particular Staff Specialist may not require access to a single office given their peculiar circumstances, but another may. This is a matter of significance in the context of the present dispute, as the respondent conducted no analysis about the requirements of individual Staff Specialists in determining that they would work in shared office spaces in the Carolyn Chisholm Building. The requirement for an individualised assessment is also reflected in the Policy and discussed further below."
3. In terms, the respondent submitted that: "D. Provision of designated enclosed office is not reasonably necessary 94. Even if the interpretation adopted by Commissioner Sloan is adopted, the extent of access to office support that must be provided is that which is 'reasonably necessary' to enable staff specialists to perform their position. 95. The words 'reasonably necessary' require an evaluative judgment involving questions of degree: Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 at [144]. Determining what is 'reasonably necessary' to achieve a designated purpose or outcome is an objective assessment having regard to the circumstances of the case. The expression means a necessity which goes beyond mere desirability or convenience but does not have to be essential to achieve the intended outcome: Lonergan v Lewis [2011] NSWSC 1133 at [32]; ING Bank (Australia) Ltd v O'Shea [2010] NSWCA 71 at [48]-[49]. 96. In the present case, the content of the evaluative judgment involved in determining the 'office support' which is reasonably necessary to enable a staff specialist in Cancer Services to perform his or her position must be understood in the industrial context of the duties and responsibilities of a staff specialist under the Award. The starting point must be to identify the requirements of the staff specialists in performing their position. The Award provides that the 'Normal Duties' and 'Practice' of staff specialists comprise the "clinical, teaching, research, administrative, quality improvement or other duties and responsibilities undertaken" by the staff specialist: cl 2. These duties must be performed during the course of a working week: c 4. 97. As the range of duties performed by staff specialists includes but is not limited to 'administrative' duties, there will necessarily be occasions where a staff specialist will be working elsewhere to perform clinical, patient, research and teaching work which will not require an office. Thus, the diverse range of duties required to be performed and the different times that they may be required to be performed under the Award suggests that a permanent enclosed office designated to the staff specialist is not essential to perform their position on all shifts. This is reflected in the current disparate range of office accommodation arrangements applicable to staff specialists employed by the Respondent, and also other Local Health Districts about which evidence has been adduced. 98. In the present case, the Respondent submits that the expression 'reasonably necessary' must be given content consistent with long standing and established industrial principle. As the authorities indicate that the words 'reasonably necessary' involve an evaluative judgment, latitude is given to the LHD to determine the different kinds of support which may be provided to enable a staff specialist to perform his or her job. 99. Indeed, consistent with this approach, clause 30 of the Award operates on the premise that the Health Secretary has the right to introduce major workplace change so long as the workforce and their union representatives are notified and consulted in relation to any significant effects arising from such a decision. 100. Moreover, consistent with the principles and approach set out in Part A, the LHD has the right to determine the appropriate level and form of office support unless it is unreasonable, unjust or unsafe. Put another way, the Commission's role in determining whether the access to office support given is 'reasonably necessary' is not to endorse or prescribe the desirable or preferable form and level of office support but is confined to determining whether or not the office support provided is unreasonable, unjust or unsafe in enabling staff specialists to perform the requirements of their role. 101. In any event, the evidence demonstrates that in the particular circumstances of the staff specialists working in cancer services in Liverpool Hospital, it is not reasonably necessary for such staff specialists to each have access to a designated single person office in which to perform administrative duties. 102. As the extracts of evidence recorded in Schedule 1 demonstrates: a. of the seven staff specialists who have given evidence, all have previously worked in a public hospital environment in a shared office; b. when doing so, they performed many of the same duties that they perform now, including duties that they complain in their statements cannot be performed in a shared office; and c. when doing so, they managed to adequately and safely perform their work, albeit that they found that at times sharing an office meant that they were not as efficient as they would like to be. 103. Further, the staff specialists' evidence merely recorded: a. their perceptions about the work that they perform in their office and how much time they are required to spend working in their offices; and b. perceived difficulties of working in a shared office, and issues that they see in performing certain tasks in a shared office. 104. The Applicant's witnesses have specifically expressed concerns about patient safety, patient confidentiality and their ability to perform particular duties in a shared office environment. 105. However, the cross-examination of these staff specialists demonstrated that perhaps some of this evidence was overstated. The extracts of evidence recorded in Schedule 2 demonstrates that: a. these staff specialists perform many of their duties outside of their office, including: i. work performed in clinics; ii. work performed in ward rounds; ili. work performed in the laboratory; and iv. the attendance of regular meetings with colleagues; b. these staff specialists have several appointments and roles outside of Liverpool Hospital which involve their travelling to other places in Sydney and its surrounds and working there; c. these staff specialists spend a significant amount of their time (when at Liverpool Hospital) in clinics and ward rounds, which take place in clinical sections of the Hospital outside and away from these offices; and d. these staff specialists also spend a significant amount of their time in departmental and other meetings, which before COVID-19 were all in person, and are now generally operated such that they can be attended either in person or online (at the staff specialists election) and if the staff specialist was sharing an office, and did not want to attend a meeting online in their office because it could cause distractions, they would be able to attend the meeting in person (or, the Respondent would be able to direct them to attend the meeting in person, to avoid and resolve such potential distractions)." [Emphasis in original.]
4. Perhaps unsurprisingly, the effect of the notifier's assessment was that it was reasonably necessary for all Staff Specialists to have their own individual office space. Equally, the assessment of the respondent was that few of them reasonably required such space.
5. The respondent's submissions that the evidence of the notifier's witnesses was overstated as to the privacy concerns, and medical risks has considerable force. During cross-examination about to privacy issues each of the Staff Specialists gave evidence that they were able, albeit at some inconvenience on occasion, to satisfactorily deal with any privacy concerns. To satisfy these concerns they were not always available immediately when a patient or family member called or able to make outgoing calls at the time they had originally planned to have a conversation. Like many busy professionals, they will doubtless be put to some inconvenience, but the evidence did not establish it would be impossible for them to make such arrangements, or that it would be unreasonably inconvenient.
6. In terms of safety and patient outcome concerns, each of the Staff Specialists expressed concerns about safety of the work they performed were they required to share office space. Yet each of them when specifically asked denied ever having experienced such an event. Indeed, they are all gave evidence that no such risk had never arisen even in circumstances where they had shared office space previously.
7. It was clear from both the expert evidence of Dr Elizabeth Sander, and that of each of the Staff Specialists, that having a private office free of the distractions from any other person was the most efficient arrangement for the performance of work requiring high levels of concentration. This of course is unexceptional and accords with common sense.
8. Dr Sander's evidence did address the work of the Staff Specialists, but it is clear that her opinions were not restricted to that work. Her opinions were such that they applied generally to shared workspaces.
9. Many workers use shared office space. There is, as the respondent submitted, a trade-off between efficiency and cost of shared versus individual office space. This is particularly the case where an employee is not based in such an office full-time, whether because they do not work full-time hours or because they spend some of those working hours elsewhere, or both.
10. The Commission does not conclude that the issues raised by the Staff Specialist rise to the level of a work health and safety concern for those workers. Properly analysed that was not the evidence which was given by the Staff Specialists. Their evidence was that there may be some inefficiency in the way they arrange their day, and some personal inconvenience from time to time.
11. These workers are the beneficiaries of an award of the Commission which, differently from most awards, prescribes that they are to work "at least 40 hours per week". The highest the evidence reached was that it was possible they may, from time to time, work some extra time as a result of an arrangement where they do not have a private office. The evidence was that they wished to work less hours, not that such arrangements would cause them to work unreasonable hours.
12. The Commission does not accept that every activity undertaken by the Staff Specialists when sitting at an office desk requires such a level of concentration that they cannot have another person physically present in that office. Indeed, a good part of the evidence suggests that there would be substantial periods of time when two people would be present, each quietly working without providing any disturbance to the other. And substantial periods where one or other was not in the office, while working elsewhere.
13. There were examples given where, for limited periods, the work of a particular Staff Specialist could involve an activity which would disturb, or be disturbed by, the work of another person in the same office. These included, for example, delineating cancer which would require dimming of office lights.
14. In summary, there are a range of examples given some of which may amount to a reason for a particular Staff Specialist to have their own office for at least a particular period, some examples would amount to a material inconvenience but which may or may not rise to the level of reasonable necessity for a private office, some which might require some compromise between office occupants, and others which were plainly simply a matter of personal preference which could be readily solved by time shifting a particular activity.
15. Complex and competing factors need to be balanced in determining office accommodation. The medical necessity of private space, the right of management, and indeed of executive government, to determine at least some extent the quality of workspace it provides, and whether such workspace impacts on employee health and safety, are the main factors.
16. The Commission's conclusions as to the last of these issues are set out above. The Commission is not best placed to determine the medical necessity for single occupancy workspaces; the parties are the ones able to best determine this.
17. In such circumstances, the Commission would be reluctant to intervene in setting office accommodation "entitlements" for employees when to do so could have dramatic implications for the rights of executive government to set departmental budgets. Executive governments are accountable to the public for such choices.

Clause 30 of the Award - Consultation Regarding Change

1. The parties were, as much of the rest of the proceedings, a considerable distance apart as to the extent of consultation, and in particular as to the quality of that consultation.
2. The notifier submitted that: "41. Clause 30 is entitled 'Consultation Regarding Change'. Clause 30 is a mandatory term of kind contemplated by s 14(3)(a) of the Act. 42. Clause 30(a) provides that where the respondent has made a definite decision to introduce changes in 'organisation, structure, health service delivery or technology' which are likely to have 'significant effects' on employees covered by the Award, it is required to consult with the applicant and employees who may be affected, which consultation is to occur as soon as practicable after the decision has been taken. 43. The concept of 'significant effects' is detailed non-exhaustively in clause 30(b) to include, relevantly, major changes in the 'composition, operation or size' of the respondent's workforce or skills required, and changes in employment or promotional or job tenure for a group of employees. 44. Clauses 30(c)-(b) (noting that there is plainly a typographical error in the Award with a second (b) being included in lieu of (d)) set out the content of the obligations to consult and require the respondent to discuss the effects the changes are likely to have, measures proposed by the respondent to avert or mitigate the adverse effects of such changes, and to give prompt consideration to matters raised by affected employees or the applicant in relation to those changes. 45. Clause 30(d) is in the following terms: With respect to occupational health and safety matter as referred to in the Work Health and Safety Act 2011, the provisions of that Act apply, and specifically the provisions under Section 47, "Duty to consult workers", as varied from time to time. 46. The relocation of Staff Specialists to the Carolyn Chisholm Building and the significant accommodation changes to be foisted on Staff Specialists, in particular, the requirement that they share office accommodation and no longer be provided a single office space was a change to 'organisation' for the purposes of clause 30(a). The noun 'organisation' refers to the 'action of organising something'. 'Organisation' in the context of clause 30 refers to the manner in which the respondent arranges, manages or organises its enterprise. The accommodation provided to Staff Specialists at Liverpool Hospital is a matter that relates to how Cancer Services at Liverpool Hospital is arranged, managed or organised. The proposed change in accommodation for Staff Specialists was, therefore, a change in organisation for the purposes of clause 30(a). 47. The noun 'structure' in the context of clause 30(a) means the way in which a thing may be made, built or organised. The way in which the Cancer Services at Liverpool Hospital are built or organised insofar as this pertains to the accommodation of Staff Specialists is a matter relating to 'structure'. The proposed change in accommodation for Staff Specialists was a change in structure for the purposes of clause 30(a). 48. The phrase 'significant effects' is not exhaustively defined in clause 30(b). The five matters set out are but examples of changes which may have significant effects on employees. The prefatory adjective 'significant' means 'important, marked, notable, striking'. The noun 'effect' means a result or consequence. The change in office accommodation proposed was relevantly important, marked, notable and striking. It involved a significant alteration in the manner in which Staff Specialists would work and their working environment. 49. The proposed change was, therefore, one which was likely to have 'significant affects' on the Staff Specialists the subject of the change and the obligations to consult under clause 30 were enlivened." [Emphasis in original.]
3. The Respondent submitted that: "14. Despite clause 30(a) to (c) of the Award not requiring consultation in relation to this proposed change, the LHD engaged in consultation with the Applicant and its members and the Respondent anticipates that the evidence at the hearing will demonstrate that this consultation was genuine and thorough. 15. This consultation can be briefly summarised in the following chronology, prepared from the Respondents' witnesses' statements: a. Since 6 May 2019 a number of Union Specific Consultative Committee meetings have been held which relate to the Cancer Services Team to consult in relation to the redevelopment, such meetings occurring quarterly until April 2020 when they commenced occurring on a monthly basis; b. In August 2019 a preferred concept design of the proposed redevelopment was presented to the Liverpool Hospital 'Executive User Group' (a group which included members of the Cancer Services Team, including Dr Eugene Moylan), this Executive User Group continued to meet monthly until November 2020; c. Since 6 November 2020, ongoing consultation meetings of the Cancer Services Administration 'Project User Group' have been taking place to gather and incorporate the Cancer Services Team's views in the redevelopment process (meetings held on 6 November 2020, 7 December 2020 and 6 April 2021); d. On 4 December 2020, Dr Moylan made a formal request for 59 single person offices and 20 shared offices in the proposed redevelopment on behalf of staff in the Cancer Services Team (though due to technical issues this request was not received under March 2021); e. Consultation meetings were held on 19 and 27 April 2021 in relation to this request; f. A further consultation meeting was held on 26 February 2021, between the Liverpool Hospital General Manager, Karen McMenamin and Dr Moylan and other members of the Cancer Services Team at which further options and alternatives were discussed: g. On 4 May 2021, Dr Moylan's request was considered at a meeting of the Executive of Liverpool Hospital; h. At this meeting, the Executive determined that in its view, some senior positions in the Cancer Services Team should have their own office (specifically the roles of Clinical Director / Head of Department, Nurse Manager and Nurse Unit Manager), though that the remainder were able to share offices; and i. This was communicated to Dr Moylan and the Cancer Services Team in a meeting on 14 May 2021 and in writing on 17 May 2021. 16. So, while it wasn't required to consult, the LHD has consulted (and continues to consult) with the Applicant and its members about the proposed redevelopment. As a result of this consultation, changes have been made to the proposed plans for the redevelopment in so far as it relates to the Cancer Services Team (including the inclusion of dark rooms for those working in radiation oncology and inclusion of a microscope room for those working in hematology). 17. It is not necessarily for the Commission to intervene and make any orders in response to the Consultation Claim."
4. The respondent presented extensive documentation, was able to list a large number of meetings and refer to extensive exchange of correspondence in support of its case that consultation had occurred, and indeed was ongoing. The respondent conceded that there had been difficulties in the exchange between the parties, such as feedback by or on behalf of the notifier which had been misplaced by the respondent for a significant period, but that in the context of the timeline being worked to for the redevelopment these were no more than unfortunate.
5. It was the case for the respondent that the notifier's submission, and the evidence of the notifier's members, amounted to a position that consultation was not genuine unless and until the respondent agreed with the totality of the notifier's proposed outcome. Given the way in which the notifier's case was put, and the tone of its responses directly to the respondent, it is easy to understand why the respondent viewed the notifier's case in such terms.
6. For its part, the notifier acknowledged that substantial material had been exchanged but complained that its feedback had not been adopted. While the Commission considers that the notifier has in fact adopted a position where consultation can only be genuine if all of its demands are met, cross examination of health infrastructure witnesses did ultimately establish substantive failings in the consultation undertaken by the respondent.
7. Under cross-examination the witnesses for the respondent acknowledged a constraint, not based on medical need or on consideration of the work undertaken by the Staff Specialists. This constraint was that the relevant Staff Specialists would be housed on a particular floor in a building set to be refurbished. There was no consideration that the Staff Specialists could be accommodated in any other location.
8. Moreover, the respondent's witnesses articulated an exogenous constraint that the floor onto which the Staff Specialists would be relocated could only be refurbished subject to the constraint that existing walls and facilities, such as toilets and kitchens, would not be moved. The refurbishment must be within the constraints of the existing facilities and walls on that floor.
9. In circumstances where such constraints are the starting point of consultation, it is not possible for that consultation to be undertaken in a manner which is in compliance with clause 24 of the Award.
10. An obligation on a person to consult with a second person does not of course mean that the second person's agreement needs to be obtained. Conversely, the taking by the second person of an unreasonable position does not of itself establish that a consultation has been discharged by the first person.

The respondent's Workplace Accommodation Policy

1. The applicant submitted that: "66. A policy directive issued by the Secretary of the respondent entitled 'Workspace Accommodation Policy' applied to new and refurbished workspace accommodation from 17 December 2019. It was expressed to apply to Local Health Districts and Public Hospitals. It applied to the respondent in relation to the provision of office accommodation to Staff Specialists and, in particular, their relocation to the Caroline Chisholm Building and the provision to them of shared office spaces in that building. 67. The Policy relevantly provided that: a. a 'Workspace' was a non-Operational Space, where staff carried out office-based functions such as administrative, managerial, clinical follow-up, planning and research activities: cl 1.2. An 'Operational Space' was defined to mean a clinical area where direct patient care takes place. Plainly, the offices afforded to Staff Specialists are 'Workspaces' for the purposes of the Policy; b. workspaces were required to be created to suit the needs of those who worked in them and must maintain the safety and wellbeing of staff: cl 1.1; c. it supported a mix of enclosed and unclosed spaces tailored to support the work activities of the staff that will use them, including both single-person and multi-person enclosed spaces: cl 2.2.2; d. Workspaces were not to reflect a one size fits all approach. Engagement and consultation processes were required to be followed to understand how people in the organisation worked individually: cl 3.2; e. consultation was required to be consistent with the provisions of the WHS Act and Award: cl 3.2; f. 'Workspaces must reflect the results of a Work Health and Safety risk assessment undertaken in consultation with workers, their health and safety representatives, and Work Health and Safety Risk Managers': cl 3.2; g. consultation was to occur sufficiently early in the planning stage so employees affected could provide feedback and their views be taken into account in the decision-making process: cl 3.2; h. in relation to Staff Specialists, the following was said about clause 24 of the Award: Clause 24 does not mandate the provision of a dedicated, enclosed office to all Staff Specialists, whether on an individual or a shared basis. Clause 24 encompasses the office accommodation to which Staff Specialists must have access. The office accommodation could extend to an enclosed office, including on an exclusive or shared basis, but need not do to. An "office" can include the broader area in which a workforce might work... The nature of the office accommodation to which a Staff Specialist must be given access will depend on what is reasonably necessary for the Staff Specialists to undertake the requirements of their position. This is to be determined on a case-by-case basis, taking into account the work performed by the Staff Specialists an the place at which it is performed... (emphasis added) 68. A number of observations about the Policy can be made. The Policy, importantly, requires that a risk assessment was required to be undertaken in relation to any office accommodation. This is to be conducted in collaboration with workers affected, in this case the Staff Specialists. Moreover, it determines that consultation is required with individual workers affected to understand their individual circumstances and ensure that appropriate accommodation is provided to them to reflect their circumstances. Further, the Policy mandates that accommodation for Staff Specialists is required to be determined on an individualised and case-by-case basis. The circumstances of an individual Staff Specialist have to be understood and accommodated in formulating the nature and level of accommodation to be provided to them. Finally, the Policy requires that consultation be in accordance with the WHS Act. 69. The Policy is an 'instrument' which the Commission is able, in exercise of its jurisdiction under s 175 of the Act, interpret for the purposes of exercising its functions under Parts 1-2 of Chapter 3 of the Act." [Emphasis in original. Footnotes omitted.]
2. As to the Workplace Accommodation Policy, the respondent submitted that: The Workspace Accommodation Policy (Policy) 62. The Applicant complains that there has been a failure to consult as contemplated by the provisions of the Workspace Accommodation Policy. The Applicant submits that the Policy requires: 1. (per cl 3.2) that the design of 'Workspaces' reflect the results of WHS risk assessments undertaken in consultation with workers; 2. (per cl 3.2) that consultation is to occur significantly early in the planning stages so employees affected can provide feedback and their views be taken into account in the decision-making process; and 3. (Per cl 3.3.1) that the nature of office accommodation to which a staff specialist must be given access will depend on what is reasonably necessary ... to undertake the requirements of their position... to be determined on a case-by-case basis. 63. The Applicant alleges that these provisions of the Policy have not been complied with because, prior to a decision being made by Health Infrastructure to allocate particular floor space in the CCB to cancer services administration offices, consultation with staff specialists did not occur in relation to these matters. 64. The Applicant's submissions are misguided. 65. The Policy discusses consultation relating to the development of 'workspaces', being 'non-Operational Space in which staff carry out office-based functions...'. The Policy contemplates that the matters set out in paragraph 62 above will occur as part of consultation between HDs and health workers regarding the development of such 'workspaces'. 66. The Policy does not concern the allocation of health infrastructure or the footprint available to particular LHDs as part of the development or refurbishment of new or existing health infrastructure. That is, the Policy does not bear upon the decision to allocate the designated floorspace in the CCB to the cancer services team. 67. The development of workspaces' comes after such a decision has been made. Once the infrastructure availabilities are known to workers and LHDs, these parties can engage in consultation in relation to the matters set out in the Policy (being, the development of 'workspaces' within such available infrastructure). 68. However, there are other State policies and procedures relevant to the decision as to what infrastructure and floorspace can be allocated to Liverpool Hospital's cancer services team including, the NSW Government Fitout Design Principles (Fitout Design Principles). The Fitout Design Principles provide that 'all new fit-outs for office accommodation must not exceed the workplace density of 12 square metres per workpoint' (that is, a workplace density cap). 69. Bruno Zinghini from Health Infrastructure explained in his uncontested evidence that based on the versions of the working plans and projected workforce as at the date of his statement (19 October 2021) - with the number of anticipated workpoints in the space within the CCB allocated to cancer services, this workplace density cap had already been exceeded, with the area allocated being approximately 25% larger than the maximum area allowable under the relevant policies and guidelines. Mr Zinghini further explained that this has been authorised and allowed by the State because the project involves the utilisation and refurbishment of an existing building. The Policy acknowledges at cl. 2.2 that the process of developing new workspaces for NSW Health staff must be undertaking in according with the planning and design criteria set out in the Fitout Design Principles. 70. So even if the process of designing the LHAP redevelopment was rescinded and restarted, the workplace density cap will likely prevent a design being developed which will see more single person offices allocated to the cancer services team." [Emphasis in original. Footnotes omitted.]
3. It is readily apparent that the arguments of the parties as to the meaning of the Policy encapsulate the positions of the parties more generally.
4. The applicant's submissions as to the powers of the Commission pursuant to s 175 of the IR Act are likely correct; the Commission likely has the power to interpret the Policy. However, given that the interpretation of the Policy advanced by the applicant is that office accommodation should be determined on a case-by-case basis, it not essential to thoroughly analyse the Policy. The Commission has already determined that the Award has such a requirement.

Outcome

1. The Commission declines to issue the directions or recommendations sought by the notifier.
2. The Commission recommends that the parties: 1. assess the necessity for single occupancy accommodation for each of the relevant employees on an employee-by-employee, task-by-task basis, starting without presumptions or pre-conditions; 2. determine the extent to which the outcome of the assessment under recommendation (1) can be accommodated within the existing budgetary constraints, and the extent to which this is not possible; 3. in making the assessments under recommendation (2), give consideration to flexible working spaces, for example rooms dedicated to particular tasks, such as medical functions or meetings, as well as dedicated personal single occupancy offices; 4. determine if the executive government will agree to changed budgetary constraints which will accommodate needs identified under recommendation (2); 5. finalise accommodation plans within the ultimate outcomes of these recommendations; and 6. utilise the assistance of the Commission in implementing recommendations (1), (2) and (3). C Muir Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2023