Health Services Union NSW v Health Secretary in respect of Central Coast Local Health District

Case for the HSU

1. On 15 February 2021, the HSU filed extensive written submissions on the proper interpretation of Clause 13 of the Award. It was submitted that subclause 13(ii) applied to the affected employees because they had been directed to report for duty at Gosford Hospital which was not their "accustomed place of work", which was Wyong Hospital.
2. The HSU analysed Clause 13 of the Award as follows: 10. Clause 13 as a whole can be seen as dealing with the conditions by which the Secretary may lawfully exercise their right to make directions as to the location where work shall be performed and to provide for a change to employees' work location permanently and the process which must be followed. 11. It is worth stepping through the overall structure of the clause to understand the immediate context into which the words of Cl. 13 (ii) (a) appear. a. Clause 13 opens with a definition for accustomed place of work - the site or campus where an employee is regularly required to commence duty by the employer. b. Clause 13 (i) sets out what might conveniently be described as the ordinary duty of attendance. In effect the standing obligation for an employee. c. Clause 13 (ii) sets out the arrangements for a departure from that 'ordinary' in the circumstances of a direction from the employer. The subordinate subclauses go on to describe the conditions that apply in such a circumstance. d. Clause 13 (iii) provides for a decision or determination by the employer that the employee(s) are to have a permanent change to a new accustomed place of work. The subordinate subclauses provide for the conditions that apply in that circumstance. e. Clause 13 (iv) sets out an exception to the provisions for employees who are appointed to regularly perform relief and employees appointed to perform duties at more than one place of work. Subclause (b) goes on to provide the conditions that will apply to an otherwise exempt employee. f. Clause 13 (v) provides that an employee will not receive payment unless they have incurred additional expenditure in having to report to an alternate place of work. g. Clause 13 (vi) provides a declaratory statement that travel to an alternative place of work shall in all instances be by most direct route. It might be seen as a guard against 'gaming' the entitlement.
3. The HSU submitted that the phrase "the employee shall travel to and from the alternative place of work in the employer's time" in subclause 13(ii)(a) meant that the excess travel time was to occur during the time of the employee's rostered shift. Where the excess travel time occurred outside of the time of the employee's rostered shift, that excess travel time was to be paid at overtime rates.
4. It was common ground that the affected employees were to be "temporarily relocated to Gosford Hospital". On that basis, subclause 13(iii), which deals with permanent relocations, did not apply to the affected employees.

Case for the Health Secretary

1. The Health Secretary relied on the following written submissions (footnotes omitted): 1. This is a dispute about the construction of cl 13 of the Health Employees Conditions of Employment (State) Award 2019 (Award) and its application to a group of employees in the Wyong Hospital Sterilisation Services Department (Wyong SSD) who have been relocated to Gosford Hospital for approximately six months (relocated Wyong SSD employees). 2. The Secretary's position is that: a. For the relocated Wyong SSD employees, Gosford Hospital is their 'accustomed place of work' within the meaning cl 13. For the period of their relocation, they are 'regularly required to commence duty' at that location within the ordinary meaning of those words. It is not necessary for it to be their permanent place of work. b. It follows that sub-cl 13(ii) does not apply to the relocated Wyong SSD employees, and they are not otherwise entitled to any payment in relation to their travel. c. Even if sub-cl 13(ii) applies to the relocated Wyong SSD employees, they are not entitled to pay at overtime rates for their excess travel time, only at ordinary rates. ………………….. Background 3. From 12 December 2020 until late May 2021, the Wyong SSD is closed for refurbishment. All sterilising services previously delivered at the Wyong SSD have been transferred to Gosford Hospital. As a result, eight Wyong SSD employees (six full-time and two part-time) have been relocated to Gosford Hospital for the period of the Wyong SSD closure. These are the relocated Wyong SSD employees who are the subject of this dispute. …………………. The proper construction of cl 13 5. The HSU's approach to construing cl 13 commences at sub-cl (ii)…, but the proper starting point is sub-cl (i). As the HSU acknowledges…, sub-cl (i) provides for the 'ordinary duty of attendance' or the 'standing obligation' of employees in relation to travel. The obligation is for employees 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'. This means the starting point under cl 13 is that employees' travel time and costs are on their own account. 6. Subclause (ii) identifies particular circumstances, falling outside the ordinary position in sub-cl (i), in which employees have entitlements associated with their travel. An employee is eligible for the entitlements in sub-cl (ii) only where the employee is 'directed to report for duty to a place of work other than the employee's accustomed place of work' (emphasis added). Accordingly, what determines whether the employee remains at the starting point in sub-cl (i) (in which they have no travel entitlements) or, instead, is eligible for the entitlements conferred by sub-cl (ii), is whether or not the employee is travelling to and from their 'accustomed place of work'. 7. 'Accustomed place of work' is expressly defined, in the first paragraph of cl 13, as 'the site or campus where an employee is regularly required to commence duty by the employer'. It is this definition that must be applied in determining whether an employee's situation falls within sub-cl (i) or sub-cl (ii). It has two important features. 8. First, the central concept in the definition is the concept of regularity. As the HSU recognises…, 'regularly' is a word that connotes pattern, not length of time, or permanency. The Shorter Oxford Dictionary defines 'regular' as (among other things) 'having a form, structure, or arrangement which follows some rule or principle', or 'characterized by the presence or operation of a definite principle; steady or uniform in action, procedure or occurrence; esp. recurring or repeated at fixed times, recurring at short uniform intervals', or 'habitually or customarily used, received or observed; habitual, constant'. The Macquarie Dictionary defines 'regular' as (among other things) 'usual, normal, customary' or 'conforming in form or arrangement'. This is consistent with the ordinary meaning of 'accustomed'. It is also consistent with the meaning given to 'regular' in other cases. 9. It follows that, as a matter of ordinary language, an arrangement may be 'regular' - having a stable or uniform pattern - without persisting for any particular period of time or being intended to operate on a permanent basis. There is nothing perverse about the concept of a 'regular' pattern of work that is for a fixed or predetermined term. 10. Second, what must be regular in the definition of accustomed place of work is the 'require[ment] to commence duty' by the employer. This directs attention to the pattern of work determined by the employer which, under cl 4 of the Award, must generally be reflected in a roster made known to employees at least two weeks in advance. Once that is understood, there is nothing 'absurd' or otherwise problematic about the idea that an employee's accustomed place of work is determined prospectively... 11. It follows that, on the proper construction of cl 13: a. The first question to be asked in determining whether sub-cl l J(ii) applies to an employee's situation is, what is the employee's 'accustomed place of work'? b. That is a question of fact, to be determined by asking whether the pattern in which the employer has required the employee to attend a work location is sufficiently stable or consistent in its structure that it can be described, in ordinary language, as 'regular'... c. If a work location is a place where the employee has regularly been required to commence duty by the employer in this ordinary sense, the ordinary or standing obligation in sub-cl (i) applies, and the entitlements under sub-cl (ii) are not available. 12. The HSU seeks to avoid this result by contending that sub-cl 13(iii) 'limits the circumstances where an accustomed place of work may change', with the result that sub­cl (ii) applies to any non-permanent change of work location… The effect of that contention is that the only way an accustomed place of work may change is on a permanent basis. That contention should not be accepted, for three reasons: a. First, it would make the words 'on a permanent basis' in sub-cl (iii)(a) superfluous, contrary to the principle that all words in an instrument should normally be given effect. b. Second, it would have the effect of reading a requirement of permanence in to the definition of 'accustomed place of work' when no such requirement appears in the text of the definition, nor is it implicit in the concept of regularity for the reasons in paragraph 8 above. c. Third, it is inconsistent with the natural reading of sub-cl (iii), which is that it deals with a particular kind of change to an accustomed place of work: one that the employer has determined will occur 'on a permanent basis'. The sub-clause imposes additional consultation obligations on the employer in those circumstances, but it does not detract from the employer's prerogative to change an employee's accustomed place of work, nor does it confer any entitlements on employees after their accustomed place of work changes. In other words, once the change occurs, the employees fall into the ordinary position in sub-cl (i). This natural reading, unlike the HSU's reading, means that sub-cl (iii) sits in harmony with the other sub-clauses of cl 13: it does not detract from or limit the definition of 'accustomed place of work' or the operation of sub-cl (i) or the other sub-clauses, but it does promote fairness by requiring an additional step of notification and consultation with employees who are going to be moved permanently. 13. None of the other matters raised by the HSU justify a departure from the natural and ordinary reading of cl 13 as set out above: a. Although sub-cl (ii) may be 'beneficial'…, that is not a licence to 'strain' or 'exceed' a fair reading of its language, and it requires a proper understanding of the benefits intended to be conferred. On a fair reading of the language of sub­ cl (ii), it is intended to confer benefits only where an employee is directed to a place of work other than their accustomed place of work. That calls attention to what is the employee's accustomed place of work, which is properly resolved in the manner set out above. b. It is not correct that sub-cl (iv)(a) 'suggests that an employee cannot be taken to have more than one accustomed place of work'. Sub-clause (iv)(a) addresses a situation in which an employee is 'specifically employed'- that is, employed on the basis that they are - to perform duties in more than one place of work. That is different from a situation in which an employee's accustomed place of work changes and it does not influence what occurs in that situation. c. It is not correct that the Secretary's construction means that cl 13 is 'silent' or contains a 'void' in relation to non-permanent changes to work location… Rather, any change to an employee's accustomed place of work falls into the ordinary position in sub-cl (i) (such that the employee is not eligible for entitlements under sub-cl (ii)), although a permanent change to an accustomed place of work is subject to the additional consultation requirements in sub-cl (iii). d. To the extent there are broader complaints of unfairness…, it should be kept in mind that the Award contains protections for employees against arbitrary or 'spontaneous' changes including a general requirement to notify rosters at least two weeks in advance (cl 4(ii)), dispute resolution procedures (cl 26), and a requirement to consult with the HSU in relation to major workforce changes (cl 35). Significant consultation occurred in this case over a period of six months. 17 e. It is accepted that some minimum period of time is needed to establish a pattern of work that can properly be described as 'regular'. This is the sense in which cl 13 calls for a line-drawing exercise... Whether a particular case falls on one side of the line or the other will be a matter of judgment on the facts of a given case and it is not suggested that a 'bright line' can be drawn. However, the need to determine whether a case falls on one side of the line or the other is not a reason to depart from the ordinary meaning of cl 13, and is not avoided by the HSU's construction… 14. The Secretary's construction is consistent with the explanation for the introduction of cl 13 recorded in the Department of Health Circular 88/100 dated 4 May 1988 (Circular), and the related reasons for the decision of Commission McArdle that varied the Award to include cl 13. The Circular describes a Memorandum of Agreement which formed the basis of a 4% wage increase. '[O]ne of the major features' of the agreement was the provision of 'full flexibility in the movement of staff within hospitals, institutions and area health services', with cl 13 said to 'apply where staff are moved' in this way. The capacity to move staff was said to be subject to an expectation that it be used reasonably, that staff would be relocated in accordance with their skills, experience and qualifications, that regard should be had to the reasonable concerns of staff '[w]ithout detracting from management rights', and that consideration should be given to seeking volunteers for transfer. Reference was also made to the requirements of notice and consultation for employees required to 'report to a new accustomed place of work on a permanent basis'. None of those matters indicated a restriction on the Department's capacity to relocate employees other than on a permanent basis, or a requirement to pay any entitlements in those circumstances. Commissioner McArdle's reasons for decision accepted the Department's proposals and reasons for them as set out in the Circular. 15. These matters reflect the fact that the prerogative to relocate employees is part of the Secretary's overarching prerogative to fix the conditions of employment of NSW Health Service Staff under s 116A of the Health Services Act 1997 (NSW). Clause 13 of the Award mitigates some consequences of that prerogative being exercised, in defined circumstances. It was not intended to intrude generally on its exercise, or to provide any generalised form of relief for employees who are relocated. 16. For these reasons, cl 13 should be construed as set out in paragraph 11 above. Application to the relocated Wyong SSD employees 17. For the period of their relocation to Gosford Hospital, the relocated Wyong SSD employees have been 'regularly required to commence duty' at Gosford Hospital within the ordinary meaning of those words. That is because: a. the Central Coast Local Health District (CCLHD), on behalf of the Secretary, has notified them that their place of work is now Gosford Hospital; b. since their relocation, they have been rostered to work at Gosford Hospital on a stable and uniform basis, with all of their hours of work being undertaken at Gosford Hospital in the same pattern as it was at Wyong Hospital; c. that pattern of work at Gosford Hospital is required until the Wyong SSD refurbishment is complete, which is expected to be five or six months in total; and d. accordingly, the Wyong SSD employees are being required to undertake a stable and uniform pattern of work at Gosford Hospital for the period of their relocation. 18. It follows that Gosford Hospital is the relocated Wyong SSD employees' 'accustomed place of work' within the meaning of cl 13 for the period of their relocation; the ordinary position in sub-cl 13(i) applies; and sub-cl I 3(ii) does not. Relocated Wyong SSD employees are not entitled to overtime 19. If sub-cl 13(ii) does not apply to the relocated Wyong SSD employees, as the Secretary contends, no issue arises as to the construction of sub-cl 13(ii)(b). If the Commission forms the contrary view, an issue arises as to whether sub-cl 13(ii)(b) has the effect of requiring excess travel time to be paid at overtime rates. It does not. 20. Sub-clause 13(ii)(b) must be read in the context of sub-cl (ii)(a). Sub-clause (ii)(a) sets out the basic position that where an employee is directed to report for duty to a place of work other than their accustomed place of work, their travel time in excess of the time normally taken to travel to and from their accustomed place of work is on the employer's account. One way in which the excess travel time may be put on the employer's account is by the employee's rostered ordinary hours for a particular day or shift incorporating an allocated period of travel time at the start and end. In this situation, the employee's travel time plus actual working time equals the employee's 'prescribed ordinary hours of duty for the particular category of staff for that day or shift' - that is, the employee's ordinary hours of work falling within the span and average number of hours prescribed by cl 3 of the Award for a given type of employee... 21. Sub-clause (ii)(b), on the other hand, deals with a situation in which an employee's excess travel time falls outside those ordinary hours. It does that by providing that if 'the excess of travelling time' is greater than the prescribed ordinary hours for the relevant day or shift, 'the excess of hours' is to be paid at the employee's ordinary rate of pay. The definite article 'the' in the phrase 'the excess of hours' indicates that it refers to the passage immediately preceding it: 'the excess of travelling time' that is greater than the employee's prescribed ordinary hours. And the definite article 'the' in the phrase 'the excess of travelling time' indicates that it refers to the 'excess of time normally taken to travel to and from the accustomed place of work' in sub-cl (ii)(a). 22. Interpolating those passages, what sub-cl (ii)(b) is saying is that if the employee takes longer to travel to their alternative work location than they would to their accustomed place of work, and that occurs outside their prescribed ordinary hours, they are to be paid for their excess travel time at ordinary rates. This is consistent with the overtime clause, which provides in part: (x) An employee recalled to work overtime as prescribed by subclause (iv), of this clause shall be paid all fares and expenses reasonably incurred in travelling to and from her/his place of work. Provided further that where an employee elects to use her/his own mode of transport, he/she shall be paid an allowance equivalent to the Transport Allowance as provided by Determination made under the Health Services Act 1997, as varied or replaced from time to time. … (xiv) When an employee works overtime as an extension of shift and ceases work at a time when reasonable means of transport home are not available, he/she shall be paid at ordinary time for the time reasonably spent travelling from the hospital or health institution to the employee's home with a maximum payment of one hour. This subclause shall not apply in the case of recall or where the employee has his/her own vehicle available for conveyance home. 23. The effect of these sub-clauses is to limit what is paid for travel to an employee who works overtime to their reasonable travel expenses and, in limited situations, a maximum of their ordinary time rate for travel time. Both sub-clauses also imply that travel time is not treated as 'time worked' for the purposes of the overtime provisions. It would be incongruous ·with these limitations to construe sub-cl 13(ii)(b) as entitling an employee travelling to and from an alternative work location to overtime rates for their travel time. 24. The HSU's construction of sub-cl 13(b)(ii)… distorts its plain language. It reads the sub-clause as limited to 'long travel' when no such limitation appears in its text or can sensibly be implied in the phrase 'prescribed ordinary hours'… In any event, it does not explain how an employee becomes entitled to overtime under cl 9 for travel outside ordinary hours, given the limitations identified in paragraph 23 above.

Principles of award interpretation

1. In State Rail Authority Firefighters' Award 2001 [2002] NSWIRComm 159 a Full Bench of the Commission (Wright J, President, Walton J, Vice-President, O'Neill C) considered the "beneficial" approach to award interpretation and stated as follows: 20 The principles applying to the interpretation of awards were authoritatively stated in this jurisdiction in Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001) 106 IR 217 where the Commission emphasised the need to approach the construction of an instrument by reference to the actual words used and their plain, ordinary English meaning. The relevant sections of the agreements referred to, state in terms that the position of Senior Fire Equipment Officer is covered by the instrument in question. It can also be seen that the Senior Fire Equipment Officer classification has been consistently referred to over time and this would appear to be indicative of a consistent intention to subject the employees of the FPU to coverage by the federal instruments. 21 This does not, however, completely dispose of the appellant's argument. Essentially the appellant contends for an interpretation of the relevant industrial instruments which would have the effect of an exclusive, rather than inclusive, approach. On the appellant's approach, an employer would have enormous scope to exclude an employee from award coverage merely by altering that employee's duties or classification. 22 We consider that the approach is wrong in principle. An award or agreement is an instrument created to include and benefit employees and should be interpreted in accordance with that purpose. This was recognised by Macken J in San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291 where his Honour stated (at 294 - 295): [I]ndustrial tribunals have always tended to lean toward construction of awards and employment circumstances which would preserve the operation of instruments of regulation such as awards rather than against their operation. In so stating, his Honour was doing no more than applying, in the specific industrial context, the well known and often applied approach to interpretation epitomised in the Latinism ut res magis valeat quam pereat. 23 Some judges and writers appear to treat this approach as part of the general purposive or beneficial approach to interpretation whilst others treat it as a separate rule stated as "interpretation to ensure validity and attainment of object of legislation [or instrument]" see for example Pearce and Geddes, Statutory Interpretation in Australia, 5th Ed 2001, pp 48 - 49; Gifford, Statutory Interpretation 1990 p 69; Odgers, Construction of Deeds and Statutes 5th Ed 1967, pp 32 - 33; Edgar, Craies on Statute Law, 7th Ed 1971, pp 95, 103ff; Nokes v Doncaster Amalgamated Collieries Limited [1940] AC 1014 at 1022 (Viscount Simon LC); R v Portus; Ex parte City of Perth (1973) 129 CLR 312 at 317 - 318 (McTiernan J); Martin v Scribal Pty Ltd (1954) 92 CLR 17 at 97 (Taylor J), Wright v Gibbons (1948) 78 CLR 313 at 324 - 325 and Elconnex Pty Limited v Gerard Industries Pty Limited (1991) 105 ALR 247 at 268 (Burchett J). Notwithstanding some subsequent judicial issue taken with Macken J's approach, we consider his Honour's approach as entirely unexceptional and, particularly so, when its pedigree and conceptual basis are properly understood. 24 Indeed the Full Bench in Nestle Australia Limited and Patatou (unreported, Fisher P, Cullen J and Connor CC, 16 July 1993), acknowledged the basis for the approach of Macken J when it was found at first instance that the respondent to the appeal was covered by the Clerks (State) Award. The decision at first instance was influenced by the approach of Macken J in San Remo set out above. The Full Bench characterised Macken J's statement in this way: The rationale in San Remo (Southland Pty Ltd) v Farrell was the adoption of a beneficial construction of awards and employment circumstances in order to preserve the operation of awards rather than against their operation. 25 We also mention the decision of CSR Limited Officers' Association v CSR Limited (1997) 76 IR 310 where a Full Bench of the Australian Industrial Relations Commission dealt with an appeal against a refusal to certify two agreements under Div 4 Part VIB of the Workplace Relations Act 1996 (Cth). At first instance, the Commissioner refused to certify the agreements because he was not satisfied that the appellant was an organisation able to represent the industrial interests of the employees as required in s 170LJ(1) of the Workplace Relations Act. The relevant question on appeal was whether the appellant was entitled to represent the industrial interests of at least one of its members whose employment would be subject to the agreements (at 312). Although the Full Bench disagreed with the Commissioner's findings as to the capacity of the appellant, there was acceptance of the Commissioner's approach to the issue of "whether an employer can contract out of an award merely by changing the name of a position without materially changing the function?". The Full Bench held that "an employer cannot escape award coverage by merely changing the name of a position". Likewise in this matter, an award which is expressed to cover a certain classification of employees does not cease to apply merely because there is an alteration in duties. 26 For completeness, we refer to the observations of Maidment J in Comdox (No 272) Pty Limited (T/as Ronald Stead Golf) v Dawson (1993) 49 IR 458 where his Honour disagreed with the statement of Macken J in San Remo. Relevantly, Maidment J stated at 461: The observation by Macken J that: "… industrial tribunals have always tended to lean toward construction of awards and employment circumstances which would preserve the operation of instruments of regulation such as awards rather than against their operation." is unsupported by cited authority. I know of no tendency, in recovery proceedings, to widen the scope of awards beyond that intended by the award maker in circumstances where no alternative coverage has been pointed to. Any such tendency would seem to me to be inconsistent with the approach of the full bench of the Industrial Commission of New South Wales in re Race Course Totalisators Employees' Association of New South Wales in determining whether the work of totalisator employees was covered by an award. 27 Although we may not need to resolve explicitly the apparent tension between San Remo and Comdox, we consider that an award should not be interpreted as ceasing to have effect merely because of an alteration in the duties of a particular classification. In this sense, the statement made by Macken J is one which accords with the principle of ut res magis valeat quam pereat - it is preferable to interpret so as to give effect or operation to an instrument rather than interpret in a way that is destructive of that effect or operation. We also note that Pearce and Geddes refer to the principles as to beneficial or remedial construction in this way (at [9.2]): A remedial or beneficial provision is one that gives some benefit to a person and thereby remedies some injustice. The most commonly cited examples are social welfare and pensions legislation, workers' compensation Acts, safety legislation and so on. However, any legislation that is taken to make a change in existing law or adopt new provisions that are advantageous to an individual or to the public is likely to be regarded as falling within the description of remedial or beneficial…. The orthodox view of the approach to be adopted in relation to the interpretation of this type of legislation is provided by Isaacs J (dissenting) in Bull v Attorney-General (NSW) (1913) 17 CLR 370. The case concerned the interpretation of a section of the Crown Lands Act of 1895 validating certain transactions. It was held by the majority of the court not to validate all transactions under Crown lands legislation but only those that independently of the operation of the legislation were defective. Isaacs J took the view that the section was intended to validate all transactions concerning Crown lands. At 384, he said: In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially…This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. It should not be thought from the reference to ambiguity in this extract that Isaacs J was suggesting that the beneficial interpretation approach only applied where there was an ambiguity in the legislation. It is apparent from his endorsement of the view of Lord Shaw in Butler (or Black) v Fife Coal Co [1912] AC 149 that the reference to ambiguity is intended as an example of the general approach to remedial provisions - ambiguous provisions are to be interpreted in a manner favourable to those who are to benefit from the legislation: see R v Kearney; Ex parte Jurlama (1894) 52 ALR 24 at 28; Zangzinchai v Milanta (1994) 125 ALR 265 at 272. ... The approach to interpretation of beneficial provisions enunciated here is subject to the rider that the interpretation adopted 'must be restrained within the confines of the actual language employed and what is fairly open on the words used': Khoury (M&S v Government Insurance Office of NSW (1984) 54 ALR 639 at 650; Accident Insurance Mutual Ltd v Sullivan (1986) 7 NSWLR 65 at 68; Secretary, Department of Social Security v Knight (1996) 44 ALD 283 at 289. 28 Thus, where a law is beneficial in nature an approach to interpretation which confines or narrows the beneficial or remedial operation is to be avoided. This approach was applied by Kirby P in Cole v Director-General of Department of Youth and Community Services (1987) 7 NSWLR 543 in interpreting provisions of the Government and Related Employees Appeal Tribunal Act 1980 conferring appeal rights upon public servants. Section 20 of that Act granted appeal rights to an employee who had failed to gain an appointment because the employer appointed or recommended another employees to fill the vacancy. Section 21 qualified the rights of s 20 by providing, inter alia, that the appeal may only be brought where the maximum salary applicable to the position is greater than the salary paid to the appellant. 29 The respondent urged a construction of those provisions that would have the effect of barring the appellant from appealing to the Tribunal. Kirby P considered this approach was incorrect as it failed to approach the matter in terms of the principle of beneficial interpretation. His Honour stated (at 543): Thirdly, and most importantly, the provision for appeals is a beneficial one, conferring on employees of the Public Service entitlements to the review of decisions which were not enjoyed by Crown servants by the prerogative or at common law and which are not generally enjoyed, at least to the same extent, by employees in the private sector: see Suttling v Director-General of Education (1985) 3 NSWLR 427. The entitlement to appeal conferred by s 20 is a beneficial entitlement of employment. It should not be excluded or confined by the exceptions provided in s 21, except to the extent that those exceptions are clear. Any doubt about the scope of s 21(1)(e) should be resolved in favour of the enhancement of the right of appeal and against its diminution by the operation of the exclusion. In the present case it is not essential to rely upon this rule of construction. The language, context and legislative history of s 21(1)(e) make the meaning sufficiently clear. But the recognition of the beneficial operation of the statute provides another reason for giving the paragraph the construction urged by the appellant and for rejecting the respondent's appeal to the suggested general purpose and intended operation of the Act. 30 We consider that these observations have some analogy to the present matter. The language, context and history of the federal instruments make it very clear that the classification of Senior Fire Equipment Officer is covered by those instruments. The recognition of the operative and inclusive nature of an award and its intention to benefit a defined group of employees supports a beneficial approach to construction which discourages the kind of narrow interpretation urged by the appellant. As noted earlier, the construction urged by the appellant would enable an employer to effectively exclude employees from the benefits derived from an award's coverage. In any event, the appellant has not demonstrated such a distinction between the existing and proposed classifications as to warrant any different approach although, as we have said, that is not the real issue in this matter.
2. The principles of award interpretation were helpfully summarised by the former Chief Commissioner Kite SC in Fire Brigade Employees' Union of NSW v Fire And Rescue NSW [2020] NSWIRComm 1022 as follows: Interpretation of awards 7. The principles for the interpretation of awards are reasonably well settled: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] - [16]. The last decision referred to by Commissioner Seymour in that review of the authorities was Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23. In that decision, after an extensive review of the authorities Walton J, President, provided the following summary at [115]: "Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ)." (Emphasis added) 8. The "refinements referred to by Street and French JJ" were those in their Honours' decisions in George A. Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [3] respectively. In Bond Street J said: 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. (Emphasis added) In City of Wanneroo French J said to like effect at [53] and [57]: 53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken" - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J). ... 57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. (Emphasis added) 9. The last decision warranting specific recognition in this matter is the decision of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182. In an oft quoted passage his Honour said: "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. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. (Emphasis added)

Interim award

1. As I stated to the parties on 29 January 2021, I decline to make an award, interim or otherwise, in this matter. Nothing that has been put before the Commission by the HSU would justify the making of an award in the terms set out in the HSU Motion which, by way of example, would require CCLHD to provide the affected employees with vehicles to drive to Gosford Hospital. As a practical matter, given that the refurbishment of the Wyong Hospital SSD started in December 2020 and is due to be completed in May 2021, such an award provision could have little, if any, practical effect.

"accustomed place of work shall mean the site or campus where an employee is regularly required to commence duty by the employer"

1. On 29 January 2021, after I had stated that I was not prepared to make the award sought in the HSU Motion, counsel for the Health Secretary, Mr Fuller, sought an adjournment of the proceedings to allow him time to prepare his case on the proper interpretation of Clause 13 of the Award which I granted. In doing so, I framed the issue in dispute, as I understood it, in the following terms: COMMISSIONER: I'm not going to do it in a way that's unfair to you and your client because it's a significant matter. It's been the subject of disputation over a period of time. If you need more time to prepare a response to the issue that's been promoted, and to me, and I'll hear the parties on this if I've got this around the wrong way, the issue seems to me to be does the relocation of these employees to Gosford hospital for the period of the refurbishment of the sterilising department at Wyong, but on the basis that they will return once that's completed and that's expected to happen in May of this year, does that relocation of their place of work constitute a direction to report for duty at a place of work other than the employee's accustomed place of work, which are the words in (ii)(a) or is it not? Is it something else? (iii) which seems to be the alternative to a temporary, and I know that term is not used but that seems to be what's contemplated in (ii), (iii) on the contrary talks about a report to a new accustomed place of work on a permanent basis. It seems to me that it is a stretch to say that what's occurring in this case constitutes a direction to report to a new accustomed place of work on a permanent basis, regardless of what "permanent" means. I would've thought five months or a period thereabouts could not be described as permanent, and in your own material in the consultation documents and all the like there are repeated references to, "You'll be coming back." So if you're coming back, you're not staying there permanently, on one view. And if that is so, then is the only other alternative provision that can apply to the facts of this case (ii)? If not, why not? That's the issue that I intend to determine but I will determine it in a way that's fair to both parties and I'm not going to prevent you from putting whatever it is that you want to put about that and if you need some time to put that together, then I'll grant it. But that's the issue I want to determine.
2. The terms of Clause 13 of the Award give no clue as to the meaning of the phrase "where an employee is regularly required to commence work". However, it is necessary to give some meaning to these words in order to resolve the dispute presently before the Commission because it is these words which define "accustomed place of work".
3. It is not in dispute that, prior to the relocation of the affected employees to Gosford Hospital, their "accustomed place of work" was Wyong Hospital. However, according to the Health Secretary, following the direction to them to commence duty at Gosford Hospital for what was expected to be a period of approximately five months, that location became their "accustomed place of work" for the duration of the time they would spend working there.
4. During the proceedings on 8 March 2021, I had the following exchange with counsel for the Health Secretary: FULLER: Commissioner, if I can just deal with a few points, noting the time. My learned friend has focused on the issue of what happens if subcl 2 does apply. As you've identified, Commissioner, the Ministry's case is that subcl 2 doesn't apply at all. We don't get to that point. So if I can just deal with that preliminary point first. The question facing the Commission is very simple. When an employee is required to attend the same place of work every working day every week for about five and a half months, is that their regular place of work? That's the question that's asked by the definition of "accustomed place of work" in cl 13. COMMISSIONER: I think I raised this issue with you earlier. You say five months, which is what we're talking about, it's regular. If it was one week would you maintain the same position? FULLER: Obviously it's hard to answer hypothetically. I think perhaps not. So I do - can I just answer that-- COMMISSIONER: So where does it morph from being your accustomed place of work to not or vice versa? FULLER: I accept that's an issue that this clause raises and in my submission it's just a common sense assessment of whether the place of work can properly be described as the regular place of work. That's a question of whether there's a uniform pattern of work there, whether there's a stable rostering arrangement, for example, requiring them to work at that location. So I do accept that there needs to be a line-drawing exercise and in some cases it might be a difficult one. I say that this isn't one of those difficult cases because these employees are required to attend every single shift at Gosford hospital for a period of about five and a half months. So whatever difficult line-drawing exercises might arise, this isn't a case where that arises.
5. The resolution of this dispute does not require the identification of a precise period of time that an employee is directed to work at a particular location that would satisfy the requirement that the "employee is regularly required to commence duty" at that location so that it becomes the employee's "accustomed place of work". It is only necessary to determine whether or not, on the facts of this case, Gosford Hospital became the affected employees' "accustomed place of work" for the period of approximately five months during which they were directed to commence duty there by CCLHD.
6. I have determined that Gosford Hospital did not become, and is not, the "accustomed place of work" for the affected employees. I have done so for the reasons which follow.
7. The principles of award interpretation referred to at [13]-[14] above require the Commission to adopt a non-technical and beneficial or generous (to the employees) approach to the interpretation of Clause 13 of the Award.
8. At the time when the affected employees were directed to report for duty to Gosford Hospital, their "accustomed place of work" was clearly Wyong Hospital, not Gosford Hospital.
9. Those of the affected employees who live closer to Wyong Hospital than Gosford Hospital will, for the period of the relocation, suffer the disadvantage of excess travel time to get to work.
10. It is common ground that the relocation of the affected employees to Gosford Hospital is not permanent and that subclause 13(iii) has no application in this case. Given that subclause 13(iii) applies to a permanent relocation of an employee's "accustomed place of work", this strongly suggests that subclause 13(ii) is intended to apply to a temporary relocation of an employee's place of work, which is what has occurred in this case.
11. The letter which was provided to the affected employees (at [4] above) stated that "SSD operations will be temporarily relocated to Gosford Hospital". The use of this language is inconsistent with the proposition that, for the duration of the relocation, Gosford Hospital would become the affected employees' "accustomed place of work".
12. The dictionary definitions of the word "regularly" relied upon at paragraph 8 of the Health Secretary's written submissions (at [12] above) could just as readily apply to a relocation of an employee's place of work for a period as short as one month, or even one week, which counsel for the Health Secretary thought would "perhaps not" constitute a change to the employee's "accustomed place of work" (at [19] above).
13. I regard the relocation of the affected employees' place of work to Gosford Hospital for a period of approximately five months as not constituting a change to the affected employees' "accustomed place of work" which remains Wyong Hospital.

"the employee shall travel to and from the alternative place of work in the employer's time"

1. It was the position of the HSU that any excess travel time incurred by the affected employees should occur during the period of their rostered shift. However, the evidence before the Commission discloses that the affected employees have been required to commence and finish duty at Gosford Hospital at the normal start and finish time of the shifts they were working at Wyong Hospital, in which case, according to the HSU, they should be paid for the excess travel time at overtime rates. I disagree.
2. I read the phrase "in the employer's time" to apply to any period of time when the employee is being paid by the employer. Subclause 13(ii)(b) makes it clear that, when the excess travel time occurs outside the period of the employee's rostered shift, the excess travel time is to be paid at the employee's ordinary rate of pay.
3. I interpret Clause 13 of the Award to require, by way of example, that an affected employee who lives five minutes travel time from Wyong Hospital but 35 minutes from Gosford Hospital and who is required to commence duty at Gosford Hospital at 8:00am and cease duty at 4:30pm thereby incurring one hour excess travel time, be paid for that one hour at the affected employee's ordinary rate of pay.
4. I should add that nothing in the decision of Conciliation Commissioner McArdle of 25 March 1988 or in the Department of Health circular issued on 4 May 1988, both of which are referred to at paragraph 14 of the Health Secretary's written submissions (at [12] above) dissuades me from interpreting Clause 13 of the Award in the manner that I have. The agreement between the Department of Health and the then Health and Research Employees' Association (now the HSU) which "provides full flexibility in the movement of staff within hospitals, institutions and area health services" provides no assistance in determining whether the relocation of the affected employees from Wyong Hospital to Gosford Hospital for a period of approximately five months constitutes an alteration of the affected employees' "accustomed place of work".

Direction and Recommendation

1. I direct the parties to confer for the purpose of reaching agreement on the amounts of money payable to the affected employees in accordance with the interpretation of Clause 13 of the Award. I recommend to the Health Secretary to pay the affected employees for excess travel time in accordance with this interpretation.
2. If agreement cannot be reached, or if my recommendation is not complied with, I will entertain applications from the HSU to make orders for the payment of money pursuant to sections 379 and 380 of the Act.
3. This matter is stood over generally with liberty to the parties to apply to have it relisted on three days' notice if that becomes necessary. If that liberty is not exercised by close of business on 31 May 2021, the file will be closed administratively. John Murphy 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: 03 May 2021