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

Industrial Relations Commission (NSW)|2019-07-24

M Seck (Respondent) File Number(s): 2018/189192

Judgment

The background to this matter, and the issues which arise, were summarised in my earlier decision in these proceedings in Australian Salaried Medical Officers Federation (NSW) v Ministry of Health [2019] NSWIRComm 1041. It is convenient to reproduce that summary, as follows: "1. In these proceedings the Australian Salaried Medical Officers Federation (NSW) ('ASMOF') represents staff specialists employed by the New South Wales Ministry of Health ('Ministry'). A dispute has arisen between ASMOF and the Ministry as to whether the staff specialists have an entitlement under the Staff Specialists (State) Award 2018 ('Award') to be provided with an office for the performance of their work. 2. For present purposes the nature of the dispute between the parties can be stated briefly. 3. Clause 24 of the Award is in these terms: '24. Office, Secretarial and Administrative Support Staff Specialists will have access to such office, secretarial and administrative support as may be reasonably necessary to undertake the requirements of the position.' 4. Historically, the Ministry had, when designing office accommodation in healthcare facilities, applied a policy directive titled 'Office Accommodation Policy - Public Health Organisations and Ambulance Service', which had an internal document number of PD2005_576 ('Policy Directive'). The copy of the Policy Directive in evidence has a publication date of 26 April 2005. The Policy Directive provided that the 'required workspace' for staff specialists was an office with dimensions of 9m². 5. On 10 April 2018 the Ministry purported to rescind the Policy Directive. It intends to replace it with a document titled 'Workspace Accommodation Policy' which the Ministry has been developing, in consultation with ASMOF and others, since mid-2018. The Workspace Accommodation Policy is said to 'respond to and be complementary to' the NSW Government Fitout Design Principles (Office Workplace Accommodation) ('Fitout Design Principles'). 6. The Fitout Design Principles promote 'agile' workspaces. Enclosed offices are, at the least, discouraged. In what is said to be consistency with the Fitout Design Principles, the Workspace Accommodation Policy seems only to concede that 'the inclusion [in workspaces] of enclosed spaces for high focus work is acceptable'. It is apparently not the case that staff specialists in workspaces to which the Workspace Accommodation Policy applies will in all instances be entitled to an office. 7. Put in broad terms, the substantive dispute between the parties is whether the Workspace Accommodation Policy is compliant with what ASMOF contends is the purpose and effect of cl 24 of the Award. The issue which will ultimately require determination is whether cl 24 confers an entitlement on staff specialists to be provided with an office (and, possibly, the dimensions of that office)."

Procedural matters

The hearing took place on 22, 23 and 24 July 2019. Mr Mark Gibian SC of counsel appeared on behalf of ASMOF. The Ministry was represented by Mr Michael Seck of counsel.
ASMOF read the following: 1. two affidavits of Professor Christopher Liddle, sworn on 2 May 2019 and 12 July 2019 respectively. Professor Liddle is the Head of Clinical Pharmacology and Toxicology at Westmead Hospital; 2. an affidavit of James Mallows, Emergency Physician Staff Specialist at Nepean Hospital, sworn on 16 July 2019; 3. two affidavits of Catriona Alison McKenzie, sworn on 6 May 2019 and 15 July 2019 respectively. Dr McKenzie is a Senior Staff Specialist at Royal Prince Alfred Hospital at Camperdown; 4. two affidavits of Robert John Morgan, a Senior Industrial Officer at ASMOF, sworn on 17 May 2019 and 6 July 2019 respectively; 5. two affidavits of Maria Nittis, sworn on 15 May 2019 and 15 July 2019 respectively. Dr Nittis is Head of Department and Senior Staff Specialist at Western Sydney Local Health District, and she works in the area of Clinical Forensic Medicine; 6. an affidavit of Fernando Pisani, a Staff Specialist in the Emergency Department at Blacktown Hospital, sworn on 16 July 2019; 7. an affidavit of Catherine Ryan, an Industrial Officer at ASMOF, sworn on 16 May 2019; 8. an affidavit of Anthony Sara, a Senior Staff Specialist Medical Administrator at South East Sydney Local Health District, sworn on 17 May 2019; and 9. an affidavit of Choong Siew Yong, a Senior Staff Specialist at Infant, Child and Adolescent Mental Health Service at the Bankstown Community Health Centre, sworn on 21 May 2019.
The Ministry read: 1. an affidavit of Elizabeth (Liz) Partridge sworn on 25 June 2019. Ms Partridge is a Senior Project Director at Health Infrastructure; and 2. a statement of Melissa Collins, the Director Industrial Relations and Human Resource Policy in the Workplace Relations Branch of the Ministry, dated 18 April 2019.
The Ministry tendered various other documents into evidence, which it is not necessarily to separately identify. One bundle of documents comprised four confidential exhibits to Ms Partridge's affidavit, which were collectively tendered into evidence as Exhibit R2. These were tendered on the basis that they not be published, and in the absence of any objection from ASMOF I propose to make an order to that effect.

Outline of submissions

Each of the parties relied on quite detailed written submissions which have been of considerable assistance in clarifying the issues in dispute. I do not intend to outline those submissions in detail or reproduce them at length.
ASMOF's submissions may be summarised as follows: 1. The obligation imposed by cl 24 of the Award depends upon an assessment of what is "reasonably necessary" for the requirements of staff specialists. The nature and standard of the office, secretarial and administrative support which must be provided to a staff specialist will depend upon the nature, duties and responsibilities of staff specialists. 2. Having regard to relevant authorities, the question of what office support is "reasonably necessary" to undertake the requirements of the position of a staff specialists for the purposes of cl 24 should be approached on the basis of assessing what is "reasonably appropriate (rather than essential)" having regard to the duties of a staff specialist. The provision is not confined by reference to the nature of the resources available at a particular location. 3. On the basis of the ordinary language contained in the clause and its historical context, cl 24 mandates that staff specialists be provided with a dedicated office (being an enclosed space). This may be on an individual or a shared basis, depending on the circumstances. The requirements of the clause are not met through the allocation of a workspace in a common area. 4. The question of what is "reasonably necessary", therefore, goes to the location and size of the office, not whether it will be provided. 5. As an alternative argument, the evidence discloses that to undertake the requirements of their positions staff specialists would require a dedicated office space. The dimensions and location of that office, and whether it is provided on an exclusive or shared basis, would be determined by what is reasonably necessary. 6. Moving away from the provision of an office to staff specialists is likely to result in adverse long-term effects on the health system, including loss of productivity, effects on memory performance, increased fatigue, reduced motivation of staff, decreased complex focused work and an increase in sick leave.
ASMOF's submissions can be seen to provide alternative constructions of cl 24. Its preferred construction was that the clause requires or mandates the provision of a dedicated, enclosed office to staff specialists ("ASMOF's preferred construction"). Its alternative position was that it would be reasonably necessary in order to perform the requirements of their position that staff specialists be provided with a dedicated, enclosed office space. In either case, the question of what is "reasonably necessary" would determine the dimensions and location of the office, and whether the office is provided on an exclusive or shared basis.
ASMOF seeks a determination from the Commission as to whether the arrangements proposed by the Ministry, as reflected in the Fitout Design Principles and Workspace Accommodation Policy, are consistent with cl 24. ASMOF also seeks a recommendation from the Commission that the Ministry apply the following "recommended standards" regarding office accommodation for staff specialists: "1. 0.6 - 1.0 FTE positions should have their own office. 2. 0.1 - 0.5 FTE positions can be required to share an office. [However, there may be situations that this may not reasonably be appropriate and should be dealt with on the merits of each case.] In this situation, it would generally not be expected that more than 2 staff would be allocated to any one office. 3. Those positions that are subject to genuine job sharing arrangements can also share an office. 4. Office space to be nine (9) square metres for Staff Specialist, Clinical Academics. 5. Those positions that have managerial responsibilities attached (identified for example by the provision of a managerial allowance) or have roles that require similar consideration (such as for example Directors of Training) should have office space of at least twelve (12) square metres. 6. The office is to be (if at all physically possible) adjacent to service areas. 7. Interview/meeting rooms should be nearby and reasonably accessible. 8. The office must be secure and lockable, along with being reasonably soundproof. It should be cleaned regularly and maintained to reasonable standards. The office layout must be to acceptable ergonomic standards. 9. The office must contain [at] a minimum a desk, chair, phone, network computer, lockable filing cabinets, and bookshelves. Ready access to a printer and photocopier would be expected. Shared offices have sufficient allocation of office equipment/furniture for each staff member."
The submissions made by the Ministry included the following: 1. In cl 24 of the Award the word "office" is not used in the singular but as a composite expression. The words "office", "secretarial" and "administrative" are used as adjectives to qualify the noun "support". 2. The expression "office, secretarial and administrative support" must be construed as a whole. The words "office…support" must be read in light of the other kinds of support addressed in the clause, namely, "secretarial support" and "administrative support". 3. "Office support" is properly to be construed as referring to what is often called the "back office". That is, it refers 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. 4. The phrase "office support" is not apt to refer to and does not contemplate the provision of a physical office to staff specialists. 5. A construction of the phrase "office support" to include the provision of an enclosed room would render the word "support" nugatory. 6. Even if the expression "office support" refers to the provision of a physical space rather than the provision of office services, it does not necessarily refer to the provision of an enclosed office. An office can be a shared open space where work is performed including the provision of a desk, chair and other facilities to perform clerical work. 7. The history of the clause does not support an assumption that the parties had contemplated that the words "office, administrative and secretarial support" included a reference to office accommodation. 8. The words "reasonably necessary" involve an evaluative judgement, providing the Health Secretary with latitude to determine the different kinds of support which may be provided to enable a staff specialist to perform his or her job. 9. The Commission's general approach to workplace change is not to infringe upon an employer's right to manage its business unless the employer's action imposes unfair or unreasonable demands on employees or where it becomes unsafe. 10. In light of relevant authority, the Health Secretary has the right to determine the appropriate level and form of office support for staff specialists 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.

Relevant legal principles

It will be apparent that the determination of the issue currently before the Commission turns on the proper construction of cl 24 of the Award.
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 Industrial Relations Act 1996 (NSW) ("Act"). The Award is an industrial instrument: s 8 of the Act.
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].
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 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."
I will apply these principles in the disposition of these proceedings.
There are essentially two questions requiring determination in these proceedings. Firstly, does cl 24 extend to include the provision of an enclosed, dedicated office to staff specialists? ASMOF contends that it does so in one of two ways - either through the language and history of the provision, which leads to the conclusion that it in fact mandates the provision of an office, or as a consequence of the provision of such an office being reasonably necessary in order for staff specialists to perform their duties. The Ministry's position is that the phrase "office, secretarial and administrative support" does not include the provision of physical offices.
Secondly, if the answer to the first question is affirmative (a negative answer largely determining the matter), are the requirements of cl 24 met through the arrangements contemplated in the Fitout Design Principles and Workspace Accommodation Policy?

Does clause 24 encompass the provision of an office to staff specialists?

In her affidavit Ms Ryan set out some of the history of the Award. By reference to documents that she had found in ASMOF's records, Ms Ryan deposed to the following: 1. The predecessor to cl 24 of the Award was cl 17 of the former Staff Specialists (State) Award, which provided as follows: "Staff Specialists shall have access to reasonable office, secretarial and administrative support, as agreed between the Staff Specialist and the Employer, subject to resources being available…" 1. In July 2004 ASMOF lodged an application with the Commission to vary the former award. Amongst other changes sought, ASMOF sought that cl 17 of the former award be deleted and replaced with the following: "All staff specialists, including part-time staff specialists, will be provided with appropriate office, secretarial and administrative support to perform their duties, including…" 1. The proposed clause went on to itemise 11 types of support, including the "exclusive use of lockable office accommodation of at least 5m X 4m in area which is equipped with ergonomically sound office furniture" (sic). 2. In the course of negotiations for the award, ASMOF put forward a proposal under which the clause would be amended to reflect the language which now appears in cl 24 of the Award. ASMOF further proposed that the parties agree to a "non-Award protocol" which would make the provision of "reasonable office, secretarial and administrative support" subject to discussion, with the proviso that the resources available to a staff specialist would ordinarily include "use of secure office accommodation appropriately equipped with ergonomically sound office furniture, file and records storage facilities". 3. The language which appears in cl 24 of the Award was agreed between the parties. The amended clause was incorporated into the Award by a decision of the Full Bench of this Commission handed down on 28 April 2006.
There is no evidence that the parties ever reached agreement on the "non-Award protocol" that would operate in conjunction with the Award. There was some suggestion that the protocol may be reflected in the Policy Directive, which bears a publication date of 26 April 2005. It provided that the "required workspace" for staff specialists was an office with dimensions of 9m², but made no reference to the Award and did not explain the source of the requirement. There is no evidence that the Policy Directive was created to give effect to any "non-Award protocol", nor is there any reference to the Policy Directive in any of the documentation produced in relation to the negotiation of cl 24. It follows that there is no basis on which I could conclude that the Policy Directive was intended to reflect or incorporate the "non-Award protocol".
Indeed, it cannot be said that the Policy Directive is intended to reflect any Award obligations, whether under cl 24 or otherwise. Although some staff specialists have been provided with office accommodation consistent with the Policy Directive, Ms Collins' evidence suggests that this is not universally the case. The Policy Directive cannot be taken as reflecting the Ministry's understanding of its obligations or of staff specialists' entitlements under cl 24.
Even had the "non-Award protocol" been agreed in the terms advanced by ASMOF, those terms included that while "reasonable office support" would "ordinarily include" the use of secure office accommodation, this was "subject to discussion". On its terms, and leaving aside the legal status and enforceability it would have had, the protocol did not guarantee the provision of enclosed, lockable offices to staff specialists.
The history of cl 24 suggests that it was certainly in the contemplation of ASMOF that "office, secretarial and administrative support" could encompass the provision of lockable office accommodation. However, the fact that ASMOF sought to amend the previous clause so as to refer specifically to office accommodation (and other support) suggests that there may have been some doubt about the entitlement as at 2004 and 2005.
Overall, there is insufficient evidence to find that there was, to use the language in ASMOF's submissions, "a common understanding as to the meaning and effect" of cl 24 which was consistent with ASMOF's preferred construction of the provision.
It is therefore necessary to consider the language adopted in the clause. To state the obvious, cl 24 does not expressly provide that staff specialists will be given an office. Rather, in so far as these proceedings are concerned staff specialists are relevantly entitled to "such office…support…as may be reasonably necessary to undertake the requirements of [their] position". This language, noting in particular the word "such" combined with "as may reasonably be necessary" is qualified and is inconsistent with a guaranteed entitlement to be provided with "an office".
Further, clause 24 refers to a staff specialist having access to particular support. That is not necessarily the same as being entitled to be provided with that support. Mr Gibian cautioned against placing too much weight on such semantic differences, but it is a distinction that has some relevance. This is particularly the case given that in 2004 ASMOF unsuccessfully sought to have the language of the clause amended to replace "access to" with "provided with" (see [19] above). This suggests that ASMOF considered at the time that there was significance in the use of the alternative language.
Assuming that the clause contemplates or could extend to the provision of a physical office (to which I will return), the language adopted allows for the possibility that there will be circumstances where it will not be reasonably necessary that a staff specialist have access to an office in order to perform their duties. This was conceded to a point in ASMOF's evidence. [1]
For these reasons, I do not accept ASMOF's contention that cl 24 requires, in the sense of mandates, the provision of a dedicated, enclosed office to all staff specialists, whether on an individual or a shared basis.
The next question which arises is whether cl 24 contemplates the provision of a physical office at all. That is, whether "office…support" should be read as including the provision of the office itself.
It was accepted by the parties that the adjectives "office", "secretarial" and "administrative" qualify the noun "support". The Ministry contended that the meaning to be given to "office" must be informed by the words "secretarial" and "administrative".
The Ministry drew my attention to Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207 in which Spigelman CJ, with whom McColl and Basten JJA agreed, stated: "30. The general principle of the law of interpretation that the meaning of a word can be gathered from its associated words - noscitur a sociis - has a number of specific sub-principles with respect to the immediate textual context. The most frequently cited such sub-principle is the ejusdem generis rule. The relevant sub-principle for the present case is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu - the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word 'stands with' other words it 'must mean something analogous to them'. (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987. See also W J Byrne (ed) Broomes Legal Maxim (9th ed) Sweet and Maxwell, London (1924) pp373-374.) … 32. …The reading down of general words is one of the most common mechanisms applied in the course of legal interpretation. The Court should not give one word in an interrelated, overlapping list of expressions a meaning that is so broad as to be inconsistent with adjoining words or that renders those words irrelevant."
There is some opacity in the precise meaning that the Ministry would give to cl 24. In some respects the construction proposed by the Ministry is to treat the phrase "office, secretarial and administrative support" as a largely homogenous category. Even to the extent that the Ministry's submissions allowed for a distinction between "office support", "secretarial support" and "administrative support", the difference that the Ministry would draw between those phrases was not at all apparent.
In its Outline of Opening Submissions the Ministry contended as follows: "31. The cognate expressions 'secretarial…support' and 'administrative support' convey similar ideas to the conventional meaning of the expression 'office…support'. The phrase 'secretarial support' refers to the support given by a person who conducts correspondence, keeps records and performs clerical services such as typing for an individual or an organisation. Likewise, the phrase 'administrative support' refers to the support given in the management or direction of an office or business. Each item in the list is interrelated and overlapping in nature which informs the meaning of the expression 'office support' as falling within the same genus of the adjoining expressions of 'secretarial support' and 'administrative support'. By their contextual juxtaposition, the phrase 'office support' is therefore, properly understood, to refer to what is often called the 'back office'; that is, the support of the main business where routine paperwork and clerical duties are performed and [sic - by?] the staff members."
Ultimately, it is not necessary in the context of the present proceedings to determine precisely all that may be encompassed by the phrase "office, secretarial and administrative support". All that is required is to determine whether that phrase could extend to requiring that staff specialists be provided with office accommodation, whether on an exclusive or a shared basis, if that was reasonably necessary to undertake the requirements of their role.
The term "office support" is one of potentially wide scope. The office support to which a staff specialist will have access is such support as may reasonably be necessary for the staff specialist to undertake the requirements of their position.
The Ministry's approach in large part equated "support" with the performance of duties. That is, the Ministry construed "office support" as being the work performed by other staff members in the "back office" to assist staff specialists to undertake their duties. In its outline of submissions the Ministry made reference to "office support" being "the provision of office services". [2] That said, the submissions also made reference to office support including the "supply of office equipment and stationery". [3]
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.
Construing "office support" as extending to equipment and physical support is not inconsistent with the Award. Under cl 12 of the Award a staff specialist is required to have a written annual performance agreement. Clause 12(e) requires the performance agreement to include, amongst other things, specific commitments from the employer "for the provision of clinical support, including staff, equipment, facilities and billing".
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.
During the hearing I had the following exchange with Mr Seck: [4] "COMMISSIONER: As much as I hesitate, Mr Seck, my understanding of the submissions, and I'm going to bring them down to the nub as I see them, as I see this case it's a question of cl 24 and what entitlement does cl 24 confer on a particular staff specialist. Your contention is that cl 24 when it talks about office, secretarial and administrative support is that phrase as a whole is to be construed as referring to back office support. Just reading from para 31 of your submissions, that's the support of the main business where routine paperwork and clerical duties are performed. So obviously if I accept that construction then whatever that looks like is really irrelevant for the purposes of these proceedings. SECK: Yes. COMMISSIONER: If I'm against you on that and I accept ASMOF's contention that it does at least allow for the physical work environment, the provision of an office, would you accept on that assumption that there will be circumstances where, given the requirements of a particular staff specialist, their position, then it would be reasonably necessary that they be given an office? SECK: Yes. The Dr McKenzie example is the best one I can point to on that. The answer is yes."
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.
Despite having made that finding, it would not be appropriate to make the recommendation sought by ASMOF, as referred to at [10] above. This is for several reasons. Firstly, the proposed recommendation is premised on ASMOF's preferred construction of cl 24, which I have dealt with at [25]-[28] above. For similar reasons as set out in those paragraphs, the "one size fits all" nature of the proposed recommendation is inconsistent with the language of the clause.
Secondly, the evidence does not support the proposed recommendation being made. Rather, the evidence revealed differences in the work performed by staff specialists and their particular needs. Although a number of concerns were consistently raised - such as privacy and confidentiality, the need for a workspace conducive to high levels of concentration and cognitive input, and the security of information and property - ASMOF did not demonstrate it was reasonably necessary that all staff specialists from 0.6 to 1.0 FTE have their own office, or that staff specialists from 0.1 to 0.5 FTE be allocated a shared office.
Thirdly, while "office support" might extend to the provision of a physical office, it need not do so. This will depend on what is reasonably necessary in the circumstances. Recognising that an "office" need not be confined to a single room in which a staff specialist or specialists may work, but may include the broader area in which a workforce might work, "office support" allows for a range of outcomes from individual dedicated and enclosed offices to shared workspaces in an open-plan configuration.
The entitlements of a staff specialist and the obligations of the Ministry under cl 24 can only be determined on a case-by-case basis, taking into account the work performed by the staff specialist and the place at which it is performed.
It is necessary to observe that the parties led no evidence and made no submissions as to whether any extant arrangements are, or are not, compliant with cl 24. Ms Collins deposed that there was no intention on the part of the Ministry "to change the accommodation provisions of existing offices". [5] The Workspace Accommodation Policy would apply only to new developments or redevelopments. On this basis I make no findings or comments on any arrangements already in place for staff specialists.

Are the proposed working arrangements consistent with clause 24?

Having found that cl 24 extends to include the office accommodation to which staff specialists must have access, the next question the Commission was asked to determine is whether the requirements of the clause are met through the arrangements contemplated by the Fitout Design Principles and Workspace Accommodation Policy.
A necessary first step in addressing that question is to clarify precisely what the Workspace Accommodation Policy contemplates. There was a significant divergence between the parties in this regard. Although it will be necessary to return to the Fitout Design Principles, I note for context that they require the adoption of an "activity based planning" model. The parties were at odds as to what that term means. This appeared to be at the heart of the dispute.
The staff specialists called by ASMOF gave evidence as to the nature of the work they perform; their understanding of the changes that will occur if the Workspace Accommodation Policy is introduced; in some cases, their prior experience working in an open plan or shared office environment; and, why, in their opinion, their work required them to have the use of an enclosed office. It was not always apparent how each witness came about their understanding of what is meant by activity based working. Some made reference to what they had been told in consultation meetings with Ministry staff, although few details were provided. Some drew inferences from their observations of sites at which activity based working had already been introduced by the Ministry. In some instances it appeared that the witnesses were doing little more than relying on assumptions and speculation.
ASMOF's witnesses variously described their understanding of the changes proposed by the Ministry as follows: 1. Professor Liddle deposed that workspaces at Westmead Hospital were being refurbished under a policy described as "new ways of working". He referred to this as "another name for activity-based working where there are only shared desks in an open-plan configuration". [6] He stated that the process results in "non-lockable 'open plan' workspaces". [7] He described activity based working as "an open plan hot desking environment, as being a one size fits all approach". [8] 2. Dr McKenzie gave evidence as to the impacts of working in an "open office space environment" [9] and of the "proposed 'hot desking'". [10] 3. Mr Morgan deposed as to the impact of working in "open plan offices" or in an "open plan office environment" [11] . In his affidavit of 6 July 2019, in response to the evidence of Ms Partridge, to which I will return, Mr Morgan deposed as follows: "20. Ms Partridge's affidavit at 72 seeks to distinguish activity based working models from 'homogenous open plan models'. The only distinguishing feature is that the activity based working model is an open plan design augmented by a number of enclosed spaces/offices which may be available for certain staff at certain times but which I generally only available when pre-booked, and must be vacated when the booked session is completed." (Emphasis in original) 1. Dr Sara referred to the creation of an "open plan" workspace [12] . In his affidavit he described his understanding of the proposed arrangements as follows: "10. …Hot desking will be the norm, no individual filing cabinets provided, a personal locker of about 0.5 [cm³], no personal space, noise interruptions will be the norm, it will be impossible to have a [quiet] private conversation without difficulties to all involved." 1. In his affidavit Dr Mallows deposed as follows: "10. With the new Activity Based Working, I would be required to work in a random office space, remote to all of the education and training resources that were required to do my job stored in a second area, and be required to find a third area for a private chat with the trainee. … 14. Task switching is an ever present burden on clinical staff which has not been factored into [Activity Based Working]'s principles or decision-making as far as I can see. I can see a future where if we have to move location every time we task switch, it will lead to a very inefficient and dysfunctional administrative situation."
This evidence was distilled into the following submission by Mr Gibian: [13] "What it appears from the evidence is proposed so far as workspace that would be available to health workers generally, including to staff specialists so far as what's traditionally been office space work, is that there would be no designated office or, indeed, workspace at all for each individual employee, that it be a kind of hot-desking type arrangement where they work at different places at different times, depending upon the work that they're undertaking, without having a base or designated workplace at all but work in a shared environment, that they would not certainly have an enclosed dedicated office space available for them to perform their work. At best, it's suggested that there may be some such spaces available to be used, subject to availability and booking if that is possible and the person would, if that's necessary, need to book that space or it be made available to them, move in, set themselves up, undertake work and then pack up and move out so that it could be used by another staff members as is necessary."
As to whether these arrangements would be compliant with cl 24 Mr Gibian submitted as follows: [14] "I say the nature of the office would depend upon an assessment of reasonable necessity in the particular case but we do think that it is such office support as is reasonably necessary means there will be some form of office support, not merely what seems to be contemplated now as at the very least the default, if not the necessary prescription, a form of hot-desking where they don't really have any dedicated space at all and are simply required to camp or will not in future have any dedicated space at all which would answer the description of being 'office support'. There would merely be a series of shared spaces in a mandated open plan configuration. We don't think that constitutes the provision of office support."
The evidence relied on by ASMOF is to be contrasted with that of Ms Partridge. In her affidavit Ms Partridge deposed as follows: "24. In understanding the difference between the Previous Policy [the Policy Directive] and the Draft Policy [the Workspace Accommodation Policy], it is helpful to understand the different workspace models used in building design. Many different models and terminologies exist, but for the purposes of this matter, three models can be described: traditional, open plan and activity based working. 25. The traditional model accommodates staff in a series of offices - that is, cellular enclosed spaces sized up to approximately 20m2 - connected by corridors. Staff are provided with a dedicated workpoint within an office. The offices might accommodate a single person (one workpoint) or be shared (typically two, three or four workpoints in one office). The workpoint may be shared by two staff who work part time. [Ancillary] spaces such as meeting rooms are also provided. 26. The open plan model accommodates staff in unenclosed spaces that may have one through to dozens of workpoints within them. Staff are allocated a dedicated workpoint at a desk within the unenclosed space. The workpoint may be shared by two staff who work part time. [Ancillary] spaces such as meeting rooms are also provided. 27. Many workspaces in NSW Health health care facilities are currently a mix of traditional and open plan workspace. This has been driven by the Previous Policy, which allocates traditional offices to some staff, including Staff Specialists, and allocates open plan provisions to others. 28. The activity based working model accommodates staff in a range of settings, both enclosed and unenclosed, tailored to the type of work that the particular staff cohort undertakes and the proportion of their working hours spent engaging in different tasks. Using this model, staff share the workpoints within these settings, so that all staff can access the range of spaces they need to be productive. Activity based working does not seek to dictate the range of spaces that might be provided in any given design. Instead, it promotes the use of consultation processes that enable staff to articulate their working styles and be involved in the design of working environments to suit. Staff cohorts that are highly collaborative, for example, may develop a workspace that includes a high number of settings that support group working and discussion. Staff cohorts that undertake a mix of collaborative and focused work may develop a workspace that includes a range of setting types to support both group working and individual working. 29. Activity based working is often described as a flexible way of working. This should not be conflated with the concept of 'flexible working', as raised in Robert Morgan's witness statement (attachment BM7, page 8). … 30. Flexible working is a concept wider than the design of workspace accommodation within a particular facility. lt encompasses policy considerations derived from broad socio-economic workforce factors such as demographic profiles, the length of time people are spending in the workforce, job-sharing, part-time working and multi-site working. These broader workforce considerations are outside the scope of the Draft Policy." (Emphasis in original)
Under cross-examination Ms Partridge was taken to the Workspace Accommodation Policy. She deposed as follows: [15] "Q. Is it consistent with this policy for a design to be developed for a particular office workspace in a hospital to include an enclosed office space which is dedicated to a particular individual worker as their own office exclusively? A. It's not precluded by this, no, and there are examples where people have chosen to dedicate workstations to particular staff members who need to stay in one place. Q. Enclosed offices? A. I'm not aware of any examples of enclosed offices at this point in time. Q. But you say that it would be possible, consistent with these principles, notwithstanding what it says in the government fit-out principles, for that to be included in a design for a hospital workspace? SECK: I object to the question. The point that Mr Gibian made of 'notwithstanding what's in the fit-out'-- GIBIAN Q. I withdraw the 'notwithstanding' part. A. Yes, I guess the point I was going to make is there's a lot of things that a health organisation will need to take into account when applying the fit-out principles, the policy and all of the other things they need to take into account, training requirements et cetera. So that would all go into the mix and, through consultation, they would come up with the result. The constraint is the space budget, there's obviously a very clear space budget that's provided for in the fit-out design principles which they need to apply, and there are other requirements that they need to comply with as well. But the point about it is it's a framework within which to consult and come up with a suitable outcome. Q. I just want to make sure we are clear on this. Your understanding at least is that the inclusion of enclosed dedicated offices for particular - dedicated to a particular worker as their office is consistent or at least may be consistent with this policy. Is that your position? A. A health organisation may make that decision, yes."
Later in cross-examination Ms Partridge deposed as follows: [16] "Q. The activity based model, as it's been described to the staff specialists who gave evidence here, is that no employee would have a designated office, or indeed, designated workspace at all; is that your understanding as generally how it's envisaged the activity based working would operate? A. One of the fundamental principles is that spaces are shared. That doesn't rule out the dedication of particular spaces to particular functions where necessary. I mean, there's no - in that sense there's no preclusion to that. So the intent is that people have access to a range of spaces because they're shared, and this overcomes some of the difficulties that, you know, it's been rightly pointed out exist if you only have access to a workstation in a very open area. Q. All right, but the general philosophy is that all spaces will be shared, correct? Or do you disagree with that? A. No, I don't know that I agree that all spaces are always shared. I think the sharing arrangements as described in the policy have to be arrived at with a good understanding of the kind of work that's being done, and, you know, staff specialists work very variably across different departments, as do other staff, the nurses and the clinical educators, and it's very important, and this is what the policy enables, that we're able to talk to the people that are working in those spaces, and design spaces and sharing arrangements that suit within the space budget that's been set."
In re-examination, Ms Partridge deposed as follows: [17] "Q. Can you explain to the Commission your understanding of the model and how it can lead to those wide variety of outcomes? A. Okay, so the premise is that there's no presumption as to what mix of spaces is provided under an activity based working model. The presumption is that staff will be consulted as to the way they work. Studies will be done to, I guess, really analyse the amount of time they spend in different kind of work environments at the moment, to make sure that sufficient capacity is provided in the new work space environment. And so through that consultation and analytical process, a schemer is developed with the group that's going to be accommodated, to accommodate that group generally within a space budget. So, in this instance, the government has decided that the space budget is 12 square metres per work point, which is a very common number. So, within that, there's a lot of flexibility within the policy that we're putting forward, to do something that's very particular and supportive of the staff cohorts that we're going to be accommodating. And it's very much up to the group that's going to be accommodated to both design how it looks and feels and to decide how it's going to work, in terms of the way that they share the space, the etiquette that they put in place in order to share the space effectively with each other. And the benefit of that for Health, as Health sees it, is an opportunity to provide a greater range of spaces for the staff cohort, a greater range of collaborative spaces in particular, because as Health sees it, team working is going to be much, much more important to providing effective care as we move forward into the next few years. So, even though the government has decided this is what needs to be applied, for very similar reasons to work spaces across the public service, and of course government agencies, Health was already interested in this and the outcomes of this, hence the work that was done in western Sydney and Murrumbidgee Local Health District that has been put in place and some of the work that will be put in place as we've seen in the exhibits. Q. And in using activity based planning as the space planning model, is it your understanding that it necessarily excludes the possibility of enclosed offices? A. No, on the contrary. The policy, as it's written, encourages staff cohorts to describe different sorts of enclosed space that they will need, whether that's a single person enclosed space, what we might traditionally call 'an office', of a multi-person space or something different again. So again, there's no assumption about what will be provided."
At its core, the contest between the parties came down to this: ASMOF and its witnesses saw "activity based working" as a particular workspace model which mandated, effectively, open plan hot-desking arrangements. At least part of their grievance stemmed from the fact that the adoption by the Ministry of activity based working (as they defined it) was not the subject of consultation and was not apparently open for negotiation. In contrast, the Ministry described activity based working as an approach to designing workspaces where no particular result is foregone and in which, at least in theory, all options were open for discussion.
If the Ministry applies the approach described by Ms Partridge and engages in proper and effective consultation with ASMOF and those it represents, many of the concerns raised by the staff specialists in these proceedings could be addressed or ameliorated through the proper application of the activity based working model. Perhaps the only outcome which seems to be precluded is that which is preferred by ASMOF, namely that every staff specialist be guaranteed a dedicated, enclosed workspace (whether on an exclusive or shared basis).
The "disconnect" between the parties was reflected in the following exchange I had with Mr Gibian: [18] "COMMISSIONER: My point was more this, that I think it was largely accepted, and Mr Seck will correct me in his submissions if I'm wrong about this, I thought Ms Partridge largely accepted that activity based working was mandated. GIBIAN: Yes. COMMISSIONER: But that in itself allowed for a scope of outcomes, which is the nature of the model, which is a different thing to, I think what she refers to in her statement as the homogenous open plan model, or something like that. But I thought what she was saying, within - while there might not be consultation on whether you can have traditional office based accommodation as opposed to activity based working, within the activity based working model there was sufficient flexibility to allow for dedicated offices for those for whom it was genuinely required. And I know that it's not quite on point, because she said it was not quite covered, but when we were talking about anatomical pathologists yesterday, that was an example she used. But then of course we moved on to saying, well, they probably shouldn't be covered, because they're a special breed - my words, not hers. GIBIAN: Yes. As I say, the difficulty with that is, perhaps it is - well, maybe three things. The first, as I've said, is that's not what it says in the policies. The policies purport to adopt the fit-out principles which say open plan is mandated. The second is that, to the extent there is even contemplated the possibility of enclosed space it's said to be the extreme exception, that is, one has to test, however one tests it, any open plan configuration first. And clearly, given the space constraints which are imposed, one can't have traditional offices and a full activity based working arrangement. That is, one would have to have twice as much space, as it were. That is, it's not being suggested that one could, instead of having an activity based working arrangement, which has various different spaces, open plan, meeting rooms and the like, one would have individual offices that could be accommodated for any reasonable number of the staff specialists, so as a practical matter. Thirdly, the experiences reported by the ASMOF witnesses, and I particularly note what Professor [Liddle] said about that, is it's just not on the table. It's not a matter which is contemplated, and to the extent they've had experience in the consultation, it's not a matter that the Ministry or the Health authorities are willing to contemplate and discuss, perhaps understandably, because it's not what it says in the principles that they are purporting to apply. So if the Ministry wishes to adjust its position to suggest that dedicated offices are to be contemplated, not as some extreme exception, but as an option that can be incorporated in an appropriate workplace design, then they would need to amend the, what they propose, remove the mandating of open plan, remove the mandating of activity based working, and allow a genuine consultation about whether or not a more traditional office based arrangement is appropriate for a particular workplace, or some newer version of activity based working. And that's not what is contemplated by the policy. If they wanted to change it, then we might be in a different position so far as the dispute is concerned."
There are certainly grounds on which ASMOF might query whether the Ministry's position as described by Ms Partridge is properly reflected in the Fitout Design Principles and the Workspace Accommodation Policy. To the extent that it is not, this might have exacerbated the concerns held by ASMOF and the staff specialists.
The Workspace Accommodation Policy is said to respond to and be complementary to the Fitout Design Principles. It provides as follows: "6.1 The process of developing new Workspaces for NSW Health staff must be undertaken in alignment with the planning and design criteria set out in the Fitout Design Principles as amended from time to time. 6.2 While the Fitout Design Principles do not support enclosed offices, Health Organisations are encouraged to develop workspaces that support both collaborative work and focussed, individual work. In this respect, the inclusion of enclosed spaces for high focus work is acceptable. Appropriate arrangement[s] for equitable use of enclosed spaces will be developed by each Health Organisation through the consultation process." (Emphasis in original)
The Fitout Design Principles contain the following statements: "The NSW Government's clear direction is to create consistent, efficient, flexible, agile and dynamic workplaces across the whole of Government." (p 3) "Activity based working/flexible working arrangements: Agencies must actively pursue and develop plans for office accommodation that is suitable for activity based working and flexible working arrangements." (p 4) "Enclosed offices are not supported and should only be provided for a specific operational requirement (with other open plan office arrangements/configurations being fully tested first), otherwise layout is to be open plan." (p 4)
Under the heading "Mandatory Requirements" the Fitout Design Principles provide that the "Space Planning Model" is to be activity based planning. Enclosed offices are said to be "not permitted" (albeit possibly allowed "by exception" - the drafting is not clear), with open plan configurations being mandated. Appropriately located small meeting rooms are to be used for confidential discussions.
I digress to observe that a question was raised during the proceedings as to whether the Fitout Design Principles do in fact apply to hospitals and similar health facilities. This arises from the document being stated to apply to "new or upgraded Government commercial office accommodation". This was the subject of some evidence during the proceedings. The Ministry regards the Fitout Design Principles as applying to the facilities at which staff specialists will be engaged and I accept that this is the case.
Read together the Workspace Accommodation Policy and the Fitout Design Principles do not provide the same level of comfort regarding the flexibility available through activity based planning as described by Ms Partridge. I have no reason to doubt Ms Partridge's evidence as to the theoretical flexibility available through the model she described. To my mind, it would go a long way towards alleviating the concerns of staff specialists, and resolving the underlying dispute between the parties, if the documents more clearly reflected the position described by Ms Partridge.
At the same time, I am satisfied on the evidence that "activity based working" does not of itself dictate a particular workspace arrangement. It is more properly to be regarded as an approach to designing workspaces rather than an end in itself, with the caveat that one of its fundamental principles is that spaces are shared. This does not, however, preclude the possibility of dedicated, enclosed offices being made available.
It follows that the application by the Ministry of activity based working principles in and of itself need not be contrary to the Award. It is the outcome that matters, not the philosophy adopted to determine that outcome.
To the extent that the Workspace Accommodation Policy is intended by the Ministry to reflect those activity based working principles and not mandate a particular outcome, it is not inconsistent with cl 24 of the Award. By contrast, if it was intended to apply the Workspace Accommodation Policy in such a way as to preclude the possibility of staff specialists ever being provided with a dedicated office, whether on an individual or shared basis, there is a risk of the Ministry contravening cl 24. As stated above, the clause requires a case-by-case assessment of what is "reasonably necessary" in the circumstances of the particular staff specialist or specialists. The Ministry is as constrained as ASMOF in seeking a "one size fits all" approach to the clause.
The divergence in the understanding of the parties as to what is proposed by the Ministry under the Workspace Accommodation Policy also has a bearing on the weight to be attached to evidence adduced by ASMOF regarding studies into the deleterious effects of open plan working arrangements.
Annexed to Mr Morgan's affidavit of 17 May 2019 was a letter from ASMOF to the Ministry dated 2 October 2018. In respect of that letter Mr Morgan deposed as follows: "16. …ASMOF's 21 page response references extensive literature which proves that open plan offices cause decreases in productivity and collaboration, reduced job satisfaction, and can negatively impact on employees['] mental and physical health…"
Relying on the same correspondence, Dr Sara deposed that in his opinion the "proposed office accommodation" would have a number of adverse effects, including long-term loss of productivity due to dissatisfaction, primarily due to noise and lack of privacy; an impact on memory performance, increased fatigue and reduced motivation due to working in a high noise environment; a reduction in collaboration; a decrease in complex focussed work due to the inability to focus; a significant increase in sick leave, including as a result of higher workplace density having been shown to be associated with higher psychological work stressors leading to poor physical health, emotional and cognitive irritation and lower mental work ability; the risk of spreading infectious diseases; and, a manifest inability to maintain privacy. [19]
Professor Liddle gave the following evidence: [20] "Indeed, there is a considerable evidence base that open plan shared workspaces have a deleterious effect on morale, ability to carry out tasks that require high levels of concentration and interpersonal interactions."
Dr Mallows attached to his affidavit "a number of articles and research papers regarding the impact of open plan offices". He described them as being "overwhelmingly and universally negative". [21]
In her affidavit Ms Partridge responded at some length to the evidence adduced by ASMOF, and the various studies referred to in the letter from ASMOF to the Ministry dated 2 October 2018. [22] I do not propose to traverse that evidence at length. Ms Partridge's position was effectively summarised in the following exchange in cross-examination: [23] "Q. And you agree that the studies that they've referred to have a consistent and strong indication that there are negative consequences that flow from open plan office arrangements? A. Yeah and I think they stem from the fact that the people in those environments have no choice, so they have no choice but to work in a work station in a relatively open environment. Q. Firstly, you agree with what I've said as to the tenor of those articles, correct? A. I agree that the articles raise concerns about open plan, which is why we're not promoting open plan. Q. Well, you say that they're all not relevant because they refer to open plan, rather than activity based, is that right? A. Yes, because a person's experience of a work space environment is about the whole experience, it's not just about their experience in any particular space or on any given day. So the things that these articles raise in terms of people needing sometimes to be able to go and focus on a particular task are tied to the fact that open plan environments give you a dedicated work station in that open plan environment and you have no choice but to use that. You have no opportunity to go and use a different kind of space. Whereas, the activity based work space model turns that on its head and it says, 'Well, let's provide a range of spaces that people can access' and the way that we make that efficient and affordable is to make at least some of them shared."
I accept the Ministry's submission that the Commission's general approach to workplace change is not to infringe upon an employer's right to manage its business unless the employer's action imposes unfair or unreasonable demands on employees or where it becomes unsafe. Evidence as to the potential adverse consequences of open plan working might be relevant to a consideration as to whether a particular workspace arrangement was unreasonable, unjust or unsafe. However, I cannot be satisfied on the evidence before me that the parties are, to use the vernacular, "comparing apples with apples". On the evidence it is not necessarily the case that the approach proposed by the Ministry would lead to workspaces with the same characteristics and shortcomings as those in respect of which the research was based.
It follows that while I have considered the evidence adduced by ASMOF regarding the potential adverse consequences of employees working in an open plan environment, I have not given it particular weight.
Further, in my view this Commission should be slow to offer its judgment as to the fairness, reasonableness or safety of particular workspace arrangements without the issues having been fully and properly ventilated and where there is come certainty as to the particular workspace configuration under question (whether actual or proposed). Those conditions are not met in this case.

Findings and orders

To summarise the findings contained above: 1. Clause 24 does not mandate the provision of a dedicated, enclosed office to all staff specialists, whether on an individual or a shared basis. 2. Clause 24 encompasses the office accommodation to which staff specialists must have access. 3. The office accommodation could extend to an enclosed office, including on an exclusive or shared basis, but need not do so. An "office" can include the broader area in which a workforce might work, which might itself incorporate workspaces in an open-plan configuration. 4. The nature of the office accommodation to which a staff specialist must be given access will be depend on what is reasonably necessary for the staff specialist to undertake the requirements of their position. 5. Any such entitlement could only be determined on a case-by-case basis, taking into account the work performed by the staff specialist and the place at which it is performed. 6. The application by the Ministry of activity based working principles, as described by Ms Partridge, in and of itself need not be contrary to the Award. It follows that to the extent that the Workspace Accommodation Policy is intended by the Ministry to reflect those principles it is not inconsistent with cl 24 of the Award.
It is clear on the evidence that there is, at the very least, a misunderstanding between the parties as to the purpose and effect of the Workspace Accommodation Policy. As noted above, the fact that the document may be said not to fully reflect the Ministry's position as described by Ms Partridge may have contributed to the uncertainty regarding the Ministry's intentions, and the fears or concerns expressed by the staff specialists in their evidence to the Commission. To ensure that the Workspace Accommodation Policy is implemented in a manner consistent with the position taken by the Ministry in these proceedings, it would be preferable that the document more clearly reflect that position.
In particular, it would seem desirable to confirm that no particular option (such as offices dedicated to staff specialists) is necessarily "off the table" when it comes to designing workplaces.
These are normally matters about which I would make a recommendation or recommendations. During the hearing Mr Seck requested the opportunity to be heard on any recommendations that the Commission might be minded to make and I will provide the parties with that opportunity, should they so wish. I also allow for the possibility that the findings set out above may assist the parties to resolve between themselves any outstanding areas of disagreement without the Commission's further involvement.
I make the following orders: 1. Pursuant to s 164A(1)(c) and (d) of the Industrial Relations Act 1996 (NSW) I order that there be no publication of the documents, or of any of the content of the documents, comprising Exhibit R2 to these proceedings. 2. The matter is adjourned to 4 October 2019. 3. Liberty is reserved to the parties to have the matter re-listed on reasonable notice. 4. If that liberty is not exercised by 4 October 2019 the matter will be closed administratively. Damian Sloan Commissioner

Endnotes

Exhibit A2 at [7], Exhibit A7 at [9], Tcpt 22 July 2019 pp 22 (21-26), 84 (44-49) and 89 (1) - 90 (17)
Respondent's Outline of Opening Submissions at [33]
Respondent's Outline of Opening Submissions at [29]
Tcpt 24 July 2019 p 41 (1-21)
Exhibit R3 at [3]
Exhibit A1 at [13]
Exhibit A1 at [19]
Tcpt 22 July 2019 p 24 (38-39)
Exhibit A4 at [9]
Exhibit A4 at [12]
Exhibit A11 at [16] and Exhibit A12 at [28]
Exhibit A9 at [13] and [16]
Tcpt 22 July 2019 pp 5 (39) - 6 (2)
Tcpt 24 July 2019 p 3 (15-24)
Tcpt 23 July 2019 p 45 (16-50)
ibid p 48 (4-25)
Tcpt 23 July 2019 pp 63 (40) - 64 (30)
Tcpt 24 July 2019 pp 8 (36) - 9 (43)
Exhibit A9 at [11] and [12]
Exhibit A2 at [21]
Exhibit A3 at [20]
Exhibit R1 at [77]-[85]
Tcpt, 23 July 2019 pp 59 (27) - 60 (1) 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: 06 September 2019

Industrial Relations Act 1996(NSW)ss 8, 164A, 175

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