Health Services Union New South Wales v Health Secretary on behalf of Northern NSW Local Health District

Factual context

1. The disposition of this matter involves the construction to be given to the terms of the Award. While the evidence disclosed some factual differences between the parties, those differences are not particularly germane to the questions before the Commission. The parties agreed at the hearing that it was not necessary to resolve those evidentiary conflicts in order to dispose of the matter.
2. For these reasons, there is no need to outline in detail the evidence called by each party. It is sufficient to note that the notifier read the following: 1. a statement of Natasha Kolas, a Sexual Assault Worker employed by the respondent, dated 7 December 2018; and 2. two statements of Linda De Milford, also a Sexual Assault Worker employed by the respondent, dated 7 December 2018 and 4 March 2019.
3. The respondent read the following: 1. a statement of Cassandra Botha dated 12 February 2019. Ms Botha is currently employed as a Senior Advisor, Public Sector Industrial Relations for the NSW Industrial Relations branch within the People Strategy Group at NSW Treasury, but was formerly a Senior Workplace Relations Adviser for the Workplace Relations branch of the Ministry of Health; and 2. a statement of Tamahra Manson dated 30 February 2019. Ms Manson is the Violence Abuse and neglect Manager for Northern NSW Local Health District.
4. In broad terms, the extent to which there is consensus between the parties on the relevant facts provides a sufficient basis on which to resolve the interpretation issues that arise. That factual context is set out in the following paragraphs.
5. The respondent provides Sexual Assault Services ("Services"). The notification giving rise to the current proceedings relates specifically to the Richmond/Clarence Sexual Assault Services which operate out of Byron Bay and Lismore Base Hospital ("Hospital"). However, as the Award applies to the Services provided by the respondent across the State, the issues that arise are not confined to the Hospital or to the Northern NSW Local Health District.
6. The Services provide a 24-hour crisis response to children, young people and adults who have experienced sexual assault, indecent assault or attempted sexual assault. The Services involve the provision of integrated psychosocial and forensic examinations (including forensic medical examinations which are coordinated by a Sexual Assault Worker for purposes such as collecting evidence for criminal proceedings) and counselling response to victims of sexual assault. Counselling and support may be provided immediately after a sexual assault, and in the following weeks and months, to victims and to non-offending family members.
7. The respondent engages Sexual Assault Workers to deliver the Services. Sexual Assault Workers are qualified social workers with a Bachelor Degree in Social Work (or equivalent). They are responsible for coordinating the overall care of their clients including assessment of their physical, psychological, social and emotional wellbeing needs. Their duties include things such as providing both crisis counselling and ongoing counselling, coordinating specialist medical services, preparing and supporting victims of sexual assault for court proceedings, and consultation and advice to the community more generally.
8. The Sexual Assault Workers are employed under the Award.
9. Following notification of a recent sexual assault, whether through a crisis call or a referral, it is necessary for staff to perform "intake duties". These duties may include the provision of telephone counselling to a victim of sexual assault or a non-offending family member who has called on behalf of the victim, contacting police, doctors and hospital departments (such as emergency departments), and making reports including to the Family and Community Services Helpline to report incidents involving children.
10. Since November 2018, the respondent has employed a dedicated intake officer during normal working hours (8.30 am to 5 pm, Monday to Friday), who responds to crisis calls and referrals. The Sexual Assault Workers undertake this role when the dedicated intake officer is on leave or otherwise absent.
11. The respondent maintains an "on call" roster for intakes or crisis calls outside normal working hours. The on call function is shared between all of the Sexual Assault Workers and two external social workers. Each Sexual Assault Worker is rostered on call on average for one shift per week.
12. During the week, the on call work is rostered from 5.00pm until 8.30am the next day. On the weekend, the on call work is rostered for 24 hour periods (that is, from 8.30am on Saturday until 8.30am on Sunday, and from 8.30am Sunday to 8.30am on Monday).
13. The evidence traversed at some length the precise duties performed by Sexual Assault Workers when they are rostered on call. Each of Ms Kolas and Ms De Milford provided examples of the nature and extent of work that they had been required to perform whilst on call. In her statement, Ms Manson described the on call work required to be performed by Sexual Assault Workers as follows: "24. The functions performed while on call are somewhat limited. Work undertaken when on call does not reflect the full duties of Sexual Assault Workers during normal working hours. 25. The main function of the on call service is to provide crisis counselling and forensic medical intervention to children, young people and adults where a recent (ie within the last 5-7 days) sexual assault has occurred. A prompt response is critical to prevent or mitigate the post trauma responses and assess physical wellbeing and gather forensic evidence for the purpose of a police investigation. Crisis intervention in these matters is managed in the same way regardless of whether it is within normal working hours or after hours. 26. The Sexual Assault Worker gathers information to make an assessment about the timing and nature of the intervention required. A psychosocial assessment is conducted to determine the client's emotional, social, safety, medical and legal needs. The services provided are intended to be those that cannot wait until normal working hours due to the recency of the sexual assault. 27. The majority of referrals that result in a recall to work outside normal working hours relate to new clients rather than existing clients who would ordinarily already have support plans and programs in place. 28. During normal working hours, in addition to crisis intervention work, Sexual Assault Workers are engaged in case management work, court preparation, planned and ongoing counselling and community education. These functions are not undertaken as part of the on call role. 29. On call referrals may come from a number of sources, including from the Hospital Emergency Departments, from calls to Lismore Base Hospital directly from the individual seeking help, or from another agency such as Family and Community Services or the NSW Police. 30. The role of the on call worker is to assess the situation and determine the response required, including whether there is a need to see the client face to face, and whether an examination needs to be organized and if so when. This may involve talking directly to the individual who has been assaulted and/or to the referring agency, and/or relevant health staff to arrange the medical examination. 31. Generally, most of the new clients that are referred during the on call period are as a result of recent sexual assault incidents and therefore, in such circumstances face to face contact (rather than phone counselling) is required for crisis intervention, examinations and support services. Where the referral is from the NSW Police, a recall to duty is generally required because the police are aware of the referral processes for recent and last sexual assault. 32. Generally, phone calls are necessary to assess the need for and to coordinate the face to face intervention, which will often include contacting the forensic medical officer. In cases where a referral occurs in the on call period, it is often necessary to make arrangements for face to face contact and/or an examination to occur as soon as possible (unless it is decided this is not required) to ensure earliest support is provided to the victim. In acute cases, other services or agencies may also need to be contacted. There are significantly more acute matters involving adults [than] children. 33. To organise an examination, the Sexual Assault Worker needs to arrange for an appropriate medical officer. The on call worker is provided a list of available doctors to contact for adult matters and the on call Paediatrician for child matters. 34. The Sexual Assault Worker will discuss the details of the matter and determine whether a medical examination is required in collaboration with the medical officer. The medical officer and Sexual Assault Worker jointly conduct the assessment and the examination with the client wherever possible. The doctor helps determine the appropriate timing and need for an examination. For example, whether the examination needs to take place the same day to collect forensic evidence, or whether a medical examination can wait until normal working hours because it is outside of the forensic medical timeframes. Where an assault is historical, there may not be the immediacy in seeing the client or organizing an examination and it may be appropriate to do the initial assessment over the phone without being recalled to duty. 35. Any work undertaken as part of on call duties is required to be recorded in the patient's health care record. Since February 2018, this is in the patient's electronic medical records. There is a computer available in the forensic examination rooms at Lismore Base Hospital and Byron Bay Hospital and the documentation should be completed at the time of the intervention before the shift is finished. The purchase of laptops for staff (also around February 2018) enables staff to document work conducted at home that does not require a recall to duty, although the internet access is limited in some geographical areas and most staff are not using them. 36. In my role, I authorise recall to duty payments. I do this based on advice from the on call Sexual Assault Worker that they have been recalled to duty. It is up to the Sexual Assault Worker to use their professional judgement to decide if a recall to duty is necessary."
14. I observe for the sake of context that when Ms Manson made reference to the functions performed on call being "somewhat limited" I took her to be comparing those functions to the full range of duties that a Sexual Assault Worker might be expected to perform during her or his normal rostered shifts.

Issues in dispute

1. The dispute involves the construction of cll 8B and 8C of the Award, which are in the following terms: 8B. On Call Allowance - Social Workers and Sexual Assault Workers (i) This clause applies only to staff classified as Social Workers and Sexual Assault Workers under the NSW Health Service Health Professionals (State) Award or under any other Determination. (ii) An "on call period" is a period during which an employee including part-time employees is [sic] required by the employer, to be on call in accordance with subclause (iii) of this clause. (iii) Employees, including part-time employees, rostered to be "on call" and to provide a telephone counselling service during period of such "on call" shall be entitled to payment at the rate of one-third of the employee's normal pay for each hour of performing the above duty, provided that there shall be a maximum payment in respect of each "on call" period of two and one-half hours' pay. Provided that "on call" periods - (a) which commence on or after 9.00 a.m. Saturday and finish on or before 9.00 a.m. Monday should not exceed 12 hours; (b) which commence on or after 9.00 a.m. Monday and finish on or before 9.00 a.m. Saturday should not exceed 16 hours; and (c) where "on call" periods outlined in paragraphs (a) and (b) of this clause exceed the maximum allowed therein then such period in excess shall attract additional payment at the rate outlined in this subclause to a maximum of two and one-half hours' pay. 8C. Call Out Allowance - Social Workers and Sexual Assault Workers (i) This clause applies only to staff classified as Social Workers and Sexual Assault Workers under the NSW Health Service Health Professionals (State) Award or under any other Determination. (ii) "Call out" is the period over which an employee including part-time employees is required by the employer to return to duty. For the purpose of this definition, call out shall only apply to on call and unrostered time periods. (iii) Employees including part-time employees who are recalled to duty outside normal hours shall be paid a minimum of three hours at the appropriate overtime rate for each recall to duty subject to: (a) Where an employee is recalled to duty more than once in any one day, and the second or subsequent recalls commence within the period of the preceding recall for which payment would have been made under the minimum payment provision, payment for such recalls shall be made as follows: (1) A minimum payment as for three hours' work at the appropriate overtime rate shall be made in respect of the last recall. (2) Payment shall be calculated as if the employee had been continuously engaged on overtime from the commencement of work on the first recall until the expiry of the period in (1) above or completion of the work for which he/she had been recalled on the last occasion, whichever is the later. (b) Where an employee is recalled to duty more than once in any one day, and the second or subsequent recall does not commence within the period for which payment will be made under the minimum payment provision, the minimum payment for each such recall shall be as for three hours' work at the appropriate overtime rate. An employee, including part-time employees, where recalled to work as prescribed in subclause (ii) of this clause shall be paid all fares and expenses reasonably incurred in travelling to and from his/her place of work in accordance with clause 23, Mobility, Excess Fares and Travelling, of this Award. Where employees are recalled to work as prescribed in subclause (ii) of this clause the employee shall have at least eight consecutive hours off duty between the work on successive days. If, on the instructions of the employer such employee resumes or continues work without having had such eight consecutive hours off duty the employee shall be paid at double rates until the employee is released from duty for such period and the employee then shall be entitled to be absent until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
2. In its written submissions the notifier summarised the dispute in the following terms: "6. During periods of on call, Sexual Assault Workers may perform the following duties: i. Providing telephone counselling directly to existing clients who are distressed and do not feel as though they can wait until the next working day to speak to a Sexual Assault Worker; ii. Performing 'intake duties' following notification of a recent sexual assault. These duties may include the provision of telephone counselling to a victim of sexual assault or a non-offending family member who has called on behalf of the victim. These duties also include a range of other tasks such as contacting police, doctors and hospital departments (such as emergency departments), and making reports such as reports to the Family and Community Services Helpline to report incidents involving children; and iii. Returning to a hospital to see a victim of sexual assault or their family, or to attend a medical examination. 7. The dispute, put simply, relates to how Sexual Assault Workers should be paid when performing duties in the second category just described - that is, 'intake duties' following notification of an assault out of hours. The Union submits that those 'intake duties' include work that falls outside the meaning of the term 'telephone counselling' and that constitutes a recall to duty, even though the Sexual Assault Worker may not physically…return to a hospital." (Footnotes omitted)
3. The respondent summarised the dispute as follows: "20. This dispute relates to the way in which the District pays the SAWs for: (a) work performed on the telephone during the on call period (from home); and (b) the period for which the SAW is paid in instances where a recall to hospital is necessary. 21. In short, the District pays the SAWs: (a) The 'on call allowance' set out in clause 8B of the Award for all time the Sexual Assault Workers are on call. The allowance expressly includes 'telephone counselling service during period of such "on call"' (see clause 8B(iii)) and, as such, no additional amounts are paid if the SAWs are in fact required to undertake telephone assessments and co-ordination; and (b) The 'call out' rate (i.e. overtime) as set out in clause 8C of the Award is paid if the SAW is required to attend at the hospital during the on call period, and only for the time that the SAW is at the hospital - subject, of course, to a minimum period of recall, being three hours - and not any associated travel time to and from home/hospital. 22. At the heart of this dispute is the proper construction and meaning to be attributed to the phrase 'telephone counselling service' in clause 8B(iii) of the Award."
4. The parties agreed that the questions for determination by the Commission in these proceedings ("Agreed Questions") are as follows: "1. In respect of Clause 8B On Call Allowance - Social Workers and Sexual Assault Workers, the question/s to be resolved are: (a) Are the duties performed by Sexual Assault Workers between receiving notification that results in a 'call out' and presenting at the hospital properly classified as a 'telephone counselling service'? (b) If the answer to (a) is 'No', do the provisions of subclause 8C(iii) apply when such duties are performed? 2. In respect of Clause 8C Call Out Allowance - Social Workers and Sexual Assault Workers, the question/s to be resolved are: (a) Is the calculation of a 'call out' intended to apply: (i) From the time the on call employee receives the notification that results in the recall to duty up to and including the time at which the employee returns home; or (ii) Only to the period during which the employee attends the hospital[?]."

Legal principles on interpretation of awards

1. The proceedings were brought by the notifier pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act").
2. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act.
3. The language of s 175 makes it clear that the powers of the Commission under the section do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57] - [58].
4. The approach to the construction of industrial instruments is well settled and was not in contest between the parties. In New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 the Full Bench conveniently, with respect, summarised the principles of award interpretation as follows: "21. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 22. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.' 23. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038. 24. For completeness, we affirm these principles and apply them to the construction of the Status Quo Provision the subject of this appeal."
5. I have sought to apply these principles in answering the Agreed Questions.

Consideration

1. The notifier's case may be summarised as follows: 1. Drawing on various references, the notifier submitted that the term "counselling" should be defined to mean: "A confidential collaboration between the Sexual Assault Worker and their client to promote the client's mental health and wellbeing, involving direct contact and communication between the Sexual Assault Worker and the client for the purposes of providing help and advice to the client." 1. Applying this definition, the phrase "to provide a telephone counselling service" which appears in cl 8B(iii) is to be read as being confined to providing counselling directly to clients via telephone. 2. All other duties, such as intake duties, performed by the Sexual Assault Worker whilst on call would fall outside the definition of "telephone counselling service" and therefore not be caught by cl 8B. 3. There is no requirement under cl 8C that a recall to duty must involve a return by the Sexual Assault Worker to the workplace. As a result, any time spent by the Sexual Assault Worker performing duties other than "counselling" as defined should attract the call out allowance under cl 8C. 4. There is therefore no rational basis on which the entitlement to payment of the call out allowance should be confined to the time during which the Sexual Assault Worker is at the Hospital.
2. The notifier's submissions as to the meaning to be given to the term "a telephone counselling service" face several difficulties. Firstly, the construction advanced by the notifier does not sit comfortably with the words "a" and "service" which appear in cl 8B(iii). If it had been the intention simply to refer to telephone counselling, why would it be necessary to refer to the provision of "a telephone counselling service"?
3. Secondly, cl 8B allows for payment of an on call allowance irrespective of whether the Sexual Assault Worker performs work or not. This is more consistent with a "service" being available rather than counselling having to be provided.
4. Thirdly, the evidence does not support the clear delineation between "counselling" and other intake duties. Ms Manson provided the following evidence under cross-examination: "Q. Other work that a sexual assault worker may be required to perform, work such as coordinating forensic examinations, that would be other work, separate work outside of the definition of 'counselling'. Do you agree with that distinction? A. No. It's a - I'll qualify that with it's a component of that counselling intervention. You need to do those things in order to provide the counselling. (Tcpt p 29 (6-11)) … Q. So, for example, if a sexual assault worker is making telephone calls to various medical practitioners or to hospital Emergency Departments to determine who is available to come in and perform an examination and when such an examination may be performed and what needs to be done to enable an examination to be performed. So, what I'm putting to you is that that work is part of co-ordinating a forensic examination and, while it's related to the counselling that is provided by the sexual assault worker, it is not strictly part of the counselling that is provided by the sexual assault worker. It is, instead, distinct and separate from that counselling? A. Yes, it's distinct but no, it's not separate. Q. And it's not separate because one goes hand-in-hand with the other? A. Yes, that's right." (Tcpt p 31 (8-20))
5. In re-examination Ms Manson offered the following evidence: "Q. …The direct collaboration between client and counsellor, if that is a part or critical part of what counselling undertaken by the sexual assault workers is, what are the other parts? So what else is comprised or forms part of counselling, as you understand it, undertaken by the sexual assault workers? A. So, initially it would be the psychosocial assessment, which is determining that particular client's safety in terms of their physical safety and their psychological safety. It is about determining are there any practical things that need to be attended to for that particular person. It involves assessing whether that person needs any specialist assessment of intervention from other specialist services, including mental health assessment, where that might be necessary. It could also include assessing whether any report to the Child Protection Helpline needs to occur. It's about gathering additional information about the timing of the most recent sexual assault to assess whether or not a forensic medical examination is required." (Tcpt p 35 (9-22))
6. This evidence is inconsistent with the notifier's contention that "counselling" is limited to direct contact between the counsellor and the client. It would at the least support a construction of "telephone counselling service" that is broader than that pressed by the notifier.
7. Fourthly, although there is nothing in cl 8B that requires a Sexual Assault Worker to perform duties in order to receive the on call allowance, the respondent adduced evidence that the quantum of the allowance payable under the Award is significantly higher - in some cases by a multiple - than similar allowances paid to employees covered by comparable awards. This evinces not only an expectation that Sexual Assault Workers will be required to perform duties whilst they are rostered to be on call, but suggests that the allowance had been set at a rate to compensate them for those duties.
8. In this context, Ms De Milford gave evidence that it would be "quite rare" in her experience for a client to call a counsellor out of hours solely to receive counselling. She could recall it occurring only two or three times since she commenced working as a Sexual Assault Worker in February 2013.
9. To a similar effect, Ms Manson stated that it would be rare for an existing client to contact a Sexual Assault Worker during on call hours simply for the purposes of obtaining counselling. She suggested it would happen less than 10 times a year. She stated that it was not a regular part of the on call service which was very much directed towards crisis situations.
10. There is a further difficulty in this regard, in that there is no clear evidence that would allow proper conclusions to be drawn as to the frequency with which a Sexual Assault Worker has to perform duties when they are rostered on call, and the amount of work that will be involved. Ms De Milford and Ms Kolas each gave evidence of situations where they have been required to perform considerable duties whilst on call, but these are at most examples. It was not suggested by either witness, and the respondent certainly did not accept, that these examples are reflective of the work performed in the majority of cases in which an employee is on call.
11. Fifthly, cl 8 of the Award is titled "Overtime". Clause 8(vii) provides as follows: Employees required to work overtime after leaving the employer's premises to provide a technology support resolution or clinical appraisal remotely without onsite presence, shall be paid for such work at the appropriate overtime rate, with a minimum of one hour at such rates. This clause shall not apply to employees covered by Clause 8b On Call Allowance - Social Workers and Sexual Assault Workers, of this Award. (Sic)
12. This clause anticipates work being performed by certain employees "remotely without onsite presence", in return for which overtime is payable. The specific exclusion of Sexual Assault Workers indicates an intention that any work that they perform "remotely without onsite presence" is compensated by the on call allowance provided for in cl 8B.
13. On the meaning to be given to the phrase "a telephone counselling service", the respondent adduced evidence of proceedings conducted in 1979 by the Public Hospital Professional Staff (State) Conciliation Committee, relating to a proposed variation to the Public Hospital Social Workers (State) Award, which was said by the respondent to be a predecessor award to the Award. That evidence included a transcript of proceedings before the Conciliation Committee on 10 January 1979 and a decision by the Chairman of the Conciliation Committee dated 17 January 1979.
14. I admitted this evidence over objections made by the notifier on the basis that I would give consideration to the notifier's submissions in determining the weight to be given to it.
15. The proceedings in 1979 appear to relate to a claim by the Public Service Association of New South Wales to amend the relevant award to include a provision for on call allowances for Sexual Assault Workers which is similar to that which appears in the Award. In particular, the proposed clause contained the same language as appears in cl 8B(iii) of the Award, namely the reference to providing "a telephone counselling service". The evidence adduced in the 1979 proceedings suggested that the clause was intended to compensate Sexual Assault Workers for performing a range of duties beyond direct telephone counselling to victims.
16. I understood the respondent's contention to be that the 1979 decision had the effect of including the precursor to cl 8B(iii) into the predecessor to the Award. However, it appears that the application for a variation to the award was ultimately unsuccessful in the terms sought, although this is not entirely clear.
17. The Public Hospital Social Workers (State) Award was rescinded by Grayson DP of this Commission on 12 December 2007. On the same day his Honour amended the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award to, amongst other things, include what appear to be the predecessors to cll 8B and 8C of the Award. There is no evidence as to what transpired between 1979 and 2007 to give context to these developments.
18. Given the findings that I have otherwise made on the evidence presented by the parties, it is perhaps unnecessary to become too distracted by the 1979 evidence. I have considered the evidence but do not afford it particular weight in the construction of cl 8B(iii).
19. I acknowledge that to adopt the respondent's construction of cl 8B(iii) might be said to leave the words "and to provide a telephone counselling service during period of such 'on-call'" largely otiose. That is, if the entitlement to the allowance arises simply as a result of being rostered to be on call, what do the words add? In my view, they are to be construed as outlining the purpose for which the Sexual Assault Worker is rostered to be on call: they are on call in order to provide a telephone counselling service, as required.
20. For these reasons, I am not satisfied that the term "a telephone counselling service" is properly to be interpreted as being confined to providing telephone counselling directly to clients via telephone, as the notifier contended. As a consequence the better construction of cl 8B(iii) is that it extends to encompass not only telephone counselling but all other "intake duties" that a Sexual Assault Worker will be required to perform whilst they are on call.
21. It follows that the on call allowance payable under cl 8B should be regarded as compensating Sexual Assault Worker for performing all of those duties.
22. I turn now to cl 8C. There are two issues to be addressed. Firstly, whether the clause requires the employee to return to the employer's workplace to qualify for the call out allowance, and, secondly, whether the call out allowance includes the time spent by the employee travelling between work and home. It is perhaps trite to say that the Award makes no express statement in either regard.
23. The first thing to note about cl 8C is that it is not consistent in its use of language. The definition of "call out" in cl 8C(ii) makes reference to "return to duty". The opening words of cl 8C(iii) refers to employees who are "recalled to duty". The second paragraph of cl 8C(iii)(b) uses the phrase "recalled to work".
24. In reconciling the use of these several terms, I observe that the second paragraph in cl 8C(iii)(b) makes reference to an employee being "recalled to work as prescribed in subclause (ii) of this clause". This internal cross-reference, and in particular the use of the term "as prescribed", suggests that the three terms that are used in the clause are intended to be synonymous. I will proceed on that basis, and will use "recall to duty" for the sake of consistency.
25. In approaching cl 8C, I am mindful that cl 8B applies not only to Sexual Assault Workers but also to Social Workers. There is, understandably, no evidence before me regarding Social Workers. In the circumstances I am reluctant to posit a definitive construction of cl 8C which might have implications beyond the matters arising in these proceedings, in the absence of clear and cogent evidence which would allow for those implications to be understood and addressed.
26. Further, I have already found that cl 8B should be construed as providing compensation for all "intake duties" performed by a Sexual Assault Worker whilst they are on call. There is no evidence to suggest that a Sexual Assault Worker would be required to perform any other duties whilst on call. If it is assumed that no such other duties are performed, it would appear to follow as a practical matter at least that cl 8C would only apply when a Sexual Assault Worker is required to return to the Hospital.
27. For these reasons, it is not necessary or perhaps appropriate to seek to finally determine the question as whether the clause requires the employee to return to the employer's workplace to qualify for the call out allowance. I will make only the following observations.
28. The notifier's submissions seem to require that "recall to duty" be read as meaning "be required to perform duties (other than providing telephone counselling)". Leaving aside my findings at [44] and [45] above, the fact of being "on call" carries with it an expectation that the employee may be required to perform some duties, so there must be some work for the words "return" and "recall" to do. In light of the evidence presented, it would seem artificial to delineate between those duties that would not result in an employee being "recalled to duty" (telephone counselling directly to clients) and those which did (all other duties).
29. Further, I note that the second paragraph in cl 8C(iii)(b) allows for an employee to be paid "all fares and expenses reasonably incurred in travelling to and from his/her place of work". This entitlement might be said to evidence an intention that the recall to duty will require the employee to return to the employer's premises. That being said, a similar entitlement appears in cl 8(viii) of the Award, despite the fact that cl 8(vii) allows for certain overtime work to be performed "remotely without on-site presence". Clause 8C(iii)(b) is relevant but not determinative of the issue.
30. The notifier drew my attention to Polan v Goulburn Valley Health [2016] FCA 440. In that case Mortimer J was considering the meaning and effect of provisions in enterprise agreements that had been made under the Fair Work Act 2009 (Cth) and its predecessor the Workplace Relations Act 1996 (Cth). Her Honour found (at [77]) that there was nothing in the text or context of the relevant provisions to indicate that an employee could only be recalled to perform duties at the employer's workplace. It followed that the employee in that case was entitled to be paid overtime for work which was performed away from the employer's workplace.
31. I do not read Polan as being of particular assistance to the notifier in this case. Her Honour's decision was expressly determined by the terms of the instruments under consideration by her. The case does not stand as authority for the proposition that overtime will always be available for all work performed by an employee outside ordinary working hours, whether or not that takes place at the employer's premises. Each case will be determined by the terms of the relevant instrument.
32. I turn now to consider the period for which any call out allowance should be paid. Based on my earlier findings regarding cl 8B, the call out allowance would not be paid in respect of the time spent by a Sexual Assault Worker performing "intake duties" for which the on call allowance is paid. On the evidence before me, the call out allowance would in most circumstances only become payable to a Sexual Assault Worker when they are required to return to the Hospital. It then becomes a question of determining whether the allowance should be paid for the period from the employee leaving their home until they return to their home, as the notifier contended, or only for the time spent at the Hospital, as submitted by the respondent.
33. In large part, the notifier's position in relation to the interpretation of cl 8C was driven by its preferred construction of cl 8B. That is, once duties are performed beyond direct telephone counselling, the employee has been recalled to duty. It follows that the entitlement to be paid the call out allowance under cl 8C arises at that point and continues. This would extend to include travel time.
34. The notifier submissions on this point are obviously undermined by my earlier findings. However, I do not consider that this is the end of the matter.
35. The respondent placed reliance on cl 23(i) of the Award, which is in these terms: 23 Mobility, Excess Fares and Travelling For the purpose of this clause accustomed place of work shall mean the location where an employee is regularly required to commence duty by the employer. (i) An employee shall be required to proceed to the accustomed place of work and return home once on each ordinary working day or shift in the employee's own time and at the employee's own expense. …
36. The respondent submitted that cl 23(i) provided context in which the term "recalled to duty" in cl 8C is to be considered. That is, it applies to circumstances where an employee is required to return to the Hospital during the on call period and as such, it is only the time the employee spends at the Hospital (subject to minimum hours requirements) which attracts payment of the call out allowance.
37. The respondent's reliance on cl 23(i) of the Award is misguided. While the provision makes reference to an employee travelling to and from work in their own time and at their own expense, this is subject to two significant caveats. Firstly, an employee is only required to do so "on each ordinary working day or shift", and, secondly, only once on each such day.
38. These caveats are not met when an employee who is rostered to be on call is recalled to duty. On the terms of cl 8C(ii), a call out will only apply to "on call and unrostered time periods". By definition this would seem to exclude an "ordinary working day or shift". Further, the concept of a "recall" to duty suggests that it is a second or subsequent occasion on a given day that the employee will be required to work. It follows that cl 23(i) is of little assistance in determining an employee's entitlement to payment under cl 8C.
39. Of more relevance is the language in cl 8C(iii)(b), to which I have already referred. It provides in mandatory terms for an employee to be paid all fares and expenses reasonably incurred in travelling to or from his or her place of work for the purposes of performing recall duties. I accept, as Ms Bulut submitted, that the paragraph does not state that the employee will be paid for travel time, but just for fares and expenses. However, if an employee is entitled to reimbursement of travel costs, when under clause 23(i) they would otherwise not be paid, it indicates that the travel for the purposes of recall is something outside the ordinary course of events.
40. In this context, there would be nothing inconsistent with the scheme of the Award as a whole that the employee would be paid for the time spent travelling to the Hospital from his or her residence, and return.
41. In this regard I am mindful of the following evidence provided by Ms Manson in her statement: "12. One of the essential criteria to be a Sexual Assault Worker at the Richmond/Lismore Base Hospital Sexual Assault Service is that individuals live within 50 km or one hour's drive of Lismore Base Hospital. This is to facilitate the NSW Health Policy requirement (Section 5.4 of PD2005_607 Sexual Assault Services Policy and Procedure Manual (Adult)) that all clients who present in crisis following a recent sexual assault should be seen by a Sexual Assault Worker within 1 hour of presentation. …"
42. It follows from this evidence that any time spent by a Sexual Assault Worker travelling to or from the Hospital having been recalled to duty will necessarily be limited in time.
43. Further, cl 8C is not confined to employees who are on call (and who therefore might have a reasonable expectation of being recalled to work) but confers an entitlement to any employee who is not rostered to work. It does not seem unfair or unreasonable that an employee who is not rostered to work should properly be compensated for the time spent travelling to and from the workplace if they are required to return to work. There seems no compelling reason why in those circumstances the employee should give up their own time to the employer.
44. On this basis I find that cl 8C of the Award applies to time spent by a Sexual Assault Worker travelling to the Hospital from his or her residence, and returning. It could reasonably be inferred that this would entail the Sexual Assault Worker travelling by the quickest route.

Answers to Agreed Questions

1. Based on the foregoing discussion, I cannot and will not answer the Agreed Questions in a "yes or no" way, despite the closed nature of the questions. I answer the Agreed Questions as follows: 1(a) Duties performed by Sexual Assault Workers between receiving a notification that results in a recall to duty and presenting at the Hospital are properly classified as a "telephone counselling service", other than for the time spent by the employee in travelling from his or her home to the Hospital. (b) For an employee who is rostered on call, the provisions of cl 8C(iii) apply only to the time spent travelling between the employee's home and the Hospital. 2(a) The call out period should be calculated from the time that the employee leaves their home to return to the Hospital until the employee returns home.

Alleged discrimination

1. Having drawn these conclusions it is necessary finally to address a submission made by the notifier to the effect that the respondent's arguments on the construction of the Award, if accepted, would have a discriminatory effect. The notifier's contentions are summarised in the its outline of submissions as follows: "36. Only women are, and can be, employed as Sexual Assault Workers within Sexual Assault Services operated by the respondent. 37. The inescapable effect of the respondent's approach to the interpretation of subclauses 8B and 8C of the Award is that women would be paid less. There would be instances where female Sexual Assault Workers receive only the on call allowance for the performance of duty while on call, whereas men would be paid for all time worked as a recall to duty in substantially the same circumstances. … 40. On that basis, it is appropriate for the Commission to have regard to the fact that the interpretation urged by the respondent in this dispute will have the effect of lowering the pay and entitlements of a group of employees made up exclusively of women.
2. In his oral submissions, Mr Edghill expanded on these submissions as follows: "EDGHILL: So, Commissioner, for example, according to the terms of the award, an employee who is not a social worker or a sexual assault worker, according to subcl 8(i), which is the overtime clause, those other employees are required to be paid for all time worked outside of their ordinary hours at overtime rates. According to subcl 8(ii), people who are recalled for duty shall be paid for all time worked at the appropriate rate, with a minimum of four hours at such rates. And according to subcl 8(vii), an employee who is required to work overtime after leaving the employer's premises to provide a technology support resolution or clinical appraisal remotely, shall be paid for such work at the appropriate overtime rate, with a minimum of one hour at such rates. So, we say that demonstrates clearly that the entitlements for workers other than sexual assault workers, who perform work out of hours, are more beneficial than the entitlements that are provided to sexual assault workers, particularly if the respondent's approach is applied. So for example, Commissioner, if an employee, who is [not] a sexual assault worker, is recalled to perform some duty whilst on call or whilst absent from work, and they are required to work for two hours in performing that duty, that would be a recall to duty and they will be paid a minimum of four hours at overtime rates, which would equate to seven hours of their pay. So, two hours at time and a half and two hours at double time. If an employee, who is not a sexual assault worker, is recalled to perform duty but that duty is providing a remote technical support resolution or a clinical appraisal, so again the person doesn't attend the workplace but they are doing that other work remotely, then they are paid for all time worked and, in the case of - using the same example - the employee who's recalled to perform that work and who works two hours, they will be paid a minimum of two hours at overtime rates, which would equate to three hours of their ordinary pay, being two hours at time and a half. So, we've got the worker recalled to duty who is not a sexual assault worker, who works for two hours, who gets seven hours of pay. They're paid for all time worked, with a minimum. We've got the employee who is not a sexual assault worker, who is recalled to perform duty for two hours, which is that remote appraisal or remote technical support work. They're paid for all time worked and, if it's two hours, they're paid for three hours. In the case of a sexual assault worker, if they are required to perform duties whilst on call, duties which do not involve them physically returning to the workplace, they could be required to perform two hours' worth of those duties. Those employees are not paid for all time worked. They're paid one-third of their hourly pay for each hour while they are on call, up to a maximum of two and a half hours' pay. … So, we say, Commissioner, that the interpretation urged by the union would result in more instances of sexual assault workers being paid for the actual work that they do than would the interpretation urged by the respondent. By adopting our interpretation of telephone counselling, the Commission restricts the occasions where this female workforce can be required to work out of hours without payment that is provided to other classifications covered by that award. This is a matter that the Commission can rightfully consider in accordance with those provisions we have referred you to, both in the award and in the Act and we say it provides further reason for the Commission to reject the approach urged by the respondent and to accept the approach urged by the union. Those are my submission[s]." (Tcpt pp 43 (33) - 45(3))
3. It is common ground that Sexual Assault Workers are almost exclusively women. It is a requirement in all but one local health district that Sexual Assault Workers be women. As a result, any unfair result flowing from the application of cl 8B (which it is submitted would flow from the clause being applied in the manner pressed by the respondent) would have a disproportionate effect on women. By contrast, other provisions in the Award allow for employees (who will not be exclusively women) to be paid for all the hours they work.
4. I do not accept the notifier's submissions. As already stated, the on call allowance has been set at a level which is significantly higher than that which applies to employees under comparable awards. It will be paid irrespective of whether a Sexual Assault Worker performs any duties when rostered on call or not. There is no evidence before the Commission that over time a Sexual Assault Worker does not receive fair and reasonable compensation for all hours worked. While the on call allowance might seem unreasonably low in a circumstance where an employee performs many hours of intake duties while they are on call, there is insufficient evidence to be able to draw a conclusion that such examples are so reflective of a Sexual Assault Worker's experience that through a process of "swings and roundabouts" the worker will not receive fair and reasonable compensation for all time worked.
5. Further, there is no evidence of a male comparator, in substantially the same circumstances, being treated more favourably than a female Sexual Assault Worker. The notifier's submissions on the question of discrimination are drawn more from principle and assumption than from evidence.
6. Finally, the notifier's submissions are premised on the application of the clauses to Sexual Assault Workers. They ignore the fact that the clauses apply also to Social Workers. There is no evidence that would enable any assessment to be made as to whether the interpretation of the clauses as pressed by the respondent would have any discriminatory effects on that category of employee.

Direction and orders

1. I have found that cl 8C of the Award applies to time spent by a Sexual Assault Worker travelling between their home and the workplace. On the evidence the respondent has not been paying the Sexual Assault Workers for that travel time since approximately 8 March 2017.
2. I direct the parties to confer with a view to agreeing on what amount, if any, is to be paid by the respondent to Sexual Assault Workers as a result of my findings in respect of cl 8C of the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2018.
3. I make the following orders: 1. The matter is adjourned to 13 September 2019. 2. Liberty is reserved to the parties to have the matter relisted on reasonable notice. 3. If that liberty is not exercised by 13 September 2019 the matter will be closed administratively. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2019