Bole v Horton

The questions for determination

1. As the Statement of Agreed and Disputed Facts makes clear, the controversy surrounding cl 32 of the Award requires the determination of the following questions: 1. To whom does the clause apply, and by extension who is entitled to the allowance for which it provides ("Allowance")? Is the clause to be construed as applying only to particular classifications of employees, as the Health Secretary contended, or does it extend to all categories of employees who perform the duties described in the clause, as submitted by the HSU? 2. To what extent is the election in the clause, or ought it to be, subject to any restrictions?

Previous decisions regarding cl 32

1. There have been two single-member decisions of the Commission that have considered cl 32. In Health Services Union NSW v Ministry of Health; re infectious cleaning allowances [2018] NSWIRComm 1009 ("First Decision") Newall C sought to resolve "a dispute about which classification of employee can properly claim and be paid for an allowance provided for in clause 32": at [1]. After summarising the procedural history of the matter, the relevant principles relating to the construction of industrial instruments and the history of cl 32, the Commissioner observed: "23. That history all points in one direction; that the allowance was created expressly to be paid to cleaners who elected to work in areas where infectious patients were to be found, and was then expressly extended by decision of the Commission beyond persons who elected to perform cleaning in those areas to those employees within HREA's coverage required to lift and transport infectious patients, that is, porters and wardsmen. 24. That history is entirely consistent with the ordinary and natural meaning of the words in the clause. The clause was intended to, and does, create an entitlement to an allowance for persons in the classification of cleaner, wardsman and porter, or their equivalent in title in today's award, in circumstances where they elect to clean infectious areas, or relevantly are required to lift and transport infectious patients. The award clause on any reading of its plain words creates no entitlement to the payment of the allowance to security officers, as argued by the notifier, nor to persons employed under the Medical Radiation Scientists (State) Award. Demonstrably it does not extend to clinicians of any sort. That is clear from a range of matters, not least the provisions of the award clause that the staff performing the cleaning were to have clinical concepts explained to them in simple language they could understand. A provision of that nature could not possibly apply to persons who are by the nature of their training and skill aware of those matters. 25. Equally, it is clear on the plain words of the clause, as well as the history, that the clause was never intended to, and does not, provide for payment of an allowance for persons who may be obliged, as a non-elective part of their duties, to clean a piece of equipment, such as, for example, a radiographer. The salary levels paid to clinicians who are required to come into contact with infectious patients or work in areas where they are to be found, or clean equipment used in their treatment, already comprehend the fact that they have no election in the performance of these duties. 26. In this context it is proper to have regard to the fact that the Commission's practice in making awards has consistently been to provide for an allowance, which is by its nature an incidental payment, for performance of tasks outside the employee's usual run of duties, not those which fall within those usual duties: Re Painters (State) Award 1964 AR 204 at 206. An employee who ordinarily as a part of their duty comes into contact with such a patient, has to move or lift them, or has to clean a piece of equipment in an area where such patients are treated is simply not entitled to an incidental allowance for doing so. Again, it is a part of the job for which they are already paid. Conclusion 27. Clause 32, correctly read, provides for an allowance, which is to be found in Table 1 of part B of the Award, to be paid to cleaners who elect to perform cleaning work in areas where special precautions in relation to patients are taken. The allowance has, since 1982, also, by effect of a decision of the Commission, been payable to porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients. The allowance is not payable to any other classification of employee. …"
2. In Ministry of Health v Health Services Union NSW [2018] NSWIRComm 1045 ("Second Decision") Murphy C was called to resolve a dispute, at the centre of which was the question as to whether Patient Transport Officers were entitled to be paid the Allowance. In answering this question in the affirmative, the Commissioner considered at some length the First Decision and made the following observations: "27. The Commissioner's observation, at paragraph 26 of the decision, that an employee who ordinarily, as part of their duty, comes into contact with an infectious patient, has to move or lift them, or has to clean a piece of equipment in an area where such patients are treated, is not entitled to an incidental allowance for doing so as it is a part of the job for which they are already paid, is somewhat perplexing in the context of this matter. Undoubtedly there are Hospital Assistants Grade 1 and 2 and Wardspersons who would only rarely come into contact with infectious patients and be paid the allowance on those occasions. On the other hand, depending on the area of the hospital where the employees are working, there are just as likely to be Hospital Assistants Grades 1 and 2 and Wardspersons who clean in infectious areas, or who assist in the lifting and/or transporting of infectious patients, on a regular, if not daily basis, and are paid the allowance for each shift they work when this occurs. … 31. In my opinion, the Commissioner's reference, at paragraph 27 of his decision, to 'cleaners who elect to perform cleaning work in areas where special precautions in relation to patients are taken', bearing in mind that there is no such classification of employee in any relevant award, and his reference to 'porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients', have to be construed by reference to the nature of the work being performed by employees in the classification under consideration, rather than just by reference to the classification title. … 60. …Clause 32 of the Conditions Award is poorly drafted. No classification of employee is either specified as being entitled to be paid the allowance or, on the other hand, excluded from being paid it. This has led to the past practice of the allowance being paid to employees in classifications which, as Commissioner Newall found, were never intended to be the recipients of it, such as 'clinicians of any sort'. 61. However, putting aside the question of whether PTOs qualify for payment of the allowance for cleaning the patient transport vehicle after it has transported an infectious patient, the undisputed facts are that PTOs lift and transport patients, including infectious patients. The plain and ordinary meaning of the words 'The allowance will also be payable to employees, who, in any shift, assist in the lifting and/or transporting of infectious patients' could not be any clearer. This is precisely what PTOs do. They are entitled to be paid the allowance when they assist in the lifting and/or transporting of infectious patients."
3. Neither the First Decision nor the Second Decision (together, the "Earlier Decisions") was subject to appeal.

Health Secretary

1. The Health Secretary's position may be summarised as follows: 1. The Earlier Decisions properly determined the scope of application of cl 32 - that is, it is limited in its application to the particular classifications identified in those decisions. 2. The Full Bench should not adopt an interpretation of cl 32 inconsistent with the Earlier Decisions for reasons including: 1. the principle of comity. The Commission ought not disturb interpretations it has recently provided unless they are clearly wrong; 2. to do so would be to permit the HSU to re-litigate the arguments which were unsuccessful before Newall C in the proceedings resulting in the First Decision; and 3. it would be tantamount to permitting the HSU to appeal the First Decision, not having previously done so. 1. In any event, there is no basis on the evidence to expand the application of cl 32 beyond the classifications identified in the Earlier Decisions. 2. It would be detrimental to the public interest to adopt the construction for which the HSU contends. Even were the Commission to confine any "extension" of the clause to the classifications occupied by the HSU's witnesses, it would add up to $3.8 million per annum to employee-related costs. 3. Such additional costs would not be permitted by cl 6(1)(b) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014. 4. For these reasons, on the question of the application of cl 32, the Award should contain a "defined and clear list of classifications who are entitled to claim the allowance" so as to "prevent such disputes from continuing to arise".1 5. On the question of election, "the concept of employees retaining an 'election' not to perform work is somewhat outdated and warrants updating". [1] This calls for the imposition of "sensible limits" [2] in the form of specifying that the election would not be available where any refusal to undertake work would be unreasonable having regard to public health considerations.
2. The Health Secretary submitted that the insertion into the clause of a list of classifications to which it applies is permitted in a review under s 19 of the Act as it would be consistent with the Earlier Decisions. Similarly, the imposition of restrictions on the right of election would have the effect of "modernising" the clause and again be permitted in a review under s 19.
3. In the alternative, and in the event that the Commission considers that the changes to the Award sought by the Health Secretary cannot be made through an award review pursuant to s 19, on 30 June 2020 the Health Secretary filed an application to vary the Award pursuant to s 17 of the Act to otherwise permit the variations sought ("Variation Application").
4. Having regard to these matters the Health Secretary seeks to have the existing cl 32 be replaced with the following: 32. Infectious Cleaning i) An Employee in the classifications listed in this clause who during a shift: a. performs cleaning duties using transmission based precautions where an infectious patient is being nursed; and/or b. undertakes lifting and/or transporting duties using transmission based precautions where an infectious patient is being nursed; is eligible to claim an allowance in respect of that shift as set out in Item 48 of Table 1 - Other Rates and Allowances of Part B, Monetary Rates per shift or part thereof, provided that an employee who ordinarily as a part of their duty comes into contact with an infectious patient, has to move or lift them, or has to clean a piece of equipment in an area where such patients are treated is not entitled to an incidental allowance for doing so. ii) The allowance is payable once per shift regardless of whether more than one occasion of infectious cleaning duties or lifting and/or transporting of an infectious patient is performed. iii) For the purpose of this clause, transmission based precautions are those that are declared by a clinical prevention unit or nursing/medical staff to be required for infectious patients in addition to standard precautions as determined in NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time. iv) In respect of employees covered by subclause (i)(a) only, the preferences of eligible employees in relation to undertaking the required cleaning work are to be taken into account by the employer. In the interests of public health considerations, an employee cannot unreasonably refuse to undertake the required work. v) This clause shall only apply to: a. Hospital Assistants Grade 1 and 2; b. Wardspersons (including Senior Wardspersons and Chief Wardspersons), c. Health and Security Assistants; d. Patient Services Assistants Western Sydney; e. Support Services Officers Northern Sydney and Western Sydney; f. Patient Support Assistants Central Coast; g. Patient Transport Officers

HSU

1. The HSU's case was premised on the assertion that there is ambiguity and confusion arising from the current terms of cl 32, which has not been resolved by either of the Earlier Decisions. Variations to the provision pursuant to s 19 are required "to modernise the clause, remove the confusion, and make the clause operate in a contemporary way". [3]
2. The ambiguity or confusion asserted by the HSU was said to be reflected in the evidence of its witnesses in the proceedings. A number of these witnesses deposed as to inconsistencies in the approach taken to different classifications of employees, all of whom were said to be required to lift and transport infectious patients (including deceased patients) or perform infectious cleaning, but only some of whom receive the Allowance.
3. The HSU submitted: 1. Clause 32 contains no restrictions in terms of the classifications that are entitled to the Allowance. All that is required to trigger the entitlement is that the relevant duties are performed. Those duties are the performance of "cleaning duties in infectious areas where barrier nursing is being carried out" or "assisting in the lifting and/or transporting of infectious patients". 2. It follows that the clause should be varied so as to make it clear that all employees to whom the Award applies are entitled to receive the Allowance if they perform the relevant duties. 3. This variation is consistent with the evident purpose of the existing clause in that it provides payment of the Allowance to employees who accept the risk and/or discomfort associated with performance of duties that involve an infectious area or infectious patient. It is also consistent with the context of the Award as a whole, in that other provisions of the Award which provide allowances to employees expressly identify when certain classifications are excluded. 4. The clause should retain the (unqualified) provision that employees "are to be given the option of working in the infectious area".
4. The HSU opposed the amendments to cl 32 proposed by the Health Secretary. The HSU submitted that the clause proposed by the Health Secretary: 1. was inconsistent with the ordinary, grammatical meaning of the words of the existing clause, in that: 1. the Health Secretary's proposed clause would remove the requirement that "employees are to be given the option of working in the infectious area"; and 2. the existing clause does not restrict access to the entitlement to certain classifications; 1. was inconsistent with the context of the existing clause, when read with other provisions of the Award, because other provisions which provide allowances to employees explicitly identify where certain classifications are excluded; 2. was inconsistent with the purpose of the existing clause, which is to encourage the carrying out of work in infectious areas safely and without disputation or disruption, and to provide additional payment for employees who accept the risk and discomfort associated with that work; 3. was inconsistent with the treatment of awards as beneficial instruments with a long tradition of generous construction, in that it would deny an entitlement that is open to employees on the plain words of the clause; 4. would exclude certain classifications of employees from claiming the Allowance in an unfair manner, and as such be inconsistent with the Act's object to provide a framework for the conduct of industrial relations that is fair and just (s 3(a)); 5. would continue to cause disputes between employees and managers about the requirement to perform work in infectious areas in the midst of the COVID-19 pandemic; 6. would represent an inappropriate way to regulate modern workplaces comprised of multiskilled employees who undertake a varied and expanding range of duties, and as such be inconsistent with the Act's object to facilitate efficient and productive regulation of employment through awards (s 3(e)); and 7. was inconsistent with both of the Earlier Decisions.
5. The HSU proposed the following provision to replace the current cl 32: 32. Infectious work a. All employees that this Award applies to are entitled to be paid the allowance identified in this clause for performing the duties set out below. b. When an employee: i. performs cleaning duties where an infectious patient is being nursed; and/or ii. assists in the lifting and/or transporting of an infectious patient; the employee shall be paid the allowance set out in Item 48 of Table 1 - Other Rates and Allowances of Part B, Monetary Rates. c. The allowance is payable once per shift, regardless of whether the employee performs the duties set out at subclause (b.) on more than one occasion during the shift. d. For the purposes of this clause, an infectious area or patient is one for which additional precautions or transmission-based precautions (or equivalent precautions) are determined to be necessary in accordance with NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time. e. Employees are to be given the option of working, or not working, in an infectious area. f. Employees who may be asked to perform work in infectious areas shall be given training in infection control procedures, in accordance with NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time.

Legal principles

1. Section 19 of the Act provides: 19 Review of awards (1) The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years. (2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards. (3) The Commission must take account of the following matters in the review of awards - (a) any decision of the Commission under Part 3 or any other test case decision of the Commission, (b) rates of remuneration and other minimum conditions of employment, (c) part-time work, casual work and job-sharing arrangements, (d) dispute resolution procedures, (e) any issue of discrimination under the awards, including pay equity, (f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards, (g) any other matter relating to the objects of the Act that the Commission determines. (4) The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned. (5) During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed. (6) The Commission is to make such changes to awards as it considers necessary as a result of a review.
2. The approach to be taken by the Commission in reviews under s 19 has been considered in a number of decisions. The leading authority is Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38; [1998] NSWIRComm 661 ("Principles for Review of Awards"), in which, relevantly for present purposes, the Full Bench (at 44-46) set out the following principles: 1. The word "modernise" in s 19(2) is used with its ordinary meaning, and is to be understood in its statutory context as comprehending both bringing the award up to date and making it contemporary. 2. The concept of "modernising" awards comprehends an obligation to ensure that the awards are made consistent with the current statutory framework. 3. The process of making or varying an award under ss 10 and 17 of the Act respectively must not be confused with the review process under s 19. (We note parenthetically that, relying on Principles for Review of Awards, the Full Bench in Re Hotel &c Employees (State) Award [2001] NSWIRComm 284 at [40] observed that s 19 is neither an alternative to, or a substitute for, applications under s 10 and s 17 of the Act.) 4. However, nothing precludes an application under s 10 or s 17 being heard in conjunction with s 19 proceedings, although the Commission may be cautious about requiring proceedings to be so conducted if a party is opposed to such a course. 5. A s 19 award review is not a mechanism for an appeal from earlier decisions made by the Commission in respect of an award, a means to overcome the consequences of earlier bargains made between the parties to an award or a device available to an award party to avoid the proper burdens involved in bringing a contested application to the Commission for the making or variation of an award in the normal way. 6. The Commission is not given a general discretion in s 19 to insert into an award being reviewed any other conditions which the Commission might consider a 'modern' award should contain. The review directed by s 19 concerns the provisions of existing awards. Unless properly arising from the matters specified in s 19 itself, during a review the Commission is not at liberty to insert into awards other conditions not already contained in them.
3. In Crown Employees (Public Service Conditions of Employment) Award 1997 [2001] NSWIRComm 22 at [19] Schmidt J observed that while s 19 "requires many things, it does not require a review that the Award has achieved fair and reasonable conditions of employment in practice, having regard to its operation since it was made".
4. Both parties contended that the changes they sought to cl 32 could be made under the auspices of a s 19 review. However, as noted above at [10] above and in apparent regard to the principles outlined at [18(3)] above, the Health Secretary filed the Variation Application to allow for any changes to be made that the Commission considers could not be made pursuant to s 19.
5. In respect of the Variation Application, s 17 empowers the Commission to vary or rescind an award, provided that it may only do so after the nominal term of the award if it considers that it is not contrary to the public interest to do so: s 17(3)(d). The nominal term of the Award has expired. The power to vary awards must be read in conjunction with s 10, which empowers the Commission to make awards "setting fair and reasonable conditions of employment for employees".
6. The principles to be applied by the Commission when making or varying awards were most recently summarised in Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040. At [24]-[31] the Full Bench considered whether in making or varying awards it should have regard to the Commission's Wage Fixing Principles, most recently re-affirmed in State Wage Case 2019 [2019] NSWIRComm 1065. It determined that it should.
7. We observe parenthetically that the decision in Applications for Variations to Crown Employees (Police Officers - 2017) Award was handed down on 3 May 2021, after the hearing in these proceedings. However, the Full Bench's consideration at [24]-[31] was informed by and followed the previous Full Bench decision in Application for Crown Employees (Public Sector - Salaries 2020) Award and Other Matters (No 2) [2020] NSWIRComm 1066, which was handed down 1 October 2020.
8. The Full Bench further observed: "32. The approach that the Commission should adopt in making or varying awards has been considered by the Full Bench in numerous decisions. The principles which arise from those cases to which we have had particular regard are as follows: (1) Whether the conditions of employment in the award are fair and reasonable is a primary test for evaluating whether an award should be altered: Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331 at [164]. (2) Awards of the Commission are presumed to set fair and reasonable terms and conditions of employment: City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 at [12]. (3) The terms "fair" and "reasonable" in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them: City of Sydney Wages/Salary Award 2014 at [19]. (4) In a contested case, the onus falls on the applicant to make out a case for an alteration to an award: Re Pastoral Industry (State) Award (2000) 104 IR 168; [2000] NSWIRComm 27at [77]. … (7) The onus borne by a party was described by Kite AJ in Transport Industry - General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3 in these terms: '34. It has long been recognized that Industrial Tribunals are in a different position to the general courts. The duty of the Commission is to make an award or determination which prescribes fair and reasonable rates and conditions. In doing so the Commission is not bound by the rules of evidence or to act in a formal manner but "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." See s 163 (1)(c) of the Act. 35. The various authorities referring to the "onus" born[e] by a party are to be understood in that context. There must be information before the Commission which allows it to be satisfied that the determination or award, if made, will provide just and reasonable rates and conditions. The assessment of the adequacy of that material will vary according to the nature of the case, including the degree of consent, before the Commission: see In re Butchers, Wholesale (Cumberland) Award 1971 AR 425 especially at 437- 440.' (Emphasis in original)"
9. Finally, we observe that, relevantly for these proceedings, s 146(2) of the Act requires that when exercising its functions the Commission must take into account the public interest and, for that purpose, it must have regard to the objects of the Act. Those objects are set out in s 3 which relevantly provides: 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, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.
10. The legal principles outlined above have informed our decision in these proceedings.

The Earlier Decisions

1. Before turning to the proper construction of cl 32 and what, if any, changes ought to be made to it, we should address the import of the Earlier Decisions on our determination in these proceedings. They are at the heart of the Health Secretary's case. Relying on the First Decision, the Health Secretary submitted that the performance of "cleaning duties in infectious areas where barrier nursing is being carried out" was confined to "cleaners". As there is, and was at the time of the First Decision, no such classification in the Award, the Health Secretary has purported to identify classifications that most closely align with "cleaners". A similar task has been undertaken in relation to porters, wardsmen and patient transport officers, being those found in the Earlier Decisions as being required to "assist in the lifting and/or transporting of infectious patients".
2. Without going into the reasoning in the Earlier Decisions, there are three general observations to make in respect of them. First, neither of the Earlier Decisions is a decision of the Commission under Pt 3 of the Act. The Full Bench is not obliged by s 19(3)(a) to take those decisions into account. It may of course choose to do so in the exercise of its discretion.
3. Second, as stated in Principles for Review of Awards, the s 19 review process is not a mechanism for appeal from earlier decisions of the Commission. We do not approach either of the Earlier Decisions from the perspective of conducting some quasi-appeal from them. This is not to say that the Full Bench might not disagree with the approach to cl 32 taken by either of the Commissioners in the Earlier Decisions.
4. Third, and following from this, it is trite to observe that the Full Bench is not bound to follow either of the Earlier Decisions, both being single-member decisions. However, the Health Secretary submitted that "the interests of comity compel the Full Bench to adopt an interpretation that is consistent with the Previous Decisions". [4] That submission overstates the effect of the principle of comity.
5. The principle was described by Finn J in Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375 at [1] as providing that "a decision of another judge that is not distinguishable will be followed unless it is thought to be clearly wrong". In Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458 the Full Bench observed: "17. Consistency and uniformity in decision making is a fundamental ingredient of the maintenance of the rule of law. It has underpinned the relationship between the Court of Appeal and the Commission and the Court Session. As was observed by Lord Diplock in The Abidin Daver [1984] AC 398 at 412, albeit in a markedly different context, a failure to ensure judicial comity 'is a recipe for confusion and injustice'. 18. The concept of judicial comity is used in a number of quite different contexts: from the antithesis of 'judicial chauvinism' in choice of law jurisprudence to the duty (albeit not of complete obligation) on a judge (or court) not to depart from a decision of a court of similar or equal rank unless, after earnest consideration and for good reason, he or she is convinced the decision is plainly wrong…"
6. These passages highlight two matters. Comity does not involve "compulsion". It informs (or should inform) the exercise by the Commission of its jurisdiction, but does not impose a duty of "complete obligation". Next, it does not extend to the Commission adopting the approach taken in earlier decisions if they are considered to have been wrongly decided.
7. Having considered these matters, the task of the Full Bench is to form its own view as to the proper construction of cl 32. Only in doing so can it determine, having given "earnest consideration" to the question, whether or not to follow the approach taken in the Earlier Decisions.

The proper construction of cl 32

1. 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: s 175 of the Act. The Award is an industrial instrument: s 8 of the Act.
2. The principles of award construction are well settled. They were set out by Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, a decision which has been cited with approval in many subsequent decisions of the Commission. Having examined numerous authorities, his Honour concluded as follows: "115. Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows: (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)."
3. His Honour went on the cite with approval several authorities to the effect that awards should receive a generous construction, and reproduced in particular the following passage from Kucks v CSR Ltd (1996) 66 IR 182 at 184: "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."
4. His Honour concluded: "142. Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. 143. The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided, as discussed below (and earlier in relation to the extrapolation of principle), such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). 144. Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language."
5. As will become clear, it is useful to have regard to the context in which cl 32 came to be inserted in the Award. As observed further by Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury: "127. Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. 128. In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible."
6. In the present proceedings the Health Secretary adduced evidence as to the genesis of cl 32. As it will be necessary to refer to the history of the clause, we summarise that evidence as follows: 1. On 25 July 1978 the Health and Research Employees' Association of Australia ("HREA") wrote to the Secretary of what was then the Health Commission of New South Wales ("Health Commission"), raising the following concern: "For some considerable period of time it has been this Association's attitude that Domestic and Catering Staff should be excluded from the room or area in which a patient, suffering from an infectious disease, is being treated. The Association has maintained that these employees have not been trained in the necessary procedures to avoid fully the dangers of infection, and the wearing of overgarments and masks is no guarantee that they will be able to avoid these dangers. The Association has further maintained that the total care of these patients belongs to the medical and nursing staff." 1. In a circular issued by the HREA on 21 August 1979 it was stated: "The State Council has resolved that a ban be placed on cleaning in areas where there are infectious patients and on disinfection of such areas. … The Association's policy is that it is not part of the duties of the current classifications in our awards to perform cleaning and disinfection in such areas. It has never been part of the requirements for appointment to our classifications that our members be prepared to undertake training in avoiding cross-infection, and in avoiding the risk of infection to themselves; nor that they be prepared to undertake regular medical checks and medical procedures to protect them against infection. Nor do the rates of pay take such things into account." 1. On or about 4 September 1979 the Health Commission notified the Industrial Registrar of a dispute concerning "a direction by the Association to its members not to clean areas at public hospitals in New South Wales where there are 'infectious' patients." 2. On 6 September 1979 a compulsory conference was conducted before McClelland J. The transcript of proceedings records Mr Dunk for the HREA stating his understanding that "female domestic staff, male porter cleaners, wardsmen and surgical dressers" were involved in the dispute. 3. In a letter dated 15 November 1979 the Health Commission informed the HREA that it was "prepared to agree to an allowance…being paid to employees (other than Attendants, Institute of Tropical Medicine), who may be required to, and in fact, carry out cleaning work in infectious areas where barrier nursing is being carried out". The letter also reflected the agreement of the Health Commission to provide training in hygienic techniques, including an awareness of infectious diseases, "for the benefit of cleaning and related staff who may be required to carry out cleaning work in infectious areas". 4. In a letter in response dated 10 January 1980 the HREA accepted the offer made by the Health Commission "on the basis that members be allowed to elect to work in these areas and not be required to do so". 5. On 12 May 1980 the Health Commission issued a circular numbered 80/145 ("Circular") which stated, in part: "Following discussions with the Health and Research Employees' Association, the Commission has determined that an allowance of $1.50 per shift or part thereof is to be paid to employees who elect to and in fact perform cleaning duties in infectious areas where barrier nursing is being carried out. This allowance shall not apply to the Attendance, Institute of Tropical Medicine. … Employees engaged in cleaning duties are to be given the option of working in the infectious area. In the event of employees declining to work in the area, hospitals are requested to seek guidance from the Commission. The election referred to above is not to apply to employees working in designated infectious areas such as the Marks Pavilion at Prince Henry Hospital." The Circular went on to detail the "written instructions on hygiene techniques and infection" that Hospitals were "requested" to provide "to employees who may be liable to work in infectious areas". 1. On or about 3 June 1980 the HREA applied for a new award to be titled "Hospital Employees' Conditions of Employment (State) Award" ("HREA Application"). Clause 42 of the proposed award reflected the terms of the Circular. 2. By letter dated 1 June 1981 the HREA requested that the Health Commission extend the terms of the Circular to Wardsmen and Porter/Cleaners who were required to enter infectious areas, change equipment, or to lift and transport infectious patients. There followed an exchange of correspondence between the HREA and the Health Commission over several months as to whether workers in this category should be entitled to the allowance referred to in the Circular. Through that correspondence the relevant category was consistently referred to as "Porters/Cleaners" (which became Hospital Assistants Grade 2), who were involved in transporting and lifting infectious patients, or those suspected of being infectious. 3. The HREA Application came before Conciliation Commissioner Cansdell on 13 May 1982. The submissions put by the HREA included the following: "Now the Association's view is that where the employee is required to come into the room and perform any work at all, whether it be cleaning work or actually handling of the patient, the allowance that has been agreed to should apply in those instances. Now we wrote to the Health Commission seeking their views on this matter and the upshot of it was that the Commission advised the Association that in their view classifications such as porter/cleaner could be required to enter the room of an infectious patient and assist with the lifting of the patient and yet were not entitled to any allowance in that case. … In view of the Commission's attitude Mr Commissioner we seek now to amend the application as it relates to clause 42 to make it clear that not only do cleaners who come into these areas to clean that they receive the allowance but also that other employees who perform any work at all in these areas receive the allowance as well and I would seek to hand up that amended application. … I think it would be agreed in the correspondence that I have read indicates that it is a fact of life that staff such as porters, porter/cleaners who are now hospital assistants grade 2 can be required on occasions to assist in the lifting of patients with infectious diseases. …There is no greater disability being experienced by the person cleaning the room, in fact the disability would be in our submission less than the person who is assisting with the lifting and the transporting of the infectious patient, so we say that not only should the award reflect the current situation as it applies to cleaning in infectious areas but that situation should be extended to cover all employees covered by this award who are required to come in and perform any work at all in those particular areas. We say that this is the only reasonable attitude to take view of the Health Commission's agreement that the allowance should be paid for cleaning." 1. Conciliation Commissioner Cansdell handed down his decision in respect of the HREA Application (and a related matter) on 9 September 1982. It included the following: "Clause 41: Removal of Body Waste & Clause 42: Cleaning In Infectious Areas The parties are directed to prepare provisions for insertion under these headings based on the contents of exhibit 14, being Health Commission circular No. 80/145. The provisions relating to 'cleaning' in infectious areas will also apply to employees required to lift and transfer infectious patients."
7. The provision that became cl 42 of the Hospital Employees' Conditions of Employment (State) Award as a consequence of Conciliation Commissioner Cansdell's decision was the precursor to the current cl 32 of the Award. There have been no substantive changes to the terms of the provision since it was first drafted.

Election

1. It is convenient to consider first the nature of the election contained in cl 32. Our findings in this regard inform, in part, our determination as to the application of the clause.
2. On its terms, and in the context of the Award as a whole, it is not possible to construe cl 32 as conferring anything other than an unfettered discretion on employees to elect not to work in "infectious areas". Regarding the terms of the clause, we observe: 1. There is nothing in the language of the first paragraph of the clause - namely, "employees who elect to and, in fact, perform cleaning duties" - to suggest any limitation on the right of election. 2. This is also reflected, almost by way of emphasis, in the opening words of the second paragraph of the clause, which refers to employees being given the option of working in the infectious area. 3. There is no consequence for an employee declining to work in the infectious area; all that the clause provides is that hospitals "seek guidance from the employer".
3. The terms of the Award as a whole support the conclusion that the election in cl 32 was not intended to be conditional or fettered. We observe: 1. Nothing in cl 32 operates to compel, or to permit the employer to compel an employee to work in an infectious area. This is to be contrasted with many provisions in the Award which provide that an employee may be "required" to perform particular duties or to undertake work in a particular way. [5] 2. The Award contains numerous provisions conferring on employees a right of "election" in a number of contexts. Many of these provisions allow an employee to elect how they will receive certain benefits arising under the Award, and are generally unfettered. In several instances, however, the election is expressly stated to be subject to the employer's consent or agreement. [6]
4. The absence of any requirement on employees to perform particular duties, or any qualification on the right of election conferred on employees strongly suggests - having regard to the Award as a whole - that the clear and unambiguous language in cl 32 was intended.
5. Further, the construction of the election in cl 32 as being unfettered is consistent with the context in which the clause came to be created, referred to at [39] above, noting in particular the letter referred to at [39(6)] and the Circular.
6. A question arises from the amendments to cl 32 proposed by the Health Secretary whether the election is limited to employees performing cleaning duties, but not those assisting in the lifting and/or transportation of infectious payments. We do not see that the clause calls for such a distinction. If an "infectious area" is one in which transmission-based precautions are required, it must in context extend to any area in which an employee is required to take those precautions when lifting or transporting a patient.

To whom does the clause apply?

1. The HSU led evidence as to the work performed by employees in the positions of Forensic Post Mortem Technician, Post Mortem Assistant, Mortuary Clerk, Motor Vehicle Driver, Operations Assistant, Patient Transport Officer, Security Supervisor, Sterilising Technician, Surgical Dresser and Chief Wardsperson. It was claimed that all were entitled to the Allowance based on the duties they perform, but that only two received it (Patient Transport Officer and Chief Wardsperson). Some evidence was led by the Health Secretary in reply as to the extent to which these employees performed the duties outlined in cl 32 or, in any event, whether they should be entitled to payment of the Allowance given the particular requirements of their positions.
2. We observe that cl 32 does not presently contain a list of classifications of employees to which it applies. It does not expressly exclude any classifications from its coverage. It does not on its terms refer to particular classifications of employees at all.
3. It is significant that although in the documents described at [39] above the parties made reference to particular classifications or categories of employees, they chose not to define the operation of the clause by reference to those classifications but by reference to the performance of certain duties. If proper regard is had to the approach which the drafters of cl 32 elected to take, it can be inferred that there was no intention for the clause to be limited in its operation to particular classifications.
4. The terms of cl 32 are to be contrasted with other provisions of the Award which expressly exclude or include certain classifications of employees from their coverage. [7] We note in particular cl 12 of the Award, which similarly to cl 32 provides for the payment of allowances in particular circumstances. In a number of instances cl 12 expressly states the employees to whom the relevant allowance will or will not be payable.
5. In this context, the absence in cl 32 of any inclusion or exclusion by reference to classification argues against the Allowance being payable only to particular classifications of employees, regardless of whether employees in other classifications might perform the duties to which the clause refers.
6. It follows that it would be possible to construe the clause as being unlimited in its operation, in the manner for which the HSU contended. However, in light of all of the evidence we do not consider that such a construction would give effect to the intention of the clause. We have reached this view for several reasons.
7. First, the nature of the election in cl 32 is relevant to a consideration of the scope of the clause. The unfettered right of an employee to elect not to perform work in infectious areas or involving infectious patients is difficult to reconcile with situations where this may be an unavoidable, or at least anticipated requirement, of an employee's position.
8. To use an example: Lisa Bilton, who was called to give evidence by the HSU, is a Forensic Post Mortem Technician at the Wollongong Hospital. She deposed that a deceased person may carry an infectious disease. Her duties involve cleaning equipment and the mortuary after a post mortem, which is generally performed by hand whilst wearing personal protective equipment. However, she stated that "all patients are treated as though there is a risk of unknown infection". [8] This is reflected in Ms Bilton's position description which contained the following entry under the heading "Key Accountabilities": "Perform cleaning duties in the mortuary and associated areas according to established rules and practices, including strict adherence to cleaning restrictions for deceased persons with a notifiable disease."
9. This is consistent with the evidence of Michael Symonds, who was called to give evidence by the Health Secretary. He is the Executive Director, Forensic and Analytical Science Service at NSW Health Pathology. He deposed that the "nature of the role [of Forensic Mortuary Technician] is such that exposure to biological hazards such as body fluids, bacteria, infectious diseases is constant and inherent to the role". [9]
10. Both the position description and the practices in the mortuary assume the presence of an infectious disease, and the taking of requisite precautions. The role calls for the performance of cleaning duties within that environment. The need to work in a potentially infectious environment is therefore inherent in the duties required of the position. This is at odds with a right to elect not to perform that work.
11. Without traversing the evidence in detail, similar comments might be made about the positions of Mortuary Clerk and Sterilising Technician.
12. Second, and consistent with the first point, the Allowance is in the nature of a disability payment. As Newall C observed in the First Decision at [26], "the Commission's practice in making awards has consistently been to provide for an allowance, which is by its nature an incidental payment, for performance of tasks outside the employee's usual run of duties, not those which fall within those usual duties".
13. The nature of the Allowance and the right of an employee to elect not to perform the relevant duties in infectious areas or involving infectious patients lead to the conclusion that the clause was not intended to apply in circumstances where the performance of those duties is an inherent requirement of a particular classification. For this reason, but having regard to the totality of the evidence including the genesis of the provision, we agree with the conclusion reached by Newall C in the First Decision at [24] that cl 32 "does not extend to clinicians of any sort". But this is not a complete answer to the question before the Commission.
14. It is necessary to consider the nature of the duties contemplated by the clause.

Cleaning duties

1. Clause 32 does not refer to "cleaners"; it refers to employees who "perform cleaning duties". In the context of the dispute between the parties the question is whether this is a distinction with a difference.
2. The word "duties" appears throughout the Award and its meaning varies according to the context in which it appears, from a description of the substantive requirements of a position through to tasks that an employee may be called on to perform from time to time. It follows that the use of the term "cleaning duties" is not of itself determinative.
3. However, in the documents referred to at [39] above, reference was made variously to "domestic and catering staff", "cleaning and related staff" and "cleaners", and to employees who "clean areas" or engaged in "cleaning the room". In context, we have concluded that the reference to a person "performing cleaning duties" is to one in a position in which cleaning is the substantial if not predominant responsibility. It does not encompass cleaning tasks that are incidental to, even if required as a consequence of, an employee's core responsibilities.
4. The HSU's evidence included a description of the cleaning tasks undertaken by employees in all of the positions listed at [47] above, other than for Security Supervisor which was not said to involve any cleaning work. On our analysis, none of these classifications "perform cleaning duties" of the kind or in the manner anticipated by cl 32.

Assisting in the lifting and/or transporting of infectious patients

1. It is clear from the evidence that there is some confusion as to what is meant by the "lifting and/or transporting" of patients. There also appears to be some inconsistency in the approach adopted by the Health Secretary, notwithstanding the Earlier Decisions.
2. As can be seen from the history outlined at [39] above, the extension to cover employees who "assist in the lifting and/or transporting of infectious patients" was made in apparent resolution of a claim made by the HREA on behalf of wardsmen, porters and porters/cleaners. The duties contemplated by the phrase must be seen in that context.
3. However, as we have already observed, the drafters of cl 32 did not define its operation to particular classifications. Proper regard must be had to the apparent decision to determine the application of the clause by reference to duties.
4. Mario Bustamante is a Chief Wardsperson at the Prince of Wales Hospital. He described his duties as follows: [10] "4. This includes: Assisting to lift patients out of bed and onto a commode for showering or other personal health tasks; Using lifting equipment to lift patients out of bed; Transporting patients within the ward, such as to the bathroom; and Transporting deceased patients to the mortuary."
5. Michael Doyle is a Surgical Dresser, also at the Prince of Wales Hospital. He described his duties as follows: [11] "3. In this role, I perform a duty such as: Assisting to lift patients move within the ward so that they can be taken to the toilet or the shower. This includes pushing patients in a wheel chair [sic]; Grooming and cleaning patients; Changing linen; Preparing patients for surgery, such as by shaving them; Turning patients in bed; Transporting deceased patients from the ward or theatre to the mortuary on a trolley; Cleaning and disinfecting equipment used to lift, transport and shower patients; and Cleaning within the mortuary."
6. Gregory Frost is an Operations Assistant at Orange Base Hospital. He deposed: [12] "7. After I transferred to OBH, the nature of the work was different. At OBH, Operations Assistants transport all patients who need to be transferred from the wards to theatres and from theatres back to the wards. This includes patients that we are advised are infectious. … 11. There is no difference between what we do in moving patients and what would be done by a Wardsperson, Porter or Patient Transport Officer when moving the patient from the ward to theatre. However, once the patient is in the theatre only an Operations Assistant would be required to physically handle a patient moving them and positioning them onto the operating table."
7. There is a clear overlap in the duties performed by Mr Doyle and Mr Frost on the one hand, and those performed by Mr Bustamante. They can all be said to be involved in the transportation and/or lifting of patients. However, only Mr Bustamante receives the Allowance, although Mr Doyle and Mr Frost had received payment of the Allowance until 2018.
8. As a further comparison, Rodney Arrow is employed as a Patient Transport Officer in the Western NSW Local Health District. He described his work as involving "the transport of patients between NSW Health facilities, or NSW Health facilities and aged care facilities". [13] He stated that he receives payment of the Allowance on any day that he is required to transport an infectious patient.
9. By contrast, Philip Swain is a Motor Vehicle Driver employed in the Orange Health Service. He described his duties as including the transportation of patients which can include the "need to pick up and drop off infectious patients to facilities across the [Orange] health service for treatment". [14] He does not receive payment of the Allowance, although he did so until March 2018.
10. Daniel Muscat is the Security Supervisor at Royal North Shore Hospital. He deposed that Security Officers, including Security Supervisors, "are regularly required to assist to lift and/or transport patients", including by "driving patients in a vehicle from the Emergency Department to the Drug and Alcohol Building", "assisting to transport patients around the hospital" and "escorting patients who have been sectioned within the hospital". [15] He stated that Security Officers can also be called on to assist in the transportation of patients who are known or suspected to have COVID-19. Mr Muscat does not receive the Allowance.
11. It is clear on the evidence that Surgical Dressers and Operations Assistants might perform duties similar to those of a Wardsperson. A Security Officer may similarly assist in the transportation of an infectious patient around a health facility. A Motor Vehicle Driver or a Security Officer might perform duties similar to those of a Patient Transport Officer. In each case the employee is assisting in the lifting and/or transportation of a patient. It is of no consequence that these duties may be performed less frequently in some classifications than others. Rather, it is consistent with an allowance being paid for that work.
12. It is difficult to justify why some, but not other, classifications would be entitled to the Allowance, based solely on those classifications without regard to the nature of the duties they perform. This is made all the more inequitable when regard is had to the fact that the work must entail working in an infectious area and/or with an infectious patient, necessitating the use of transmission-based precautions.
13. It would be possible to infer from the fact that Mr Doyle, Mr Frost and Mr Swain received payment of the Allowance prior to 2018 that the Health Secretary adopted a literal approach to the application of the First Decision, but paid no regard to the observations Murphy C in the Second at [31], reproduced at [6] above, that the categories of workers identified in the First Decision (and we would add, by extension, the Second Decision) as being entitled to the Allowance "have to be construed by reference to the nature of the work being performed by employees in the classification under consideration, rather than just by reference to the classification title".
14. We agree with the observations of Murphy C. We respectfully disagree with the conclusions of Newall C at [27] of the First Decision that the Allowance "is not payable to any other classification of employee" other than cleaners, porters or wardsmen (or their equivalent classifications in the Award).
15. For completeness we observe that the HSU led evidence from mortuary employees to the effect that they are often called on to move cadavers in and around the mortuary, including on and off trolleys. Some of the deceased patients may have been, and could remain, infectious. In relation to this evidence, we repeat our observations at [56] above. Further, in the context of the duties of mortuary employees as a whole we do not regard this work as reflecting the type of duties described at [66]-[74] above so as to amount to the "lifting and/or transportation" of patients that cl 32 was intended to capture.

What changes ought to be made to cl 32?

1. We agree also with the observation by Murphy C at [60] of the Second Decision that "Clause 32 of the Conditions Award is poorly drafted". It is necessary that its terms be clarified so as to avoid further confusion and disputation.

Changes that are uncontroversial

1. We can deal briefly with two changes to cl 32 on which the parties agree. First, as stated in par 17(b) of the Statement of Agreed and Disputed Facts, it is accepted that the term "barrier nursing" is obsolete. The parties agree that the term should be replaced with "transmission-based precautions", which is the closest current terminology to barrier nursing.
2. Second, cl 32 in its current form requires the employees to whom it applies to be given "written instructions on hygiene techniques and infection" and details the matters which those instructions must include. The HSU contended that while the clause should require that employees to whom it applies be given training in infection control measures, it is unnecessary to set out the detail of that training in the clause. The HSU's proposed cl 32(f) was intended to address these issues.
3. The amended cl 32 proposed by the Health Secretary contained no provision in relation to training. However, at the hearing of this matter the Health Secretary stated that she was "happy for the clause to include some obligation to train employees in relation to infection control". [16] As the existing cl 32 already imposes such an obligation, this is hardly a concession. In any event, no opposition was raised by the Health Secretary to the HSU's proposed cl 32(f).
4. We are satisfied that both of these changes are properly to be made in the context of the s 19 review. Each can be described as "modernising" the Award within the meaning of s 19(2) and otherwise falls within the matters which s 19(3)(f) obliges the Commission to take into account.

Application of the clause

1. As stated, the list of classifications which the Health Secretary seeks to have inserted into cl 32 represents a literal application of the Earlier Decisions, confined to the classifications found in those decisions to be entitled to the Allowance. For the reasons already stated, that approach would not reflect the proper construction of the clause.
2. We also observe that the Health Secretary's proposed cl 32 would limit entitlement to the Allowance to situations where the relevant duties were performed "using transmission-based precautions where an infectious patient is being nursed". Whether intended or not, this would potentially limit the circumstances in which employees required to transport patients could claim the Allowance, even if it entailed the use of transmission-based precautions. That limitation does not properly arise from the language of cl 32.
3. Similarly, the HSU's contention that the clause applies to all employees covered by the Award cannot be accepted. Not all classifications will perform the duties giving rise to the entitlement to the Allowance.
4. To reiterate the conclusions we have reached above: 1. the application of cl 32 and the entitlement to the Allowance must be determined by reference to the duties to which the clause refers; 2. the performance of "cleaning duties" is a reference to a role for which cleaning is the substantial if not predominant responsibility. It does not encompass cleaning tasks that are incidental to, even if required as a consequence of, an employee's core responsibilities; and 3. the phrase "assist in the lifting and/or transporting of infectious patients" is informed by the duties performed by Wardspersons, the modern equivalent of Porters and Patient Transport Officers, but does not confine cl 32 to those classifications.
5. There would be no impediment to these conclusions being reflected in a list of classifications to be included in cl 32. However, the Commission does not have a sufficient basis on which to construct such a list. We do not know, for example, whether our conclusion regarding "cleaning duties" would extend the Health Secretary's list beyond those classifications which it says equate to "cleaners". While the list should include Surgical Dresser, Operations Assistant, Security Officer, Security Supervisor and Motor Vehicle Driver, on the basis that they may be called on to assist in the lifting and/or transportation of infectious patients, it is possible that other classifications might fall into the same category.
6. This is a matter about which the parties ought properly to confer.
7. In the absence of a list, we accept that the current terms of the clause have created confusion and inconsistency. Clarity as to the duties attracting the Allowance is required to avoid ongoing disputes between the parties.
8. We digress to address the Health Secretary's submissions to the effect that cl 6(1)(b) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation") precludes a finding that cl 32 applies to classifications beyond the list she has proposed, and certainly to the extent for which the HSU contended. The basis of these submissions is that the "expansion" of the scope of the clause would increase employee-related costs by more than 2.5% per annum, without offsetting employee-related costs savings.
9. These submissions can be disposed of briefly. They rest on a false premise that cl 32 is presently confined in its operation to those classifications which the Health Secretary has identified. To the extent that the Full Bench disagrees with that position, it is not "expanding" but rather confirming the scope of the clause. It is clarifying the boundaries of an extant obligation. It follows that a determination by the Full Bench that the clause has an operation beyond that for which the Health Secretary contends is not an "award" within the meaning of the Regulation.
10. We add that the Health Secretary's submission that the adoption of the construction proposed by the HSU would increase employee related costs by more than $3.8 million per annum must be approached with caution. The calculation of that number was apparently predicated on identifying the "additional classifications" which the HSU sought to have covered by the clause, and assuming that every employee in those classifications received the Allowance for every shift they worked. Even were employee-related costs to be a relevant consideration, this is not a realistic basis on which they should be calculated.
11. Finally in relation to the application of the clause, we recognise that our conclusions will result in it having a narrower construction than the one for which the HSU contended, and a broader one than that pressed by the Health Secretary. To vary the clause so as to move closer to one party's position, in a manner inconsistent with our conclusions, would not be in keeping with a review under s 19 of the Act.
12. The HSU made no application under s 17 for a variation to the Award. In those circumstances we do not consider it necessary or appropriate to consider whether there is a case for an expansion to the operation of cl 32. We will return to consider the Variation Application made by the Health Secretary.

Right of election

1. The right of election contained in cl 32 is at present not subject to any restrictions. The Health Secretary seeks to constrain the right of election by making it subject to two considerations: firstly, the interests of public health considerations; and, secondly, an employee not acting unreasonably in refusing to undertake work, having regard to those interests. Leaving aside the question as to who determines the relevant interests and whether an employee is acting unreasonably, the change sought by the Health Secretary is material.
2. As referred to at [8(7)] above, the premise of the Health Secretary's submission is that "the concept of employees retaining an 'election' not to perform work is somewhat outdated and warrants updating". To the extent that this submission is intended to invoke s 19 by suggesting that the change would "modernise" the Award, we reject it. The submission is more akin to asking the Commission to consider what conditions a "modern" award should, or should not, contain, which the Full Bench observed in Principles for Review of Awards was not the proper approach to s 19: see [18(6)] above.
3. The constraints sought to be placed by the Health Secretary on the election must therefore be considered in the context of the Variation Application.

The Variation Application

1. At [22]-[24] above we made reference to the principles to be applied in determining the Variation Application. Relevantly, they are as follows: 1. the Award is presumed to set fair and reasonable conditions of employment for the employees to whom it applies; 2. the onus is on the Health Secretary as the applicant to make out that: 1. the terms of the Award are not currently fair and reasonable; and 2. the changes sought in the Variation Application are necessary in order to make it so; and 1. the Variation Application should be determined having regard to the Wage Fixing Principles.
2. We do not consider that the Health Secretary has discharged her onus. To the extent that the Variation Application seeks to narrow the application of cl 32 beyond that which we have determined, the Health Secretary's evidence was limited. Her case was premised on the Earlier Decisions being correctly decided; the clause being strictly and literally confined in accordance with the Earlier Decisions; and, resisting what were said to be attempts by the HSU to "expand" the operation of the clause. For the reasons already stated, we are not wholly persuaded by these contentions.
3. In so far as the Variation Application concerns the election, the Health Secretary led evidence from Jo Tallon, the Director Infection Prevention and Control, Northern Sydney Local Health District. She deposed: [17] "10. In my opinion, if you have an award where people can choose not to do the required work related to infectious cleaning, that presents a significant public health risk. That is, if workers in the relevant classifications choose not to do the relevant infectious cleaning tasks, and the tasks do not get completed, it presents a risk to public safety and increases the risk of infection spread."
4. Richard Buss, the Director of Workforce, Northern New South Wales Local Health District deposed: [18] "15. I have read the proposed clause 32 in the HSU outline of submissions. Based on my experience, if the HSU's proposed clause is adopted, it will likely lead to more disputation locally as it does not expressly define the classifications entitled to the allowance and gives staff the option not to work on the potential infectious area."
5. This evidence represents the high-water mark of the Health Secretary's evidence on the question of election. There are several observations to make. First, neither Ms Tallon nor Mr Buss appear to be aware that cl 32 already entitles employees to choose not to perform cleaning duties or to lift and/or transport patients if it would require the use of transmission-based precautions.
6. Second, notwithstanding that the clause in its current terms has been in place since approximately late 1982, the evidence discloses only one instance (referred to in Mr Buss's statement) where an employee elected not to perform infectious cleaning. While Mr Buss deposed as to the potential for this to have caused difficulties for the relevant hospital, there is no evidence that it actually did so.
7. Third, and consistent with the absence of evidence of employees electing not to perform the relevant duties, there is no evidence of there ever having been an actual risk to public safety of the kind referred to by Ms Tallon. Further in this regard, and finally, Ms Tallon's opinion and her concerns as to the risks to public safety are predicated on the relevant tasks not otherwise being performed. Once again, there is no evidence on which we could find that this is a realistic scenario.
8. The last observation to make in relation to the Variation Application is that the Health Secretary did not engage at all with the Wage Fixing Principles.

Proposed variations to cl 32

1. Having regard to all of the matters referred to in this decision, the Commission proposes that cl 32 be amended to read as follows (adopting formatting consistent with that appearing elsewhere in the Award): 32. Infectious Cleaning (i) This clause applies to non-clinical employees who in any shift: (a) perform cleaning duties in infectious areas; or (b) assist in the lifting and/or transporting of infectious patients. (ii) For the purposes of this clause: (a) an "infectious area" is one in which transmission-based precautions are required to be used; (b) an "infectious patient" is one in respect of whom transmission-based precautions are required to be used; (c) "transmission-based precautions" are those that are determined to be required in addition to standard precautions, in accordance with NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time; (d) an employee "performs cleaning duties" if they are employed in a role in which cleaning is the predominant or substantial responsibility. It does not encompass cleaning tasks that are incidental to, even if required as a consequence of, an employee's core responsibilities; (e) an employee "assists in the lifting and/or transporting" of an infectious patient if they perform duties such as: (1) assisting to lift the patient out of bed, including through the use of lifting equipment, for showering or other personal health tasks; (2) transporting the patient within the ward, such as to the bathroom, or to other areas within the same Health Institution or Hospital; (3) transporting deceased patients to a mortuary; or (4) transporting patients in a motor vehicle. (iii) Employees who perform the duties described in subclause (i) will be paid an allowance as set in Item 47 of Table 1 - Other Rates and Allowances, of Part B, Monetary Rates. The allowance is payable once per shift, regardless of whether the employee performs the duties described in subclause (i) on more than one occasion during the shift. (iv) Employees are to be given the option of working in an infectious area (including working with an infectious patient). In the event of an employee declining to work in the infectious area, hospitals are to seek guidance from the employer. (v) Employees will be given training in infection control procedures, in accordance with NSW Health Policy PD 2017_013 Infection Prevention and Control Policy, as amended or replaced from time to time.
2. The parties will have an opportunity to consider and provide comment on the proposed clause, prior to any variation to the Award being ordered. The Full Bench expects that to the extent that they consider there to be utility in the clause containing a list of classifications in place of the description of duties contained in the proposed clause, the parties will confer with the aim of reaching consensus on that list.
3. Specifically in relation to proposed cl 32(iv), it may be appropriate that the option of working in an infectious area is offered at the time at which an employee is engaged, as a condition of that engagement. This would attract the types of considerations referred to at [56] above. If this approach were to be adopted, the second sentence of cl 32(iv) might be limited in its application to existing employees.
4. We are cognisant that our decision and the proposed variations to cl 32 will extend the operation of the clause beyond that determined by Newall C in the First Decision. However, as we have already observed, the purpose of the variation is to clarify the scope of the clause consistent with our jurisdiction pursuant to s19 of the Act, not to expand its current application. This decision may give rise to the possibility of claims by employees for back payments. It is beyond the scope of these proceedings to determine whether there should be any back payments.

Further variations sought by the Health Secretary

1. The Variation Application seeks changes to the Award beyond those to cl 32 addressed above. To allow for those matters to be progressed the proceedings will be listed for directions before a member of the Full Bench.

Orders and directions

1. The Commission orders that in so far as the Variation Application seeks amendments to cl 32 of the Award, it is dismissed.
2. The Commission directs that: 1. The parties file and serve a document setting out any comments or concerns with the proposed clause contained at [108] above by 4.00pm on 21 July 2021. 2. The matter is listed for directions at 9.30am on 28 July 2021.

Endnotes

1. Closing Submissions of the Applicant at par 106
2. ibid.at par 111
3. ibid. at par 103(b)
4. Outline of Submissions of the Health Services Union NSW at par 29
5. Closing Submissions for the Applicant at par 70a.
6. See cll 2 (definition of "On Call"), 3(ii), 3A(iv)(y), 8(i), 9(ii), (v), (viii) and (ix), 10(iii) and (iv), 12(ii), (vi), (vii) and (viii)(f)(2), (viii)(h)(2), (viii)(l)(2), (viii)(o), (viii)(p), (viii)(s) and (viii)(u), 13(i), (ii)(d) and (iii)(b), 14(ii)-(vi), 15(i)(a) and 15(iii), 20(i), 23(i)(a), (iii) and (iii), 25, 28(B)(ii)(c), 31, 33(ii), 38(i) and (ii), 46(i)
7. See cll 28(A)(vi), (B)(iii)-(v), 44(i), 45(i)
8. See, for example, cll 3(i), 3(xii), 3A(iii), 4(i), 6 Pt 2(iii) and (vi), 9(i), 10(i), 11(i), 15(i)(c)(3), 15(iii)(a) and (b), 16(i)(b), 17(viii) and 17(xi) of the Award
9. Statement of Lisa Bilton, 11 August 2020, at par 18
10. Statement of Michael Symonds, 8 September 2020, at par 11
11. Statement of Mario Bustamante, 7 August 2020
12. Statement of Michael Doyle, 7 August 2020
13. Statement of Gregory Lee Frost, 7 August 2020
14. Statement of Rodney arrow, 7 August 2020, at par 4
15. Statement of Philip Swain, 7 August 2020 at par 5
16. Statement of Daniel Muscat, 5 August 2020 at par 6
17. Tcpt, 19 November 2020, p 12(43-45)
18. Statement of Jo Tallon, 7 September 2020 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: 30 June 2021