Health Secretary in respect of Western NSW Local Health District v Health Services Union NSW

The appeal

1. On 20 February 2019 the Health Secretary filed with the Office of the Industrial Registrar an Application for Leave to Appeal and Appeal ("Appeal"). The Health Secretary appeals against the determination and recommendation reproduced at [10] above ("Determination" and "Recommendation", respectively). The grounds of appeal were described in the Appeal in these terms: "1. The Commissioner misconstrued the words 'and who has been appointed as such' in the definition of PTO in cl 1 of the Award by: (a) finding that it was sufficient that a person be qualified to perform the work as a PTO and were performing the work of PTOs (Decision [78]); and (b) not finding that the words required the WNSWLHD to make a deliberate and definite decision to appoint a person to the position of PTO. 2. The Commissioner erred in not finding that the employees had not been appointed to a position of PTO prior to December 2016 as the WNSWLHD had not made a deliberate decision to appoint each of them to such a position. 3. The Commissioner erred in not finding that the successful completion of the requirements for the appointment as a PTO required that the Trainee PTO be assessed as having undertaken both training and workplace mentoring so as to apply procedures in cases of an emergency arising during the course of a non-escorted or escorted transportation."

Legal principles to be applied

1. Under s 188 of the IR Act an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
2. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]."
3. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal."
4. The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles.
5. The Determination did not involve the exercise of a discretion. If leave to appeal is granted the question for the Full Bench is whether the Commissioner reached the correct decision, not whether the decision was reasonably open to him: Branir Pty Limited v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 and Australian, Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia (acting through and represented by the Australian Taxation Office) [2018] FWCFB 1170.
6. In respect of the Recommendation, on the other hand, the appeal does challenge the exercise of a discretion. The Health Secretary must demonstrate error in its exercise of the nature contemplated in the principles enunciated in House v The King (1936) 55 CLR 499; [1936] HCA 40.
7. The questions arising in this appeal largely relate to construction. At [66] of the Decision the Commissioner summarised the relevant principles to apply when interpreting industrial instruments such as the Award. It was common ground that the Commissioner identified the correct principles of interpretation, and so it is unnecessary to reproduce them here.

Health Secretary

1. In her Narrative on Leave to Appeal the Health Secretary submitted that the Full Bench has relevantly held that the following types of questions can justify a grant of leave to appeal: 1. questions raising substantial issues of principle or law having wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application; 2. whether there is a "demonstrable and cogent matter of principle or law"; and 3. in the instance of demonstrable error.
2. The Health Secretary submitted that the present appeal satisfies all of these criteria. She contended as follows: "5. In particular, the appeal raises an important question of principle in the context of the NSW Government Service as to whether an employee is entitled to be 'appointed' to a position even though the agency has not made a deliberate and definite decision to do so. In addition to its usage in the Health Employees (State) Award, the expressions 'appointed as such' used in contradistinction to 'employed as such' are common in NSW public sector legislation and awards. … 7. If the [sic] Commissioner Murphy's construction of the words 'appointed as such' is correct, then the potential ramifications are potentially significant for the following reasons: (a) The ability of an employer to determine the persons who will be appointed to a position especially where there are a group of classifications which share common duties and responsibilities may be curtailed. In the absence of a bright line distinguishing between particular classifications, there can be practical difficulties in working out the appropriate classification which applies to a particular employee who performs the core duties and responsibilities common to several classifications. (b) The ability to determine who and when a person is appointed to a classification is an important screening mechanism to enable that appropriate persons are selected to perform positions. If an employer does not have the ability to determine which persons are appointed, then this may have the undesirable and counter-productive consequence of discouraging the engagement of persons in particular classifications. It will also make it more difficult for an employer to properly budget for the remuneration for positions and maintain an appropriate hierarchy within a work team."

Health Services Union

1. The HSU contended that leave to appeal should be denied. It submitted as follows: "10. The matter raised on appeal is not of such importance, that it is in the public interest to grant leave to appeal. Contrary to the Appellant's Narrative, it is clear that the Decision of the Commissioner is confined to the definition of one classification, PTO, in one Award, the Health Employees (State) Award. It has no wider application to NSW public sector legislation and awards. Those instruments are to be interpreted by reference to their own text and context. The Commissioner's construction of the words 'appointed as such' as used in the definition of PTO does not have the potential ramifications of the curtailing the ability of employers in determining who will be appointed to the position nor the ability of an employer to a person is appointed to a classification. The construction applies simply to the dispute that was before the Commission for the purpose of resolving the dispute. 11. For the reasons in the Respondent's outline of argument the Appellant has not made out an arguable case of appellable error."

Health Secretary

1. In her Outline of Submissions the Health Secretary contended that in order to be classified as a PTO, it was necessary to satisfy the following requirements: 1. the person must be employed as a Trainee PTO; 2. the person must have successfully completed the requirements for training and workplace mentoring to be appointed as a PTO; and 3. the person must have been appointed as a PTO.
2. In relation to Grounds 1 and 2 in the Appeal - the meaning and effect of the words "and who has been appointed as such" in the definition of PTO in the Award - the Health Secretary submitted, on the basis of authorities referred to in her submissions, that: 1. ordinarily the appointment of a person to fill a particular role or to perform a particular task will require at least communication between the appointer and prospective appointees; and 2. used in a statutory context, the meaning of "appointed" and its cognate expressions have been generally construed to mean nominating a person to perform work in a specified position. Therefore this requires that a deliberate decision be made to appoint a person to the position by notifying the proposed appointee of the proposed appointment and that person indicating that he or she is willing to accept the appointment.
3. On this basis the Health Secretary submitted as follows: "22. Thus, the Ministry submits that the natural and ordinary meaning of the expression 'and who has been appointed as such', read in its proper context, refers to a person who the Ministry has deliberately or formally nominated or assigned to a vacant PTO position."
4. The Health Secretary contended that this construction was supported by seven "linguistic and contextual considerations in the Award". Firstly, the definition of PTO requires that the Trainee PTO meet two separate conditions: successfully completing the requirements for appointment as a PTO, and being appointed as a PTO. The use of the conjunctive "and" in the definition indicates that each limb must be satisfied. The Commissioner concluded that it was sufficient that the Trainee PTOs had completed the training requirements to be appointed as a PTO and in so doing rendered the second limb in the definition, namely, an appointment, superfluous.
5. Secondly, the definition of Trainee PTO in the Award emphasises that an employee is undertaking training and workplace mentoring in order to successfully complete the requirements for appointment to a PTO. It does not state, however, that having done so the employee will necessarily be so appointed. The word "for" used in the expression "requirements for appointment" indicates that the requirements must be satisfied to achieve a particular objective or outcome. The expression "requirements for appointment" does not mean that a Trainee PTO is appointed automatically as a PTO after completing training and workplace mentoring.
6. Thirdly, the use of the present perfect tense in the phrase "who has been appointed as such" in the definition of PTO suggests that there has been an active appointment which has occurred which is not an act of a continuing nature. If the drafters had intended that the words "and who has been appointed as such" be read to mean that the employee is employed and performs work consistent with the role, the more appropriate expression would have been "who is appointed as such".
7. Fourthly, the use in the award of the different expressions "employed as such" and "appointed as such" appears to be the product of careful drafting with a specific purpose. The phrases should be construed as having different meanings.
8. The expression "employed as such" is used in a large number of classifications in the Award to describe the requirements of being employed in a classification. In contrast, the expression "appointed as such" is generally but not always used where there are different grades or levels within a classification or range of classifications.
9. Where employees work as part of a team, team members may from time to time perform a range of duties. In the absence of a "bright line" distinguishing between particular classifications, there can be practical difficulties in working out the appropriate classification which applies to a particular employee who performs the core duties and responsibilities common to several classifications. To avoid this potential problem, a "common solution" is to require that a person be "appointed" to a position. This ensures that an employer can properly budget for the remuneration for positions and maintain an appropriate hierarchy within a work team.
10. The use of the words "and who has been appointed as such" has a similar purpose in relation to the progression of a Trainee PTO to a PTO. The distinction between the content of the classifications of Trainee PTO and PTO is not conditional on the performance of different duties and responsibilities. To obtain the appropriate experience to be appointed to a PTO, it is logical that a Trainee PTO must from time to time perform elements of the same duties and responsibilities as a PTO during the period of training. However, merely because a trainee performs the same duties and responsibilities for training purposes, from time to time, as a permanent employee, this does not necessarily justify the appointment of a trainee to a permanent position. To ensure that there is an orderly progression from Trainee PTO to PTO, the Health Secretary must have the ability to determine the Trainee PTOs who are to be appointed as PTOs.
11. The Health Secretary's discretion to determine who is appointed to be a PTO, and when that occurs, is an important screening mechanism to enable the Health Secretary to hold back appointing a Trainee PTO as a PTO if he or she is not ready to be appointed as a PTO after the completion of training and workplace mentoring. Thus, there are sound policy justifications supporting the inclusion of, and the adoption of an "orthodox construction" of, the words "and who has been appointed as such".
12. Fifthly, the Commissioner erroneously proceeded from the premise that because a Trainee PTO is a "transitional classification", the appointment to the position of PTO must automatically follow after completion of the requirements. There is no obligation to appoint a trainee to a permanent position. Section 83(3) of the IR Act makes clear that there is no ongoing expectation of employment during and following the completion of an apprenticeship or traineeship within the meaning of the Apprenticeship and Traineeship Act 2001 (NSW).
13. Sixthly, in the context of the NSW Health Service, employees are "employed" in the NSW Health Service (ss 116(1)-(3) of the Health Services Act 1997 (NSW)) but "appointed" to positions (ss 116G(5) and (6) of the Health Services Act). The use of the separate expressions in relation to employees underscores that "appointment" has a more conventional definition and is different to the word "employment". Employment is used to describe the creation of an employment relationship. Appointment is used to designate the allocation to a position.
14. Seventhly, the Commissioner erred in adopting a construction that he considered a "sensible industrial outcome" which was inconsistent with an interpretation which was reasonably available from the language used in the provisions.
15. For these reasons, the Health Secretary submitted that the Commissioner misconstrued the words "and who has been appointed as such" in finding that it was sufficient that a person be qualified to perform the work of a PTO and performed the work of a PTO. It followed that the Commissioner erred in concluding that the Relevant Employees were entitled to be classified and paid as PTOs.
16. In relation to Ground 3 of the Appeal, the Health Secretary contended that the definition of Trainee PTO states that the requirements for appointment as a PTO comprise training and workplace mentoring. The Commissioner did not find that the Relevant Employees had successfully undertaken workplace mentoring. Indeed, their evidence was that each of them had not received workplace mentoring. Unless a Trainee PTO has undertaken the requisite workplace mentoring, then he or she has not completed the requirements for appointment as a PTO.
17. The Health Secretary submitted that the Commissioner erred in not concluding that workplace mentoring constituted a requirement for appointment as a PTO and considering whether the Relevant Employees had met this requirement. In the absence of evidence of them having done so, it must follow that the Trainee PTOs had not completed the requirements for appointment for, and could not be appointed as, PTOs.

HSU

1. The HSU submitted that the Decision was correct. It contended that the Health Secretary had not established error in the Commissioner's reasoning process or as to the final conclusion concerning the proper interpretation of the definition of PTO.
2. The HSU argued that the Commissioner regarded the definition of PTO to include two relevant components. The first was that the employees have the qualifications as set out in the definition, and second that the employees perform the work. As they were performing the work, the Commission was satisfied that they had been "appointed as such". This finding accords with a sensible industrial outcome, which was reasonably available from the text of the definition.
3. In relation to Grounds 1 and 2 of the Appeal the HSU submitted that the dictionary definition of "appoint" includes "to…assign…to perform a function", which is consistent with the Commissioner's conclusion that if the employees were required to perform the work of PTOs than they were assigned to perform that function.
4. In response to the Health Secretary's submissions that "appointment" entails a deliberate decision being made to appoint a person to the position, the HSU argued: 1. the Award makes no reference to the means by which a person is appointed to a PTO role; and 2. on the evidence, in the industrial context of the Health Secretary needing the work of patient transport to be done and the employees agreeing to do that work, it can be assumed, consistent with the dictionary definition of "appoint", that the Health Secretary deliberately assigned the employees to perform that work.
5. In response to each of the seven "linguistic and contextual considerations" advanced by the Health Secretary the HSU made the following submissions: 1. the Commissioner did not ignore the "and" by treating the words "and who has been appointed as such" as superfluous. Rather, he concluded that if the employees were qualified as PTOs and were performing the work of PTOs then they were "appointed as such"; 2. the Commissioner did not find that the definition of Trainee PTO provides for automatic progression to PTO. The HSU does not contend that it does. The Commissioner found that to be classified a PTO the training needed to be completed and the employee must be required to perform the duties of a PTO. The Commissioner's construction of "appointed as such" in the definition of PTO as being assigned to the work is harmonious with the use of the term "appointment" in the definition of Trainee PTO. In the latter, the term "…meet the requirements for appointment" can be substituted with "…meet the requirements to be assigned to"; 3. the Health Secretary's reliance on the use of the present perfect tense in the words "has been" is not an argument that was advanced at first instance. In any event, it was open for the Commission to determine that the employees in this case met the requirement to be "appointed as such" because they were "assigned to perform that function". The tense used is the same; 4. on the use in the Award of the different expressions "employed as such" and "appointed as such": 1. the Health Secretary did not tender any evidence about the drafting, history, content or purpose of other definitions in the Award to support the contention that the use of different expressions are the product of careful drafting with a specific purpose; 2. the history of the definitions of Trainee PTO and PTO set out in the Decision suggests that the inclusion of the definitions as a consent position was a separate exercise to the drafting of the other definitions; 3. in any event, the Health Secretary's argument that the expression "appointed as such" was deliberately chosen by the drafters for classifications where "there are different grades and levels within a hierarchical structure and there are a core range of duties and responsibilities but a number of escalating levels, grades or seniority based on increased supervision or additional duties", is not reflected in the terms of the award. Further, there are no "different grades and levels within the hierarchical structure" within the PTO classification; 4. the Health Secretary's submission that "merely because a trainee performs the same duties and responsibilities for training purposes, from time to time, as a permanent employee…does not necessarily justify the appointment of a trainee to a permanent position", misunderstands the evidence. The employees in question, when they were classified as Trainee PTOs, did not merely perform the same duties and responsibilities from time to time as PTOs. They performed the same duties all of the time; and 5. on the Health Secretary's submission that the Decision "may have the undesirable and counter-productive consequence of discouraging the engagement of trainee PTOs", there was no evidence in the proceedings that the Trainee PTO classification is currently in use anywhere else; 1. the Health Secretary's reliance on s 83(3) and the Apprenticeship and Traineeship Act was not an argument raised in the proceedings below. In any event, the Health Secretary tendered no evidence that any of the employees in question were trainees, or undertaking a traineeship, within the meaning of the Apprenticeship and Traineeship Act; 2. the Health Secretary's argument relying on the terms of the Health Services Act was not advanced at first instance, and in any event lacks substance for two reasons: 1. the Commissioner's construction is consistent with the statutory context in which it was made, being the IR Act. The Commissioner was construing an award made under the IR Act. The Commissioner had regard to the Health Secretary's submission at first instance which referred to the objects of the IR Act to provide a framework for the conduct of industrial relations that is fair and just; and 2. in any event, the Commissioner's finding is not inconsistent with ss 116 and 116G of the Health Services Act; and 1. the Commissioner's "sensible industrial outcome" is not inconsistent with an interpretation that is reasonably available from the language used in the Award. The employees were effectively "appointed" as PTOs for the purposes of the Award because they were assigned to perform the work of PTOs.
6. In relation to Ground 3 in the Appeal, the HSU submitted as follows: "60. …The Commissioner found that there was no mentoring program for the 4 employees. This was only relevant to the question of whether they were correctly classified as Trainee PTOs. The PTO classification did not require that a mentoring program be completed. It only required that training be done. 61. The lack of mentoring, which was brought about by the Appellant's failure to provide mentoring, had no bearing on the construction of the Award nor the proper classification of the employees. If anything, it speaks against the proposition that the proper classification for the 4 employees was the Trainee PTO classification."

Implications of Health Secretary's preferred construction

1. Before addressing the particular grounds of appeal, it is necessary to consider the implications of the construction proposed by the Health Secretary.
2. In the Decision, the Commissioner stated as follows: "99. …To interpret the award definition of PTO as requiring training to an unspecified level in each and every one of the listed clinical elements, in circumstances where, contrary to its obligations under the Award, WNSWLHD provided no training to Mr Fengler until December 2016, and in circumstances where the training that Mr Fengler did undertake in 2014 and 2015 was at his own initiative, not at the direction of his employer, would defeat the manifest purpose of the award definitions of TPTO and PTO. That purpose is that TPTOs be provided by their employer with the training specified in the award definition of PTO in order that they may progress to the PTO classification and not be held back as trainees for several years. … 104. Indeed, it would be a bizarre outcome if WNSWLHD were able to defeat the otherwise legitimate claim of the four employees to be classified and paid as PTOs on the basis that there were gaps in their certifications with respect to training which, contrary to its obligations under the Award, was not provided by WNSWLHD but was undertaken at the initiative of the four employees themselves. … 115. WNSWLHD relies upon the 'undertaking training and workplace mentoring' part of the award definition of TPTO but nowhere does it adequately address its failure to provide the four employees, over periods of several years, with the training it claimed they needed to complete in order to be classified as PTOs. 116. It was further submitted: 21. What the Award specifies in its general list of required training is the minimum. More simply, the Award specifies in general terms the what, but it deliberately, and quite appropriately, does not specify the how or when. 22. In the Respondent's submission, it was properly the domain of the WNSWLHD to ascertain with reference to the local needs of the residents in its area, the geographical distances involved, the limited clinical and training resources available, how to best provide for training to enable TPTOs to be eligible to apply for a PTO position. 23. Again, as Ms Taylor explained, it was always the desire and expectation of WNSWLHD to train TPTOs to a Certificate III level as this standard is what LHD patients deserve. Previous PTOs had successfully completed the course (albeit with difficulty). The PTOs involved in the current proceedings were aware of this course and the desire for them to complete it. 117. Unfortunately, it must be said that this part of the submission of WNSWLHD has a heavy air of unreality about it. Firstly, it is not open to WNSWLHD, or to any other individual LHD, to impose a training requirement upon its TPTOs which is not found in the award and which was ultimately not required of them to be reclassified as PTOs. Secondly, and more importantly, regardless of the 'desire and expectation' of WNSWLHD, and regardless of the apparent eagerness of the four employees to undertake any level of training that was made available to them, it was WNSWLHD who failed to comply with its award obligation to provide the training to the TPTOs, which it required them to complete in order to be reclassified as PTOs, until December 2016. … 121. WNSWLHD made a lengthy submission about the autonomy of management of an employer to manage its business, citing authorities such Re Cram; Ex parte New South Wales Colliery Proprietors' Association ([1987] 163 CLR 117 at 136-137). Nothing in Cram, nor in any of the other authorities cited, supports the proposition that an employer may arrange its business in a manner that allows it, as occurred here, to employ workers, initially as trainees, who then obtain the qualifications necessary to be appointed to the substantive classification in an award, who perform the work of that classification, but to pay those workers at a rate lower than the award rate for that classification. The notion that managerial prerogative extends to permitting an employer to avoid its award obligations is entirely misconceived."
3. The Commissioner's comments in the above passages regarding the obligation on the part of the Health Secretary to provide the training referred to in the definition of Trainee PTO are equally apposite to the requirement that the employees undertake workplace mentoring.
4. At [6] and [8] above we set out some of the factual findings made by the Commissioner, which were not challenged in these proceedings. The Commissioner's finding that the definition of Trainee PTO placed an obligation on the Health Secretary to provide the employee with any necessary training and workplace mentoring also went unchallenged. Each of the Relevant Employees gave evidence that representations had been made to them that they would progress to being PTOs after 12 months in the Trainee PTO role. When this did not eventuate each of them actively sought out opportunities to undertake the training that would allow them to progress. It would appear that until December 2016 the Health Secretary did little to assist the employees in their endeavours, much less provide them with the requisite training.
5. In this context, the Health Secretary would have the Commission accept a construction of the Award that would allow for an employer to employ an employee in a particular classification (whether or not on the basis of representations as to progression); fail, if not deliberately refuse, to meet its obligations under the Award that would qualify the employee to progress to a higher classification (by providing training and workplace mentoring); notwithstanding this failure or refusal, require the employee to perform all of the requirements of the higher classification; but, only be required to pay the employee at the lower classification. This is an inherently unfair outcome.
6. This unfairness could be compounded, and perhaps extend to calculated employee exploitation, by the employer simply refusing to make the requisite "deliberate decision…to appoint a person to the position". Indeed, on the Health Secretary's case this is possible irrespective of whether the employee has met the requirements for progression, and for how long they might have been required to perform the duties of the higher classification.
7. The objects set out in s 3 of the IR Act include the provision of "a framework for the conduct of industrial relations that is fair and just" and to "facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments". Section 10 of the IR Act empowers the Commission to make awards "setting fair and reasonable conditions of employment for employees".
8. The Award was made by the Commission under the IR Act. It is to be presumed that it sets fair and reasonable conditions of employment for employees. It is to be construed in a manner consistent with that purpose and with the objects of the IR Act. A construction which allows for the possibility of employee exploitation cannot be accepted, particularly in a factual context which might allow for a conclusion to be drawn that this has already occurred, when an alternative and legitimate construction is available.
9. We turn now to consider the particular arguments raised by the Health Secretary on appeal.

Grounds 1 and 2

1. As stated at [24] above, the Health Secretary contended that the expression "and who has been appointed as such" in the definition of PTO refers to a person who the Health Secretary has deliberately or formally nominated or assigned to a vacant PTO position.
2. The Commissioner addressed this argument as follows: "73. The award definition of 'Patient Trans[port] Officer' set out at [2] above refers to 'an employee who has successfully completed the requirements for appointment as a Patient Transport Officer and who has been appointed as such' (emphasis added). WNSWLHD relied heavily upon the highlighted words to resist the HSU's back pay claim on the basis that, prior to December 2016, the relevant employees were not appointed as PTOs but were appointed as TPTOs. The argument seemed to be that, regardless of the training and level of qualifications held, presumably including even the favoured but elusive Certificate III course, or the nature of the duties performed, if the employee was appointed as a TPTO rather than as a PTO, they were only entitled to be paid as a TPTO. … 75. The HSU submitted that the adoption of such a literal approach to the term 'appointed as such' could lead to a 'bizarre and unjust outcome' where 'an employer covered by this Award would be free to maintain an employee as a Trainee PTO indefinitely, even if they have completed all training required and perform the full range of duties that may be requested of a PTO'. … 78. I reject the proposition that the four employees were not entitled to be paid as PTOs prior to December 2016 simply because they had not been appointed as such. If they were qualified as PTOs and were performing the work of PTOs then they were entitled to be paid as PTOs.
3. The Health Secretary's submission suggests that the expression "and who has been appointed as such" imports two requirements: firstly, a deliberate or formal act of appointment of a person to a PTO position; and secondly, the existence of a vacant PTO position into which the person can be appointed.
4. The first requirement was the subject of some discussion during the hearing. The Health Secretary seemed to concede that no particular formality was required. Mr Seck, who appeared for the Health Secretary, submitted as follows: [11] "The definition of 'appointment' we've set out in para 17 of our primary submissions, which means to nominate or assign or designate. Beforehand, you identified, Chief Commissioner, that it may be a formal or written communication. We would say it doesn't necessarily have to involve a written communication to another person and the degree of formality will obviously depend on that particular context involved."
5. On the second requirement, we can find no support in the Award for the proposition that a person may only be appointed to a PTO position if they are filling a vacancy. This might be a matter of policy within the Ministry but does not appear to be an Award requirement.
6. On the question of policy the Health Secretary, in her Narrative on Leave to Appeal, made reference to the requirement for an employer "to properly budget for the remuneration for positions and maintain an appropriate hierarchy within a work team". At the hearing Mr Seck submitted that there were policy reasons as to why the Award adopted the term "appointed as such". He stated: [12] "In my respectful submission, there are at least four factors which would - which can be derived from the context of the award which would indicate policy reason why that expression is being used. One, I've already identified, that is, where there's multitasking or duties which overlap between roles, there needs to be a bright line which is used to delineate the particular classifications, especially between roles within a work group were there might be a hierarchy and significant overlap in duties and responsibilities. A second reason is that in the public sector there is obviously a finite amount of money and that one needs to budget for those particular positions to ensure that there are sufficient funds to pay for those particular roles under the award. So the use of the word 'appoint' can also act as a mechanism for ensuring that employees are only in that role if there is a conscious decision to get funds from that role and place the employee in that particular role."
7. We accept that these are properly matters to be considered by an employer in the conduct of its operations. When making an award the Commission identifies a group of tasks which an employer requires to be performed and places a just and reasonable value upon that work. The number of people employed to perform that work is a matter for the employer and will be a function of the employer's priorities and budgetary constraints. Budgetary constraints are not, however, a basis to construe an award to facilitate the employment of a greater number of people at rates lower than those determined as just and reasonable for the work required to be performed. To take that approach is to confront policy considerations, including those referred to at [45]-[52] above.
8. The Health Secretary contended that an "appointment" required communication between the appointer and the prospective appointee, being on the one hand notification of the proposed appointment and, on the other, consent to accept the appointment. These submissions were based upon authorities referred to in the Health Secretary's Outline of Submissions.
9. The first such authority was Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455, which involved the question as to whether valuers had effectively been appointed under a lease. The second was Tradax Export SA v Volkswagenwerk AG ("La Loma") [1970] 1 QB 537, which concerned the requirements for the appointment of an arbitrator under a charterparty. In the third, Stoelwinder v Southern Health [2001] FCA 115, Finkelstein J cited Tradax Export in finding that a person could not, under the terms of the Health Services Act 1988 (Vic), be appointed as the chief executive without their consent. [13]
10. These authorities provide little direct assistance in construing the use of the word "appointed" in the definition of PTO in the Award. The same observation may be made of the cases to which the Health Secretary referred us regarding the use of "appointed" in a statutory context. As Edmund Davies LJ stated in Tradax Export: [14] "'Appoint' and 'appointed' are words with meanings varying according to their contexts."
11. This passage was cited with approval by the High Court in Gollin. [15] To a similar effect, in Zatorski v South Australian Railways Commissioner & Anor (1982) 1 IR 354 the Full Court of the Federal Court held that "the word 'appoint' may bear more than one meaning". [16] In that case the question was whether the employee was "occupying" the position. Similarly, the Full Court also found that being appointed to a position may require no more than being employed to perform the relevant duties, with the question ultimately for determination being a question of fact. [17]
12. The Commissioner quoted this and the surrounding passages from Zatorski in the Decision. [18] The Health Secretary submitted that "to the extent reliance was placed" by the Commissioner on Zatorksi to find that a person is appointed to a position simply by occupying the position, that reliance was misplaced. The submission was understandably hesitant, as nowhere in the Decision did the Commissioner put the case forward as authority for the proposition suggested by the Health Secretary. However, the passages which the Commissioner reproduced support the conclusions he ultimately reached.
13. We observe that during the hearing Mr Seck agreed, consistent with Zatorski, that whether a person has been appointed to a position is a question of fact. [19]
14. We turn to examine the relevant terms of the Award.
15. Clause 1 of the Award contains the definitions of terms used in the Award. In all, there are 51 definitions, 44 of which relate to positions or classifications. Of these, 13 make reference to the employee being "appointed" to the position and 12 refer to the employee being "employed as such". A further 12 make no reference to either "appointment" or "employment".
16. The Health Secretary contended that the use of the different expressions "employed as such" and "appointed as such" in cl 1 of the Award was the "product of careful drafting with a specific purpose". In short, the requirement that a person be appointed to a position or classification provided a "bright line" to determine the appropriate classification to apply to a particular employee who performs the core duties and responsibilities common to several classifications.
17. We acknowledge that there are a number of classifications defined in cl 1 of the Award which are sub-divided into grades. In some cases the Award adopts the language of the employee being "appointed" to the relevant position and grade, which supports the argument advanced by the Health Secretary. However, there are seven instances where the Award provides for a person to be "appointed" to a position which is not so readily to be seen as a particular grade within a classification. These are Aide, Animal Technician, Linen Supply Officer, Museum Technician, Patient Transport Officer, Senior Security Officer and Team Leader, Central Linen Service.
18. The Health Secretary contended that in all but one of these instances (Museum Technician) there is a hierarchical connection between positions. This was explained in part by reference to a table in Part B of the Award. That table contained positions not defined in cl 1, with the result that the basis on which the Health Secretary claimed that there was a connection between particular classifications is not always apparent on the face of the Award. Despite this, in some cases a connection between roles may be inferred from their titles - for example, between Senior Security Officer and Security Officer and between PTO and Trainee PTO. In other instances, the Health Secretary relied on a similarity in title - for example, to connect Animal Technician with Animal Attendant and Linen Supply Officer with Linen Assistant Foreperson. In the case of the position of Aide we were effectively asked to assume, in the absence of evidence, that it was part of a hierarchy with Technical Assistants.
19. If we were to adopt the approach taken by the Health Secretary we might conclude that there was a hierarchy between Chief Cardiac Technologist and Senior Cardiac Technologist, given the job titles. In neither case does the Award require an "appointment" to the role. Rather, the classification refers only to the duties that the incumbent "can perform". We observe that there are five further classifications which similarly make no reference to "employed as such" or "appointed as such" (or cognate terms) but are defined solely by reference to qualifications held or duties performed.
20. Finally, there are three classifications (Care Service Employees, Cardiac Technologist and Sterilisation Technicians) which do contain different grades but which make no reference to the employee being "appointed" to any particular grade. In the classification of Pharmacy Technician there are four grades. While three of these refer to an employee being appointed to their position, the Grade 3 position makes no such reference.
21. We are not satisfied that the Award discloses such consistency and coherence in its terms that it can be said that the language used is the result of careful drafting for a specific purpose, namely to provide a "bright line" to determine the appropriate classification to apply to a particular employee. In this respect we note the HSU's submission, which was not disputed, that in the proceedings before the Commissioner the Health Secretary did not tender any evidence about the drafting, history, content or purpose of the provisions of the Award.
22. We are also not persuaded by the Health Secretary's submissions that the use of the present perfect tense in the expression "who has been appointed as such" has any particular significance in this instance. The Health Secretary drew our attention to several authorities which support the proposition that the tense used in legislation to identify things or to impose obligations can be used by courts in interpreting legislation. However, we are not here dealing with legislation but with an industrial instrument. The Commission is reluctant to adopt a position, without evidence, in which the drafters of the Award were not only assumed to understand in full all rules of grammar and their implications, but further intended by the use of a particular tense to give full effect to such nuances.
23. In this regard we are guided by the authority referred to at [66] of the Decision. We note in particular the following well-known passage of the President in Geo. A. Bond & Co Ltd (In Liquidation) v McKenzie [1929] AR (NSW) 498: "Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award." [20]
24. The Health Secretary's reliance on the Health Services Act falls to be considered in a similar way. That legislation forms part of the framework governing the relationship between the Health Secretary and its employees, and to that extent is properly to be considered. The Health Secretary drew the Commission's attention to the fact that the legislation draws a distinction between people being employed in the Health Service but being appointed to positions. That legislative distinction is of little assistance in the present matter.
25. The Award is predicated on the existence of the employment relationship, and so all those to whom it applies are employed in the Health Service. The fact that the Award then uses a variety of terms to describe how a person will be classified to a particular position is inconsistent with the drafters of the Award intending to reflect in its terms the distinction in the Health Services Act.
26. The Health Secretary further contended that the Commissioner failed to properly construe the definition of PTO. That definition refers to an employee "who has successfully completed the requirements for appointment as a Patient Transport Officer and who has been appointed as such". This phrase was said to create two limbs: firstly, the completion of the relevant requirements, and, secondly, appointment to the position. The Health Secretary argued that the Commissioner ignored the use of the conjunctive in the phrase and required satisfaction only of the first limb. In its Submissions in Reply it was contended that in doing so the Commissioner rendered nugatory the words "and who has been appointed as such".
27. These submissions are underpinned in part by the Health Secretary's primary contention as to the meaning of the phrase "appointed as such". If this construction is not accepted and "appointed" is interpreted to include the process by which an employee is placed in a position, the force of the Health Secretary's submission falls away.
28. That said, we acknowledge that on one analysis [78] of the Decision, reproduced at [55] above, might in isolation be read as suggesting that no appointment at all was required. However, viewed in the context of the Decision as a whole, we do not consider that this is what the Commissioner was saying. At [78] the Commissioner was responding to the Health Secretary's submissions regarding the effect of the term "appointed as such", which he summarised at [73] of the Decision. In the discussion leading to the Commissioner's conclusion at [78] it is clear that he was considering what might constitute an "appointment" for the purposes of the definition of PTO. It can readily be inferred that he accepted that there had been such an appointment, evidenced by the fact that the Relevant Employees were not only qualified as PTOs but were performing the work of PTOs. Read properly in context, at [78] the Commissioner was not suggesting that there need be no appointment, but rather rejecting the Health Secretary's contention that such an appointment could only be effected by a deliberate act on her part.
29. The Health Secretary further contended that the Award does not state that simply because a Trainee PTO has successfully completed the requirements for appointment to a PTO position that they must necessarily be so appointed. We accept that submission. However, in circumstances such as the present where the Relevant Employees had not only completed the requirements for appointment to a PTO position but were required by the Health Secretary to perform the full range of duties of a PTO, the question is not whether the Award mandates progression from one classification to another, but whether the Health Secretary is to be taken to have effected such a progression.
30. This leads to the related submission made by the Health Secretary which was in these terms: "Fifthly, the Commissioner erroneously proceeds from the premise that because a Trainee PTO is a 'transitional classification' that the appointment to the position of PTO must automatically follow after completion of the requirements." (Emphasis in original)
31. The submission should be seen in light of the precise terms of the Decision. The reference to the Trainee PTO position being a "transitional classification" was at [68] of the Decision, which is reproduced at [5] above.
32. It is important to observe that the Commissioner did not state in that passage, or anywhere else in the Decision, that once a Trainee PTO satisfies the requirements for appointment to a PTO position such an appointment must automatically follow.
33. The position is titled "Trainee Patient Transport Officer". It can be assumed that the use of "trainee" was deliberately adopted, as opposed to it and the PTO position being different "grades" within a classification, as appears elsewhere in the cl 1 of the Award. The use of "trainee" implies that the role is a step in progression to another position, which is clearly the PTO role. The training and mentoring referred to in the definition is designed to enable that progression.
34. We might question whether, having so completed the requirements for appointment as a PTO, a Trainee PTO would not be afforded that progression. That said, we accept the Health Secretary's submissions that nothing in the Award requires such a progression. However, once those requirements had been met and the Health Secretary directed the employees to perform the full range of duties of a PTO, the progression had already been effected. That is fundamentally what the Commissioner found and we agree with that finding.
35. For the reasons already stated, we do not accept the Health Secretary's submission that the Commissioner adopted a "sensible industrial outcome" over a construction of the Award which was reasonably available from the language used in the relevant provisions. In our view, the Commissioner's decision not only achieved a sensible industrial outcome, but did so on a proper construction of the relevant provisions.
36. We are not satisfied that the use in the Award of the expression "and who has been appointed as such" requires what the Health Secretary described as "a deliberate decision…to appoint the person to the position by notifying the proposed appointee of the proposed appointment and that person indicating that he or she is willing to accept the appointment". In the context of the Award and the evidence, we see no error in the Commissioner's conclusion at [78] of the Decision that the Relevant Employees were entitled to be paid as PTOs.

Ground 3

1. Ground 3 of the Appeal, reproduced at [11] above, alleged error by the Commissioner in failing to make a finding that successful completion of the requirements for the appointment as a PTO necessitated that: 1. the Trainee PTO have undertaken both training and workplace mentoring; 2. the training and workplace mentoring be directed towards "apply[ing] procedures in cases of an emergency arising during the course of a non-escorted or escorted transportation"; and 3. the Trainee PTO "be assessed" as having undertaken this training.
2. The second and third elements in this ground do not appear in the definition of Trainee PTO or elsewhere in the Award. On its face, the definition does no more than require the employee to undertake training and workplace mentoring in order to meet the requirements for appointment to a PTO position.
3. Ground 3 seeks to have the Commission read into the definition words that are not in the Award. This is symptomatic of the concerns voiced by the Commissioner in the Decision, which we endorse, that the Health Secretary has approached the Award as something of a blank canvas onto which it can paint such requirements as it considers to be required.
4. In any event, we do not agree with the Health Secretary's submission that training and workplace mentoring are themselves the requirements for appointment to a PTO position. The better construction is that the training and workplace mentoring are to be provided to enable those requirements for appointment to be met.
5. The requirements for appointment to a PTO position of those contained in the definition of PTO itself, namely that a PTO "have completed training in" seven specified areas. Nothing in the definition makes reference to workplace mentoring.
6. The Award does not define what is meant by "workplace mentoring". There is no evidence that the Health Secretary sought to provide any of the Relevant Employees with workplace mentoring, and in fact relies on the absence of such mentoring to challenge the classification of the Relevant Employees as PTOs.
7. This gives rise to the question as to whether, in all the circumstances, the Relevant Employees should ever have been regarded as Trainee PTOs, or at least certainly from the time at which they were performing the full range of PTO functions. In its Submissions in Reply the Health Secretary made reference to the evidence which demonstrated that the Relevant Employees were expressly employed as Trainee PTOs and, moreover, accepted employment on that basis. This is not determinative.
8. By definition, under the Award a Trainee PTO is one who "is undertaking training and workplace mentoring". Having regard to the position taken by the Health Secretary on appeal, we note both the use of the present tense and the conjunctive. If workplace mentoring is not being provided and being undertaken, the employee cannot be a Trainee PTO. As there is no suggestion that the Relevant Employees were ever award-free, the only classification into which they could properly be placed is that which reflects the work that they are performing. On the evidence this is the PTO classification.
9. We further observe that the Relevant Employees were appointed as PTOs on 4 December 2016 (Messrs Fengler, Milsteed and Roberts) and 5 December 2016 (Mr Arrow). The only impediment to their appointment immediately prior to that time was the completion of two additional training courses. There is no evidence to suggest that in December 2016 the Health Secretary considered that the Relevant Employees required workplace mentoring in order to be appointed as PTOs. This argues against the Health Secretary's contention that workplace mentoring is a "requirement for appointment" to a PTO position.

Conclusions

1. For the reasons set out above, we are not satisfied that the Health Secretary has established that there is any relevant error in the Determination.
2. We are sympathetic to the HSU's submissions that the case in many respects does not give rise to any issues of principle for law having wider implications for the jurisprudence of the Commission. While the Health Secretary would have the Commission accept that clarification of the meaning of the term "appointed as such" has such wider ramifications, the Determination is very much confined by the terms of two definitions in the Award, being construed in a relatively unique factual circumstance. The Decision does not stand as authority as to how the phrase is to be construed in any other context.
3. For these reasons, we are not satisfied that in respect of the Determination the Health Secretary has made out a case for the grant of leave to appeal.
4. Having found no error in the Determination, we do not consider that in making the Recommendation the Commissioner failed to properly exercise the discretion committed to him within the meaning of House v The King. Rather, the Recommendation is the proper consequence of the Determination (noting that 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]).
5. It follows that the Health Secretary has failed to make out a basis on which leave to appeal should be granted in respect of the Recommendation.
6. We have considered whether leave to appeal should be granted for the reasons set out at [45]-[52] above. Certainly, there is a broader issue for the jurisprudence of the Commission in ensuring that employers do not seek to apply awards, or rely on infelicitous or uncertain drafting, so as to exploit or unfairly disadvantage employees. However, in light of our other findings, we do not consider that this is a sufficient basis on which to grant leave in the present case and we will be content to rely on the observations already made.

Orders

1. The Full Bench makes the following order: 1. Leave to appeal is refused.

Endnotes

1. The Health Secretary is, for the purposes of these proceedings, taken to be the employer of Messrs Arrow, Fengler, Millsteed and Roberts: s 116H of the Health Services Act 1997 (NSW)
2. Decision at [88]
3. Decision at [93]
4. Decision at [95]
5. Decision at [97]
6. Decision at [101]
7. Decision at [65]
8. Decision at [124]
9. Decision at [128]
10. Decision at [127]
11. Tcpt p 11 (22-27)
12. Tcpt pp 25 (43) - 26 (6)
13. [2001] FCA 115 at [11]
14. [1970] 1 QB 537 at 546
15. (1983) 153 CLR 455 at 470
16. (1982) 1 IR 354 at 358
17. ibid.
18. Decision at [76]
19. Tcpt p 16 (4-7)
20. [1929] AR (NSW) 498 at 503-504 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: 22 November 2019