Australian Salaried Medical Officers Federation (NSW) v Ministry of Health

Procedural matters

1. The hearing of this issue took place on 30 May 2019. Mr Mark Gibian SC of counsel appeared on behalf of ASMOF. The Ministry was represented by Mr Michael Seck of counsel.
2. ASMOF read an affidavit of Andrew Holland, the Executive Director of ASMOF, sworn on 22 May 2019. It relied on written submissions, including submissions in reply.
3. The Ministry read statements made by Melissa Collins, the Director Industrial Relations and Human Resource Policy in the Workplace Relations Branch of the Ministry, dated 18 April 2019; David Ballantyne, the Executive Director, Development & Innovation with Health Infrastructure, dated 15 April 2019; and, Bruno Zinghini, the Executive Director, Western Region with Health Infrastructure, dated 16 April 2019. The Ministry also relied on a written outline of submissions.
4. None of the witnesses called by either party was required for cross-examination.

Outline of submissions

1. ASMOF contended that cl 3(h) of the Award requires the Ministry to continue to apply the Policy Directive pending the arbitration of the substantive dispute by the Commission. Its position may be summarised as follows: 1. the substantive dispute between the parties concerns the interpretation, application or operation of the Award, and as such is an "issue" within the meaning of cl 3(b); 2. the Policy Directive must be considered to be part of the Ministry's "work procedures and practice", which by virtue of cl 3(h) "must continue as they existed before the issue arose or before any change was made to those procedures or practices which caused the issue to arise"; 3. the purpose of cl 3(h) requires that work continue without disruption and that existing procedures or practices continue pending the resolution of the dispute. That provision ensures that the parties are not prejudiced and that the capacity of the parties and the Commission to resolve the dispute is not compromised whilst the dispute resolution procedures are being followed. The interpretation urged by ASMOF is consistent with that purpose; and 4. if the status quo requirement in cl 3(h) were interpreted in some narrower fashion, it would permit changes to be implemented which may have the effect of preventing the resolution of the dispute by the parties or by the Commission. This dispute is an example. If the Ministry introduces changes to the office accommodation arrangements of staff specialists prior to the Commission dealing with the dispute, those changes may be practically difficult and expensive to undo.
2. In reply, the Ministry contended that the status quo provision set out in cl 3(h) does not apply in this case. Its arguments may be summarised as follows: 1. ASMOF has not invoked, or has not properly invoked, cl 3. Clauses 3(d) to 3(g) must be followed before the matter may be referred to the Commission for assistance in resolving the dispute. No evidence exists that a staff specialist had invoked cl 3 by taking the steps set out in cll 3(d) to 3(g). The dispute notification lodged to commence these proceedings on 18 July 2018 did not refer to invoking cl 3 of the Award. Unless cl 3 has been invoked, or properly invoked, cl 3(h) does not apply; 2. the dispute does not involve an "issue" within the meaning of cl 3. On its terms, the clause only applies to individual issues about the interpretation, application and operation of the Award in relation to actual circumstances of an individual case. The issue must be capable of resolution at a local level between a staff specialist and his or her immediate supervisor. The nature of the issue in dispute identified in the dispute notification does not bear the character of a local dispute between a staff specialist and the Ministry; 3. in order to claim the benefits of the issue resolution procedure in cl 3, the procedure must have been followed. As the issue resolution procedure has not been followed, both in terms of escalating the issue through the mandatory steps or progressing negotiations in a timely manner, there is no corresponding obligation placed upon the Ministry to continue the status quo; and 4. the Policy Directive is not a "work procedure and practice in place". On its proper construction, the status quo provision is directed to the physical aspect of doing the work and not the environment in which an employee performs such work. The Policy Directive does not concern how work is performed but the environment in which some of that work is performed. Further, no consistent practice exists throughout the NSW health system regarding office accommodation. Further, once the Policy Directive ceased to be consistent with NSW government policy, it ceased to operate and had to be replaced.
3. The Ministry submitted, in the alternative, that if the Commission determines that the status quo obligation applies to the present case the Commission could, as a matter of discretion, refuse to exercise its discretion to grant any relief set out in s 136 of the Industrial Relations Act 1996 (NSW) ("Act"). This submission was based on a number of contentions, which may be summarised as follows: 1. ASMOF had previously sought and the Commission had already exercised its power to make a recommendation on the issue of the status quo. If a party is able to seek a recommendation on the same issue on more than one occasion, it will add uncertainty, time and expense to the resolution of an industrial dispute; 2. ASMOF and the staff specialists have not complied with the mandatory issue resolution procedure by not following the prescribed steps and seeking to resolve the issue in a timely manner. Section 131 of the Act states that it is desirable that the parties follow the mandatory award dispute procedure in order to access the Commission's dispute resolution powers; 3. the correspondence between the parties makes clear that ASMOF and other parties sought the preservation of the status quo to enable the parties to engage in consultation both with the assistance of an outside the Commission about the contents of a policy to replace the Policy Directive. That consultation has occurred and has been exhausted; 4. ASMOF's case on the construction of cl 24 in support of the preservation of a dedicated office does not enjoy significant prospects of success; 5. the Commission's approach to the invocation of status quo provisions has been in line with the purpose of ensuring that it is done consistently with the purpose of the dispute settlement procedure and not allow delay of management initiative. If the status quo required that the Ministry reinstate the Policy Directive and prevented it from promulgating the proposed Workspace Accommodation Policy, there will be significant practical difficulties and costs associated with delay in the construction of new capital projects in the NSW Health system; 6. the practical effect of restoring the Policy Directive is that the Ministry and Health Infrastructure will be operating in breach of NSW Government Policy; and 7. the "balance of convenience" heavily weighs in favour of the Commission not granting any relief to preserve the status quo.

Consideration

1. It will be apparent that the determination of the issue currently before the Commission turns on the proper construction of cl 3 of the Award.
2. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act.
3. The language of s 175 makes it clear that powers of the Commission under the section do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57] - [58].
4. In the recent decision of New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 ("Western NSW LHD Appeal") the Full Bench restated the principles of award interpretation as follows: "21. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 22. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.' 23. These principles have subsequently been cited with approval by the Full Bench in 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 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038. 24. For completeness, we affirm these principles and apply them to the construction of the Status Quo Provision the subject of this appeal."
5. As will be seen, neither of the competing constructions of cl 3 pressed by the parties is without some difficulty. Each requires some compromises to be made to the language adopted in the clause. Consistent with the principles outlined above, it will be necessary to ascertain what purpose the framers of the Award intended cl 3 to have.

Does the status quo provision apply to the present case?

1. The approach taken by the Ministry to the construction of cl 3 relied substantially on the contention that the clause establishes a mandatory and inflexible issue resolution procedure. This contention underpinned the Ministry's arguments that cl 3 had not been invoked, or properly invoked, by ASMOF; that ASMOF was otherwise unable to avail itself of the "benefits" of the clause as a result of not complying with the procedures and requirements set out in it; and, that the dispute between the parties is not an "issue" for the purposes of cl 3.
2. The Ministry highlighted the use of the imperative "must" in cll 3(d) and 3(e), which it said creates mandatory steps to be followed in the issue resolution process. That is, cl 3(d) mandates as a first step in that process that any issue be discussed by the staff specialist with his or her immediate supervisor. If the issue is not resolved in "a reasonable time", cl 3(e) mandates that the issue be referred by the supervisor to the relevant Chief Executive (or equivalent).
3. The Ministry submitted, in effect, that from combining these provisions with cl 3(b) it can be inferred that an "issue" for the purposes of cl 3 must concern a question, issue, grievance, dispute or difficulty which has arisen about the interpretation, application or operation of the Award involving an individual staff specialist which is capable of being resolved within a reasonable time in discussion at a local level between the staff specialist and his or her immediate supervisor. The Ministry contended that the dispute between the parties in these proceedings is not such an "issue", and as a consequence cl 3 has no application in the present case.
4. The Award defines "issue" in cl 3(b). Significantly, it refers to any question, issue, grievance, dispute or difficulty which might arise "between the parties". It is not in dispute that ASMOF is a party to the Award. Nothing in the definition in cl 3(b) confines an issue to being one arising between the Ministry and an individual staff specialist. On its terms, the definition applies to the substantive dispute between the parties in these proceedings.
5. Further, cl 3(a) opens by referring to "All parties…" and goes on to outline the obligations on them. This includes an obligation to "abide by the procedures set out in this clause".
6. Significantly, cl 3(a)(i) makes reference to "grievances and disputes arising between the parties or between the Employer and individual Staff Specialists". This language, noting the use of the disjunctive "or", is clearly inconsistent with an intention that the clause be limited to individual, local grievances or disputes only.
7. While Mr Seck drew attention to the fact that the obligation imposed on the parties by cl 3(a)(i) was antecedent to any dispute arising, I would have difficulty accepting an argument that the clause would impose an obligation on ASMOF to use its best endeavours to cooperate with the Ministry to avoid grievances and disputes arising, but would otherwise provide no means by which ASMOF could attempt to resolve any grievances or disputes that could not be so avoided, if they went beyond local, individual concerns.
8. ASMOF submitted that the interpretation advanced by the Ministry would be unworkable. That is, neither an individual staff specialist nor ASMOF might know at the outset whether a dispute was capable of resolution at a local level, such that the issue resolution process would apply. It might be impossible to know whether cl 3 was capable of being invoked or not. There is some merit to this submission.
9. The Ministry relied on the fact that parties are able to refer disputes to the Commission under s 130 of the Act, irrespective of the terms of any applicable disputes resolution procedure. It submitted that the availability of s 130 supported a narrow construction of cl 3. If a dispute arose between the parties, or between the Ministry and its employees, which was not a local, individual one, ASMOF or the employees could invoke s 130 of the Act to seek the Commission's assistance to resolve that dispute. In that sense, Mr Seck submitted that s 130 operated as a separate and distinct "stream" of issue resolution to that contained in cl 3.
10. On this basis, the Ministry contended that the current proceedings had been invoked by ASMOF under s 130. Nothing in the notification makes reference to cl 3 of the Award. It followed that cl 3 had not been invoked and so the status quo obligations under cl 3(h) are not enlivened.
11. It is necessary to consider the broader legislative context in which cl 3 of the Award appears. The Award was made by the Commission under s 10 of the Act. In exercising its jurisdiction the Commission is bound to have regard to the objects set out in s 3 of the Act. That section provides as follows: 3 Objects The objects of this Act are as follows: (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.
12. I fail to see how the approach to the construction of cl 3 of the Award pressed by the Ministry would achieve the objects of the Act, and in particular those set out in ss 3(d) and 3(g).
13. Further, s 14 of the Act provides that an award is not to be made unless it "contains procedures for the resolution of industrial disputes". The Dictionary to the Act defines "industrial disputes" as being a dispute, including a question or difficulty, about an "industrial matter". In turn, "industrial matter" is defined in s 6 of the Act in these terms: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace, (k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades.
14. The language of the Act does not necessarily preclude a dispute resolution procedure being confined to individual issues capable of resolution at a local level. However, such a narrow scope sits uncomfortably with the broader scope of industrial disputes that the Act anticipates will be capable of resolution under a dispute resolution clause.
15. In relation to the proper approach to be taken to the purportedly mandatory dispute process in cl 3 of the Award, I was referred by ASMOF to Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245. That case concerned, inter alia, the operation of a dispute resolution provision in an enterprise agreement made under the Fair Work Act 2009 (Cth). The provision was relevantly in these terms: 28 Dispute Resolution Process The DRP process is to be used to assist in resolving any matter or dispute pertaining to the employment relationship. For matters that are in dispute, that go to the application or interpretation of this Agreement or with matters arising under the National Employment Standards (NES), this clause facilitates access to the Fair Work Commission for conciliation and, if necessary, arbitration ('category 1 matters'). For all other matters pertaining to the employment relationship that do not go to the application or interpretation of the Agreement or are not matters arising under the NES ('category 2 matters'), the steps set out below shall apply, except that the Fair Work Commission shall only be empowered to exercise conciliation powers. 28.1 Initial Process (a) In the event of any dispute arising the following procedure will apply. STEP 1 The matter will, in the first instance, be discussed between the employee(s), and the Team Leader involved. If the matter remains unresolved it shall be elevated to STEP 2 as soon as practicable; STEP 2 The matter may be referred in writing, by the employee(s) to the relevant Line Manager. The Line Manager will provide a written response to the issue within three working days. If the matter remains unresolved; STEP 3 It will be referred for discussion between the appropriate Union Official or other employee representative and the Executive Manager Yallourn, or their nominated delegate. The Executive Manager Yallourn will provide a response to the issue as soon as practicable. If the matter remains unresolved; STEP 4 It may be referred to the Fair Work Commission (FWC) for conciliation or arbitration (for 'category 1 matters') or conciliation only (for 'category 2 matters'). Employees may bring a support person or the appropriate union representative to any meeting held under this clause with the Parties being able to elect to bring representatives of their own choosing to any matter referred to conciliation or arbitration. (b) The dispute may be referred to FWC at any stage by agreement of the parties in the interest of speedy resolution of the dispute. …
16. In that case, Energy Australia had challenged the jurisdiction of the Fair Work Commission to make a determination under the dispute resolution provision, in circumstances where the dispute was between Energy Australia and one of the unions a party to the enterprise agreement, and not between Energy Australia and one or more of its existing employees. In rejecting this contention Bromberg J stated as follows: "78. It is important to bear in mind the ultimate purpose of dispute resolution clauses found in enterprise agreements. From the perspective of the FW Act, that purpose reflects the object set out in s 3(e) of 'providing accessible and effective procedures to resolve grievances and disputes'. The intent of the framers of cl 28 should be construed in that context and with an appreciation that industrial harmony is of value to industrial parties and that dispute resolution processes provide a means of restoring and maintaining industrial harmony by resolving disputation. The framers of cl 28 would have also appreciated that, like all disputes, industrial disputes are more effectively resolved when all persons concerned in the outcome are included in the resolution process. To my mind, cl 28 should be construed in keeping with those understandings and, consistently with what Kirby J said in Amcor, the objective of achieving 'a sensible industrial outcome' should be attributed to the framers of cl 28. It must also be appreciated, consistently with the observations in Kucks, that it should not be assumed that the framers of cl 28 were skilled in legal drafting. … 83. Clause 28.1 provides for a four step process through which if the dispute remains unresolved following a step it is progressed to the next step in the hierarchy. Step 1 commences with a shop floor discussion between employees and their 'Team Leader'. Step 4 ends with a referral to the FWC. Energy Australia submitted that 'read literally' the four steps are preconditions 'that can only be satisfied between [Energy Australia] and a particular employee or employees'. It is that feature of cl 28, that the process commences with direct discussion between Energy Australia and its employee or employees, together with the fact that a dispute must 'pertain to the employment relationship', that Energy Australia relied upon to support its construction that only a dispute between it and an identified existing employee or employees may engage the processes made available by cl 28. The construction contended for addressed access to the clause and not merely access to arbitration under the clause. If correct, it would necessarily apply to all of the processes contemplated by cl 28, including the discussions and the conciliation before the FWC which the clause otherwise provides for. Energy Australia's construction must be tested by reference to its broad application. 84. To my mind, that construction misconceives the purpose of the text which describes steps 1 and 2 in cl 28.1(a). I accept that, because of the subject matter restriction that the dispute pertain to the employment relationship, a dispute capable of being addressed by the cl 28 processes must raise or involve an interest of an employee or employees of Energy Australia which arises out of employment with Energy Australia. However, reading the clause as a whole, bearing in mind its imputed purpose of facilitating the restoration and maintenance of industrial harmony, I do not read the description of steps 1 and 2 in cl 28.1(a) as intending to lay down mandatory limitations on access to the processes of discussions, conciliation or arbitration that cl 28 facilitates. 85. Why, in the face of the broad facilitative purpose of cl 28, such limitations might have been intended is not apparent. I appreciate that, as a practical matter in some circumstances, the ascertainment of the nature of a dispute may require the identification of an aggrieved employee. But that practical consideration, which is likely to have no application in an enterprise-wide dispute as to the application or interpretation of the EA (as this case demonstrates), does not support the much wider proposition that it was intended that, as a jurisdictional precondition of general application, an employee must be involved and identified as a disputant party. That is particularly so given that there are practical considerations which tend in the opposite direction. It may be expected, particularly in disputes involving many employees, that a single employee will be reluctant to be singled out and identified as the lead disputant. The anonymity which employees may desire and which may be provided by their representation through a union ought not be regarded as inimical to the objectives of cl 28. To the contrary, anonymity tends to facilitate the airing of employee grievances and thus enhances the opportunity of those grievances being resolved in line with the purpose of cl 28. 86. Steps 1 and 2 of the cl 28.1 process are directed at disputes that arise at the workplace of the kind that a 'Team Leader' would have the authority to resolve. Those steps would have no utility in relation to an enterprise-wide dispute about the application and interpretation of the EA the resolution of which would require the approval of senior management of Energy Australia. Steps 1 and 2 have a limited purpose of providing for a particular procedure. In my view, they are not intended to spell out general limitations upon access to the clause and make no significant contribution to an understanding of what, if any, limitations were intended. 87. That construction is consistent with the approach actually taken by Energy Australia to the dispute about the interpretation of cl 5.3. The dispute was first raised in the circumstances contemplated by step 3 of cl 28.1. When raised with senior management, it was raised by a union and not by an individual employee. That all occurred without objection and without any suggestion that the validity of the process embarked upon depended on the dispute being raised by an employee in accordance with step 1. Indeed, Energy Australia did not here contend that cl 28 was not validly engaged because steps 1 and 2 were not followed. That may be because it is only in relation to "category 2 matters" and not "category 1 matters" that cl 28 expressly requires (at 28.1(d)) steps 1 and 2 to be followed before the dispute may be taken to the FWC. 88. The actual approach taken to the engagement of cl 28 in relation to the dispute over the meaning of cl 5.3 by Energy Australia, the AMWU, CEPU and CFMEU was understandable. To have commenced the process at step 1 would have been an illogical waste of time. To my mind, what here occurred reflects what the framers of cl 28 must have intended."
17. On appeal, the Full Court in Energy Australia Yallourn Pty Ltd v Australian Manufacturing Workers' Union (2018) 281 IR 319, [2018] FCAFC 146 found no error in Bromberg J's approach, at [30] - [32] (Rares and Barker JJ).
18. Mr Seck submitted that the two Energy Australia decisions could be distinguished having regard to the differences between the legislative scheme established under the Fair Work Act as opposed to that under the Act, and in the language used in the dispute resolution clause in that case (in particular cl 28.1(b) of the enterprise agreement). Even taking those differences into account I am of the view that the observations of Bromberg J reproduced above provide some guidance as to how cl 3 of the Award should be approached.
19. That approach largely necessitates the issue resolution process applying commensurate with the nature of the issue at hand. To put it in broad terms, the clause promotes an issue being resolved as close to its source as possible, with avenues for escalation if a resolution is unable to be reached. The process set out in the clause is capable of being applied at the relevant level depending on the nature of the dispute. To adopt the language of Bromberg J, the terms of cll 3(d) and 3(e) should not be construed as "spell[ing] out general limitations on access to the clause".
20. Such an approach to cl 3 addresses the submissions made by Mr Seck stemming from the fact that under cl 3(g) the parties may agree to refer the issue to the Health Secretary, rather than the Commission. Mr Seck submitted that as the Health Secretary may exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service (Health Services Act 1997 (NSW) s 116(3)), he was for all intents and purposes "the employer". That the employer could resolve a matter was consistent with the narrower construction of the term "issue" for which the Ministry contended.
21. On its terms, cl 3(g) provides a party with a choice between three options: to refer the issue to the Health Secretary, to refer the matter to the Commission in accordance with the Act, or to do neither. In the same way that the nature of the issue will determine the elements of the procedure in cl 3 to be followed, it seems apparent that the choice made under cl 3(g) will be affected by the nature of the issue. In some cases the Health Secretary may well be the appropriate person to whom an issue should be referred for resolution. The fact that such an eventuality is allowed for does not necessarily mean that all issues must necessarily be capable of, or suitable for, referral to and resolution by the Health Secretary.
22. I also consider that the approach to the clause pressed by the Ministry, and particularly the submissions summarised at [30] above, largely requires the Commission to consider these proceedings as an entirely standalone or discrete "issue", without regard to the broader factual context in which the dispute arose. In his affidavit Mr Holland stated as follows: "6. ASMOF lodged this dispute in response to the Respondents' decision to unilaterally rescind the NSW Health Office Accommodation Policy - Public Health Organisations and Ambulance Service Policy Directive PD2005_576 ('the Policy Directive'). 7. The Respondent notified ASMOF of [its] decision to rescind the Policy Directive on 10 April 2018 whilst ASMOF was in dispute with the Western Sydney Local Health District ('WSLHD') regarding office accommodation as part of the Westmead Hospital redevelopment. 8. Two days later, on 12 April 2018, ASMOF replied to the Respondent's letter which stated that clause 3(h) of the Award requires the Respondent to observe the status quo and to not rescind the Policy Directive until proper consultation had been undertaken and an agreed alternative policy directive was in place. 9. The Respondent did not respond to ASMOF's letter of 12 April 2018. 10. On 27 April 2018, ASMOF formally discontinued matter number 2018/0043747 partly due to the rescission of the Policy Directive. As the Policy Directive applied to all Staff Specialists and Clinical Academics employed by NSW Health, the issue of office accommodation was now no longer isolated to the dispute with WSLHD. 11. In early May 2018 ASMOF contacted Unions NSW and the other interested parties to this matter as the decision to unilaterally rescind the Policy Directive would affect all NSW Health employees. 12. On 9 May 2018, ASMOF attended a meeting at Unions NSW together with the Health Services Union and the NSW Nurses and Midwives Association. All unions agreed that Unions NSW would write to the Respondent in response to the rescission of the Policy Directive. 13. On 15 May 2018, Unions NSW wrote to the Respondent expressing concern in respect to the unilateral rescission of the Policy Directive whilst also requesting that a process of consultation regarding the replacement policy be implemented and that the status quo remain until an agreed alternative policy is developed through that consultation process. 14. The Respondent did not respond to Unions NSW letter of 15 May 2018. 15. On 18 June 2018, ASMOF lodged the current dispute against the Respondent on behalf of [its] members. 16. The decision to lodge the current dispute against the Respondent as a collective issue is because the Policy Directive applies to all Staff Specialists and Clinical Academics employed by NSW Health."
23. I observe parenthetically that the matter referred to at [10] of Mr Holland's affidavit involved proceedings in this Commission, in respect of the dispute referred to at [7] of the affidavit.
24. Attached to Mr Holland's affidavit was a table which was said to summarise the disputes in which ASMOF had been involved regarding office accommodation for staff specialists. The table made reference to disputes at 16 facilities, although it is noted that only in respect of four of those facilities did the dispute arise prior to the commencement of these proceedings. That said, the evidence clearly discloses that the substantive issue in dispute in these proceedings has both a widespread relevance to the parties and has been the subject of extensive consultation at a number of levels and in a variety of locations across NSW Health.
25. Further in this regard, I observe that on 12 April 2018 ASMOF wrote to the Ministry. Its letter included the following: "Any variation to the existing policy determination has the potential to affect the rights under clause 24, Office, Secretarial and Administrative Support of the Staff Specialists' (State) Award. … Consistent with cl 3(h), Issues Resolution of the Staff Specialists' (State) Award, ASMOF requires the Ministry to observe the status quo and not to rescind PD2005_576 or any existing practice relating to the provision of Office Accommodation to Staff Specialists until proper and comprehensive consultation between the parties has taken place, and an agreed alternative [Policy] Determination relating to Office Accommodation has been developed using the accepted consultation process."
26. On 15 May 2018 Unions NSW wrote to the Ministry. Its letter included the following: "I am writing regarding the dispute between the Australian Salaried Medical Officers Federation (ASMOF) and NSW Ministry of Health regarding the provision of office accommodation to Staff Specialist Medical Practitioners as required by the Staff Specialists (State) Award. … … As already advised by ASMOF, the unilateral rescission of the Policy Directive has the potential to affect the rights under Clause 24 of the Award regarding Office, Secretarial and Administrative Support. Furthermore, the Ministry has an obligation pursuant to clause 3(h) of the Award to observe the status quo and not rescind the Policy Directive or any existing practice relating to the provision of office accommodation to Staff Specialists until proper consultation between the parties has taken place."
27. In the letters of 12 April 2018 and 15 May 2018 ASMOF and Unions NSW respectively invoked the Award, and in particular cl 3(h). It is artificial for the Ministry to ignore this broader factual context and focus only on the terms of the notification in the present matter to submit that ASMOF relied only on s 130 of the Act in commencing these proceedings.
28. I note also that on 11 July 2018 the Ministry responded to the letter from Unions NSW. While the letter set out "factors" which it asserted "prevent[ed] the Ministry from agreeing to the representations that the previous policy should apply as the 'status quo'," the Ministry did not assert that cl 3 of the Award had not been invoked. It was certainly not suggested that the issue was not one capable of being caught by and dealt with in accordance with cl 3.
29. As already stated, the procedures outlined in cl 3 will apply as appropriate to the nature of the issue. In a case such as this it would be "an illogical waste of time" to expect, much less insist upon, the steps in cll 3(d) and 3(e) to have been taken. It is more consistent with the clause as a whole that proper efforts were made to resolve the issue between the parties before it was escalated to the Commission. The evidence outlined above suggests that in the broader factual context of the dispute those efforts were made.
30. I comment in passing that I do not regard cl 3(h) of the Award as conferring a "benefit", which can be gained or lost depending on a party's conduct. The clause imposes an obligation on the parties, which will bind them until the issue is resolved in accordance with the clause.
31. During the hearing Mr Gibian made the following submissions (Tcpt pp 9 (49) - 10 (36)): "Secondly, such a narrow reading of the clause would be entirely contrary to its purpose, that is, namely, to enable the fair and orderly resolution of disputes and to preserve, so far as is possible, industrial harmony and avoid disputation. If the respondent is correct, somewhat surprisingly, the outcome would be that there would be no dispute resolution provision in the award to deal with disputes unless they are, by what mechanism one would decide this I'm not sure, but unless it was dispute capable of resolution at a local level by means of discussions with an immediate supervisor. It would mean that if there is a Statewide issue or, say, an issue as to the interpretation of the award applying across all the workplaces in the State, that the award would simply contain no dispute resolution provision to address that type of dispute at all, and that would be entirely contrary to the obvious purposes of the provision of enabling the or maintaining industrial harmony to this and possibly enabling the sensible resolution of disputes. … In addition, if that were right then it's not only the status quo provision which wouldn't apply to such a dispute. It would also be the industrial action aspect of it and there would be, if that's correct, no constraint on work stoppages or the like in that context of a broad dispute, which is, again, inconsistent with the purposes of a dispute clause of this nature."
32. Mr Gibian further submitted that a consequence of the construction pressed by the Ministry is that a party could avoid its obligations under cl 3(h) by simply not following a step in the procedures outlined in the clause.
33. I accept those submissions.
34. In conclusion, I am presented with alternative constructions of cl 3. The one pressed by the Ministry requires a strict and literal approach, which appears to be at odds with the language cll 3(a) and 3(b) and does not sit comfortably either with the usual purpose of dispute resolution provisions or the broader legislative scheme created by the Act. ASMOF's position requires the clause to be read other than strictly in accordance with its terms, and in particular by not giving determinative force to the use of the word "must" in cll 3(d) and 3(e).
35. Overall, and on balance, having regard to the totality of the language in cl 3 of the Award, and the regulatory context in which the Award has been made, I am not satisfied that the strict, literal and legalistic construction of the clause advanced by the Ministry would give effect to the meaning intended by the framers of the Award.
36. It follows that I find: 1. that the process outlined in cll 3(d) and 3(e) should not be construed as limiting ASMOF's ability to use the clause to seek to resolve issues, as that term is defined in cl 3(b), that may arise from time to time; and 2. that an "issue" for the purposes of cl 3 should not be read as being confined to a question, issue, grievance, dispute or difficulty which has arisen about the interpretation, application or operation of the Award involving an individual staff specialist which is capable of being resolved within a reasonable time in discussion at a local level between the staff specialist and his or her immediate supervisor.
37. Consistent with those findings, and with the factual background to this dispute as outlined above, I do not accept the Ministry's submissions that cl 3 was not invoked, or properly invoked, by ASMOF.

Is the Policy Directive a "work procedure and practice in place"?

1. The Ministry next contended that, even if cl 3 was found to apply, the Policy Directive was not a "work procedure and practice in place", within the meaning of cl 3(h).
2. The Policy Directive contains the following statements: "This document is a compliance support policy and is required to be complied with by public health organisations and the Ambulance Service of NSW. This policy has been developed with input from Area Health Services and Branches from within the Department. It is consistent with the NSW Office Accommodation Workspace Guidelines and the standard components of the NSW Health Facility Guidelines. … Please ensure that all facilities within your administration currently in the planning and design phases of capital projects comply with this policy. … New of refurbished office accommodation in health care facilities are to be designed in accordance with this policy, and read in conjunction with the NSW Government Office Accommodation [Workspace] Guidelines." (Emphasis in original)
3. The requirement that staff specialists receive a 9m² office appears under the heading "Required Workspaces".
4. The Ministry's written submissions included the following: "25. On its proper construction, the status quo provision is directed to the physical aspect of doing the work and not the environment in which an employee performs such work. At first instance in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2018] NSWIRComm 1079 at [68]-[73], Commissioner Constant adopted the definition of 'work' adopted in construing a similar status quo obligation in Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2012] FWA 2045; that is, work means 'the activity of employees involving mental or physical effort, their job, duty, task or undertaking'. The Full Bench found no error in this approach (at [30])."
5. Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2012] FWA 2045 ("Linfox") concerned quite a different status quo provision to that appearing in cl 3(h) of the Award. The relevant clause in Linfox read: "Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo."
6. In construing that clause Harrison SDP in Linfox held as follows: "[27] I turn to a consideration of the opening words of clause 22. I first note the scope of the matters covered by the settlement of disputes procedure. It describes a very broad scope of disputes or grievances which can be dealt with. It covers 'any dispute or grievance that arises at the workplace between an employee and Linfox about the Agreement or the employment relationship ...'. It is against that broad scope of disputes or grievances that agreement has been reached that it is only 'work' which will continue in accordance with the status quo. The reference only to 'work' is significant. The clause does not provide that everything that existed prior to the dispute arising is to remain in place. The clause does not read, for example, 'until the matter is resolved by agreement, conciliation or arbitration, the status quo shall remain'. [28] I am persuaded that the better construction to place on 'work' in clause 22.3 is that it means the activity of employees involving mental or physical effort, their job, duty, task or undertaking. In this context it is used as part of the expression 'work will continue', that is work is to be something that is capable of continuing. It is something which is to be carried on and not stop."
7. It is apparent that the meaning which her Honour ascribed to "work" was dictated largely by the context in which it was used in the enterprise agreement before her. Clause 3(h) of the Award is in fundamentally different terms.
8. In New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2018] NSWIRComm 1079 ("Western NSW Local Health District"), Constant C considered a status quo provision that was in substantively the same terms, albeit in a different format, as cl 3(h) of the Award. In the context of finding that a Managing Misconduct Policy Directive was a "work procedure and procedure and practice in place" the Commissioner had regard to the meaning given to "work" in Linfox. However, I do not consider that she adopted that definition, or that Western NSW Local Health District stands as authority for the proposition that in the context of clauses such as cl 3(h) "work" is always and only to be given that definition.
9. Rather, the Commissioner held as follows: "82. I consider this to be a reasonable and practical construction of the clause in context. This construction deals with the mischief sought to be remedied; that is, the intention of the clause is to prevent an employer moving to a new practice (habitual or customary performance) or procedure (the act or manner of proceeding in any action or process; conduct) while the dispute resolution process is underway, provided that the relevant practices or procedures are safe. This construction is not at odds with a beneficial or generous construction, and is a desirable policy. 83. In agreeing with the respondent's construction set out at paragraph [72] above, it should not be inferred that I agree that the examples provided by the respondent being 'a change in shift time where the parties are in dispute as to the change in that work practice or procedure or a restructure where the parties as to redundancies arising from the restructure' necessarily restrict or limit the work practices or procedures which may be subject to the status quo requirement. Whether a matter or issue which is subject to dispute is a work procedure or practice and thus subject to the status quo requirement will be a matter of a factual determination. … 86. Looking to the mischief that is sought to be remedied by the Status Quo Provision, and the context and placement of the Status Quo provision directly under sub-clause 48(vi) which requires the continuation of work I consider that the Status Quo Provision is directed at ensuring that the manner in which work is performed continues unchanged during the relevant period." (Emphasis added)
10. The Commissioner's approach was upheld on appeal in Western NSW LHD Appeal. In that case the Full Bench stated as follows: "29. In interpreting the Status Quo Provision, consideration must be given to the ordinary and grammatical meaning of the words that make up that provision. This is the starting point. 29. The words 'work', 'procedures' and 'practices' within the context of the Status Quo Provision were considered by the Commission at first instance with reference to the Macquarie Dictionary Online (seventh edition, 2018). The Commission found that the word 'work' was an adjective to modify the nouns procedures and practices. In turn, the Commission found that 'practice' means 'habitual or customary performance' and 'procedure' means 'the act or manner of proceeding in any action or process; conduct.' The Commissioner continued, finding that this was a reasonable and practical construction of the subclause in context and not at odds with the beneficial or generous construction, and is a desirable policy: see paragraphs [73]-[82]. We can see no error in this approach and the conclusions reached by the Commissioner with respect to the meaning of the words 'work procedures and practices' in the Status Quo Provision. … 33. To understand the Status Quo Provision one may ask how work was done prior to the notification of the dispute or prior to any change of work procedure or practice that is the subject of the dispute. 34. In this case, that question is directed to establishing the relevant work procedure or practice relating to the conduct of investigations into employee behaviour or performance. The first dispute notification referred to the Respondent's 'Policy Directive'. There is no suggestion that there was a change of the Policy Directive and therefore no issue arises under clause 48 (vii)(b). Rather, the Appellant suggested that the Respondent had not followed the Policy Directive by failing to supply a copy of the investigation report. 35. We may conclude therefore that the Status Quo Provision requires work, and more broadly the employment relationship, to continue in accordance with the Policy Directive (which represents the established work practice in this case)." (Emphasis added)
11. It does not follow from this authority that "work procedures and practices" must be confined to the physical aspect of doing the work and not the environment in which an employee performs such work. It must be remembered that the substantive dispute between the parties in this case involves the question of whether cl 24 of the Award confers on employees an entitlement to work from an office. Since 2005 the Policy Directive not only mandated the provision of an office for staff specialists, but also the dimensions of that office.
12. It is relevant to observe that the Policy Directive set out "policy principles" which were said to "underpin the provision of office accommodation in health care facilities". One of these principles was that offices "should only be provided on a demonstrated needs basis". That staff specialists were required under the Policy Directive to be provided with offices suggests that their duties made that necessary.
13. In this context, the provision of an office informs the "manner in which work is performed" (to use the language from Western NSW Local Health District) and may be said to relate "more broadly [to] the employment relationship" (to use the language from Western NSW LHD Appeal).
14. In this sense, the matters at issue in the present case are in a different category to the facts in Western NSW Local Health District and Western NSW LHD Appeal. As this case concerns an alleged Award entitlement, it is not an instance of a status quo provision being used, as the Full Bench noted in Western NSW LHD Appeal at [47], to "effectively stop the other from doing what they would otherwise be legally and contractually entitled to do". Whether the Ministry was legally and contractually entitled to rescind the Policy Directive and replace it with the Workspace Accommodation Policy is very much a live issue.
15. The Ministry next drew my attention to the definition of "practice" in cl 2 of the Award, which is in these terms: "Practice" means clinical, administrative, teaching, research, quality improvement or other duties and responsibilities undertaken by the Staff Specialist.
16. This definition was said to support the contention that "work" should properly be confined to the physical aspect of doing the work. A reading of the Award as a whole, however, makes it clear that the word "practice" in cl 3 is not intended to be read in the way it is defined in cl 2. That definition clearly relates to the clinical and associated work performed by staff specialists and, unsurprisingly, there are numerous provisions in the Award where that work is regulated to one degree or another. A proper reading of cl 3 suggests that the use of the word "practice" in that context is intended to have the meaning given to it in Western NSW Local Health District.
17. The Ministry next submitted that no consistent practice exists throughout the NSW health system regarding office accommodation, so that there is no established procedures and practices "in place". In her statement Ms Collins stated: "6. I have been provided with the responses from a number of Local Health Districts and Networks which indicate that while there are many instances of staff specialists having dedicated offices there are also instances where the allocation, type and size of office space for staff specialists varies across NSW Health."
18. Ms Collins went on in her statement to produce a table which, it must be presumed, summarised the responses to which she referred. That evidence does not, to my mind, allow a determination to be made as to the extent to which there has, or has not, been compliance with the Policy Directive. That said, such a determination may not be necessary.
19. As Mr Gibian submitted, the Commission in Western NSW Local Health District defined "practice" as meaning "habitual or customary [manner of] performance". This is not the same thing as requiring an invariable manner of performance.
20. Further, the Policy Directive was written in mandatory terms. I do not consider that the Ministry can rely on what appears to be non-compliance with the Policy Directive to argue that the Policy Directive was not, as a result, a procedure or practice "in place" at the relevant time.
21. The next argument raised by the Ministry was that once the Policy Directive ceased to be consistent with NSW government policy, it ceased to operate and had to be replaced. I do not accept this argument.
22. There is nothing in the Policy Directive which stated that it derived its force or existence from any other NSW government policy. At most, it was stated to have been developed so as to be consistent with the "NSW Office Accommodation Workspace Guidelines". It does not necessarily follow that a change in government policy precluded the Policy Directive from continuing to apply, particularly if this was (as contended by ASMOF) in compliance with the Ministry's Award obligations.
23. Having regard to the particular circumstances of this case, I am satisfied that "work" can and does encompass the offices in which staff specialists perform their duties. Consistent with the approach taken in Western NSW Local Health District and in Western NSW LHD Appeal, I regard the Policy Directive as a work practice (habitual or customary performance) or work procedure (the act or manner of proceeding in any action or process; conduct), which was in place immediately before the issue arose.
24. In light of these findings and those at [56] and [57] above, I find further that the Policy Directive represents the "status quo" for the purposes of cl 3(h) of the Award.

Discretion to refuse relief

1. At [16] above I summarised the Ministry's submissions, in the alternative, that if the Commission determines that the status quo obligation applies to the present case the Commission could, as a matter of discretion, refuse to exercise its discretion to grant any relief set out in s 136 of the Act.
2. The statements of David Ballantyne and Bruno Zinghini were directed to the risks, inconvenience and costs that were said might (but, it must be said, not necessarily would) flow from a finding that the Policy Directive should continue to apply and that staff specialists be allocated a 9m² office.
3. Mr Seck likened the situation to a court granting an injunction, in which it was necessary to look at the balance of convenience in determining whether to order the remedy. He noted that there was no facility in proceedings such as the present ones for the Ministry to obtain an undertaking as to damages, such as might be required from a party seeking an injunction.
4. It is enough to dispose of the Ministry's submissions on the question of discretion by making four points.
5. Firstly, the Award is binding on the parties by force of s 12 of the Act. It cannot realistically be suggested that being aware of the possibility of a party acting, or purporting to act, in breach of an award the Commission would, as a matter of "discretion", sit idly by.
6. Secondly, all obligations which arise, including those under cl 3(h), are extant, as is any risk, cost or inconvenience to either party which flows from those obligations. This decision does not create new obligations, or any new risks, costs or inconveniences.
7. Thirdly, and on a related point, as Mr Gibian pointed out an injunction creates a new legal relationship between the parties. In that context, undertakings as to damages and the balance of convenience ought properly to be considered. By contrast, in the present case we are dealing with an existing legal relationship between the parties.
8. Fourthly, the Ministry submits that no order should be made to preserve the status quo, so as to maintain the operation of the Policy Directive, as that would mean that the Ministry and Health Infrastructure would be operating in breach of NSW Government Policy. If this submission is taken to its logical extent, through a change in policy the Government could effect changes to, or indeed avoid its award obligations. That proposition cannot be accepted.
9. For these reasons I do not accept the Ministry's submissions that as a matter of discretion the Commission should decline to exercise its powers under s 136 of the Act.
10. To the extent that the Ministry contends that it will be prejudiced by the application of the status quo obligation in cl 3(h) of the Award, I observe that it has always had the option of applying for a variation to the Award under s 17 of the Act. Equally, any such prejudice might perhaps be ameliorated, if not avoided, through the timely disposition of the substantive dispute between the parties. The Commission is committed to doing its utmost to assist the parties in that respect.

Findings and recommendation

1. I find that: 1. the parties are bound to comply with cl 3(h) of the Staff Specialists (State) Award; and 2. the "status quo" for the purposes of cl 3(h) of the Staff Specialists (State) Award includes the policy directive titled "Office Accommodation Policy - Public Health Organisations and Ambulance Service", document number PD2005_576.
2. I recommend that the Ministry of Health continue to apply the policy directive titled "Office Accommodation Policy - Public Health Organisations and Ambulance Service", document number PD2005_576, with respect to staff specialists covered by the Staff Specialists (State) Award pending the resolution or determination of the substantive dispute before the Commission in these proceedings. Damian Sloan 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: 24 June 2019