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

DECISION

1. Before the Full Bench is an Application for Leave to Appeal and Appeal by the Health Services Union NSW ("HSU") against the decision of Commissioner Sloan of 15 August 2019 in Health Services Union New South Wales v Health Secretary on behalf of Northern NSW Local Health District [2019] NSWIRComm 1055 ("the Decision"). In the Decision, Commissioner Sloan determined a question concerning the interpretation of clauses 8B and 8C of the Public Hospital (Professional and Associated Staff) Conditions of Employment (State) Award 2018 ("the Award").
2. The determination was made by the Commissioner following compulsory conference proceedings which occurred as a consequence of an industrial dispute at Lismore Base Hospital, which is part of the Northern NSW Local Health District ("NNSWLHD"), concerning the method of calculating payments made to Sexual Assault Workers ("SAWs") for work performed out of hours.
3. Clauses 8B and 8C of the Award 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 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.
4. The proceedings at first instance arose out of a notification of an industrial dispute by the HSU pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("the Act"). The dispute notification contained the following: 4. The question, dispute or difficulty concerns the following industrial matters: 1. The Health Services Union NSW ("HSU") is in dispute with the Ministry of Health in respect of the Northern New South Wales Local Health District ("the Respondent"). Background Overtime for 'call out allowance' 2. Sexual Assault Workers commonly work "on call" and receive a "call out allowance" in accordance with clause 8b and 8c of the Public Hospitals (Professional and Associated Staf/) Conditions of Employment (State) Award ("the Award"). 3. Historically, these employees have been paid overtime in accordance with clause 8c of the Award from the time that they received a call for the call out which requires them to attend a hospital in the LHD. 4. Upon receipt if this call from the employer, these employees are required to make contact with other departments and relevant people, including inter alia: a. The victim; b. Doctors; c. Nurses; d. Emergency Department; e. Police; f. Family and Community Services Helpline; g. The Joint Investigation Response Team; h. Community Mental Health Triage Team; i. Corrective Services; and j. Family and friends of the victim. 5. As a result of this, the employees spend a considerable amount of time conducting work in relation to the call out prior to and on the way to the hospital to ensure that the patients receive appropriate and efficient treatment. 6. On 8 March 2017, Ms Tamahra Manson, Violence, Abuse & Neglect Manager for the Richmond Clarence Health Service Group sent an email to sexual assault employees advising them that overtime payments prescribed under section 8c of the Award did not begin until they had arrived at the hospital. 7. On 24 May 2017, the employees raised the matter with Mr Peter Kelly, Organiser for the HSU. 8. On 6 June 2017, Mr Kelly and Mr Bill Oddie, Sub-branch president met with Mr Richard Buss, the then Acting Workforce Manager and raised the employees concerns regarding the payment of overtime. 9. The issue was again raised with management at a Union Specific Consultative Committee held on 25 July 2017. 10. The Respondent did not provide a response following any of the aforementioned meetings. 11. As a direct result of this, on 22 August 2017, the HSU Lismore Base Hospital Sub­ Branch ("the Sub- Branch") met and passed a motion that called for "the LHD to reinstate overtime for Sexual Assault staff at Indigo House from the moment they get a call out whilst on call." 12. On 24 August 2017, this motion was sent to Mr Wayne Jones, Chief Executive of the Respondent. 13. On 31 August 2017, Mr Kelly received a letter from Ms Narelle Gleenson, Acting General Manager of the Respondent advising him that they would not be reinstating the payment of overtime from the time of the 'recall', as it is not in accordance with Award provision. 14. The Union ("the Applicant"), asserts that the payment should be made to Sexual Assault Workers from the time of the call out as per custom and practice. 15. Furthermore, it asserts that this is consistent with Polan v Goulburn Valley Health (No 2) [2017J FCA 30. In this decision Justice Mortimer stated: '... the answer lay in the notion of the verb 'recall' itself, which suggests a conscious decision by or on behalf of the employer to require an employee to perform specific duties of employment outside the employee's ordinary hours of duty. ' 16. This decision concluded that when the Applicant in this case received a call from her employer while 'on call' in relation to specific staffing issues that required attention, and she went on to make and receive phone calls in order to make necessary arrangements, these duties did constitute a recall to duty. Handover 17. In addition to the above, following a call out, sexual assault workers are required to provide staff on day shift a case handover at the completion of their shift and at the commencement of the day shift after the call out. 18. The required case handover falls within the employees' eight consecutive hours off duty as prescribe in clause 8c(ii)(b) of the Award. 19. Accordingly, the employee effectively resumes work at this time and the employee should be paid double rate until such time that the employee is released from duty. 20. Furthermore, at the completion of this, the employee is entitled to have their eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. Resolution 21. The Applicant seeks that: a. the Respondent reinstates payment of overtime for Sexual Assault Workers from the time that the employee receives the call out and begins undertaking work in relation to call out; and b. the Respondent remunerate Sexual Assault Workers in accordance with clause 8c of the Award for the period of work completed in respect of the case handover.
5. In the proceedings at first instance, Commissioner Sloan was required to interpret the term "a telephone counselling service" which appears in subclause 8B(iii) of the Award. Evidence in support of the resolution sought by the HSU was given by two SAWs, Natasha Kolas and Linda De Milford. Evidence in support of the respondent's interpretation of the relevant clause in the Award was given by Cassandra Botha, formerly a Senior Workplace Relations Advisor for the Workplace Relations branch of the Ministry of Health, and Tamara Manson, Violence Abuse and Neglect Manager for NNSWLHD.
6. The competing positions of the parties were set out in the Decision as follows: 17 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) 18 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." 19 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[?]."
7. Commissioner Sloan then discussed the powers of the Commission to interpret an industrial instrument pursuant to s 175 of the Act and the principles that govern the exercise of those powers. The Commissioner then stated as follows: 25 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." (2) 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. (3) 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. (4) 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. (5)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. 26 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"? 27 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. 28 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. … 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." … 29 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." 30 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. 31 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. 32 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. 33 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. 34 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. 35 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) 36 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.
8. There then followed discussion by Commissioner Sloan of 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. Ultimately, the Commissioner stated that, given the findings he had 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)" (at [42]).
9. Commissioner Sloan then continued as follows: 43 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. 44 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. 45 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. 46 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. 47 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". 48 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. 49 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. 50 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. 51 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. 52 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). 53 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. 54 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. 55 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. 56 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. 57 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. 58 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. 59 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. … 60 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. 61 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. 62 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. 63 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. 64 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. 65 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. …" 66 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. 67 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. 68 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 69 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.
10. Commissioner Sloan then set out submissions that were put by the HSU to the effect that the respondent's arguments on the construction of the Award, if accepted, would have a discriminatory effect. The Commissioner then continued as follows: 72 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. 73 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. 74 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. 75 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 76 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. 77 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.
11. Commissioner Sloan then made certain orders for the future disposition of the matter. These orders have not been put into effect due to the filing by the HSU of this appeal.

The Appeal

1. The Application for Leave to Appeal and Appeal was filed by the HSU on 5 September 2019 and contained the following: F. The questions raised by the appeal are: 1. Whether the Commissioner erred in finding that clauses 8B and 8C of the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2018 (Award) operate so that the duties performed by Sexual Assault Workers (SAWs) between receiving 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? 2. Whether the Commissioner erred in finding that clauses 8B and 8C of the Award operate so that, for SAWs or Social Workers who are rostered on call, the provisions of clause 8C(ii) apply only to the time spent travelling between their home and the Hospital? 3. Whether the Commissioner erred in finding that clause 8C of the Award operates so that the call out period should be calculated from the time that the SAW or Social Worker leaves their home to return to the Hospital until the employee returns home? G. Reasons why leave to appeal should be granted: 1. The matter involves issues of such importance that, in the public interest, leave to appeal should be granted. 2. The decision of the Commissioner raises serious questions regarding the correct conditions of employment for the approximately 120 full-time equivalent SAWs covered by the Award, in that it has the following effects: (a) SAWs are to be paid at one-third their ordinary rate at times when performing substantive duties when 'on call' outside ordinary hours; and (b) SAWs are paid substantially less than other employees covered by the Award at times when performing duties (including away from their usual place of work) outside ordinary hours, noting that the Award provides that employees covered by the Award other than SAWs and Social Workers are to be paid overtime rates (i.e. time and a half) when performing such duties, with a minimum payment period applied to each occasion. 3. While the decision of the Commissioner is confined to the consideration of the Award to SAWs, the decision has the potential to raise serious questions regarding the correct conditions of employment for the hundreds of Social Workers who are also covered by clauses 8B and 8C of the Award; 4. In light of paragraphs 2 and 3 above, the decision has widespread application. 5. Further, the practical effect of the decision is that a substantial number of female workers covered by the Award will be paid less than the ordinary rate of pay when performing duties outside of ordinary hours. In this regard, it is noted that it is a requirement in all but one local health district that SAWs be women. This gives rise to a substantial injustice, which it is in the public interest to properly address. 6. The matter raises the question of whether employees can be recalled to duty without being required to return to their place of work, which is a question that has not yet been considered by the Full Bench and has wider implications for the Commission's jurisprudence. H. Grounds of the appeal are: 1. The Commissioner erred in finding that clauses 8B and 8C of the Award operate so that the duties performed by SAWs between receiving 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. 2. The Commissioner erred in finding that clauses 8B and 8C of the Award operate so that, for SAWs or Social Workers who are rostered on call, the provisions of clause 8C(ii) apply only to the time spent travelling between the their home and the Hospital. 3. The Commissioner erred in finding that clause 8C of the Award operates so that the call out period should be calculated from the time that the SAW or Social Worker leaves their home to return to the Hospital until the employee returns home. 4. The Commissioner erred in giving consideration to the provisions of other Awards of the Commission in construing clause 8B and 8C of the Award. 5. The Commissioner erred in concluding that the on-call rate provided by cl 8B had been set to compensate for substantial duties being performed by the SAWs at times that this rate was paid, including the duties performed by SAWs between receiving notification that results in a recall to duty and presenting at the Hospital. 6. The Commissioner erred in considering the Respondent's evidence in relation to proceedings conducted in 1979 by the Public Hospital Professional Staff (State) Conciliation Committee, which regarded a proposed variation to the Public Hospital Social Workers (State) Award. 7. Such other or further grounds as this Honourable Commission considers appropriate.
2. Before the Full Bench in these proceedings both parties were heard on the question of leave to appeal and the appeal itself.

HSU

1. The HSU, on the question of leave, relied upon written submissions which repeated and expanded upon the grounds and reasons why leave to appeal should be granted which are set out at [12] above.
2. As to the appeal itself, the HSU submitted that the phrase "return to duty", as it appears in subclause 8C(ii), is not necessarily confined to the situation where the employee is required to return to the workplace. A "call out" or "return to duty" will occur on any occasion when a SAW, who is rostered on call, is required to perform any duties apart from providing direct counselling over the telephone. The HSU accepts that the provision of direct counselling over the telephone is compensated for by the on call allowance prescribed in clause 8B of the Award.
3. According to the HSU's submission, the duties which SAWs perform whilst on call which are not compensated for by the on call allowance, but which attract the call out allowance prescribed in clause 8C of the Award, are "intake duties" which include the logistical, coordination and facilitation duties required to organise an urgent medical examination of the client in circumstances of a recent sexual assault. This includes contacting doctors and other medical professionals, liaising with police and making appropriate reports. It was put that these "intake duties" are distinct from the provision of counselling which "involves the direct communication with the client, for example, listening to the client's experience, providing strategies to deal with flashbacks, hyper-arousal and intrusive thoughts, reviewing self-care strategies, safety planning and developing a plan of follow-up supports".

Respondent

1. The respondent opposed the grant of leave to appeal arguing that the appeal raises no issues of importance sufficient to enliven the public interest. As to the appeal itself, the respondent essentially adopted the conclusions reached and determination made by Commissioner Sloan for the reasons set out in the Decision. The respondent did not challenge the Commissioner's determination on appeal that when recalled to duty at the hospital, the SAWs are entitled to be remunerated pursuant to clause 8C of the Award from the time they commence travel from their home to the hospital, until they return home.
2. The respondent submitted that the on call allowance provided for in clause 8B of the Award compensated the SAWs for all "intake duties" performed whilst on call up to the time when the employee leaves home to return to the workplace, at which point the entitlement to the call out allowance provided for in clause 8C of the Award commences.

Leave to appeal

1. The principles governing the grant of leave to appeal in this jurisdiction are well known. These principles were most recently restated by a Full Bench of the Commission (Chief Commissioner Kite SC, Commissioner Sloan and Commissioner Webster) in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 in the following terms: Legal principles to apply "27 An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Act. 28 The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him [sic]: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]." 29 In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12]-[13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal." 30 The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles."
2. We will also apply these principles.
3. In her written submissions on the question of leave to appeal, the respondent stated: 6. The appeal raises no issues of importance sufficient to enliven the public interest. 7. The appeal raises no point of legal principle, let alone a substantial issue of principle or law that has wider implications for the jurisprudence of the Commission of widespread practical application… 8. The "public interest" issues asserted by the Appellant are that the learned Commissioner erred in the interpretation of clauses 8B and 8C of the Public Hospitals (Professional and Associated Staff) Award 2018 (Award), that the consequences of the decision impact upon approximately 120 full-time equivalent sexual assault workers and also to social workers, that the practical effect of the Decision reduces the entitlements of these workers, and that the Commissioner erred by taking into account the value of the allowances in other comparable awards… However, the first of these contentions does not raise any question of principle, and only seeks to quibble with the conclusion arising from the orthodox application of well settled principles. The second of these contentions is both overstated and wrong: the decision impacts only a small cohort of employees who are required to work "on call" as these employees claim that they should be paid a "call out" allowance. The third contention is also overstated and wrong: the employees will be paid what they are entitled. The final contention is not correct as the learned Commissioner did not rely upon other comparable awards to give meaning to the text of the present Award. 9. The public interest is not enlivened and the application for leave should be refused.
4. We agree with these submissions. The issues raised in this appeal are confined to a relatively small group of employees. The Decision has no widespread implications. We are not of the opinion that the matters raised on appeal are of such importance that, in the public interest, leave should be granted.
5. It appears that the impact of the Decision on affected employees, at least at NNSWLHD where the original dispute arose, will not be great. During the appeal proceedings before the Full Bench the following exchange occurred with counsel for the HSU: MURPHY C: What was the situation where intake duties were performed either before or after a telephone counselling session. But the employee did not - was not required to go back to the hospital. GIBIAN: So far as the intake work is concerned, I think the evidence suggests that it will virtually always involve attendance at the hospital. And the question is the performance of duties involving this coordination and other agencies and medical professionals and the like, which is undertaken before actual physically leaving to attend the hospital.
6. Subclause 8C(iii) of the Award provides for a minimum payment for employees recalled to duty outside normal hours of three hours at the appropriate overtime rate. Commissioner Sloan determined that the commencement time of a call out is when the employee leaves home to return to the hospital and ceases once they return from the hospital to their home. The HSU contends that the commencement time of a call out is when the employee receives the first notification which leads to the recall to duty at the hospital. Bearing in mind that, so far as "intake duties" are concerned, these will, according to the HSU, virtually always involve attendance at the hospital, what appears to be in issue is the period of time between the SAW receiving the first notification which leads to the recall and leaving home to return to the hospital.
7. In the proceedings at first instance, Ms Manson gave evidence that each SAW at NNSWLHD is rostered on call on average for approximately one shift a week.
8. Ms Kolas gave evidence that from May to July 2018 she participated in a trial that had been agreed to as part of the initial dispute proceedings. She submitted two examples of her being recalled to duty. With respect to the first example which occurred on 16 July 2018, the disputed period of time, being the time between the initial call and leaving home, was 55 minutes. With respect to the second example which occurred on 21 July 2018, the disputed period of time was one hour, 20 minutes.
9. The other HSU witness, Ms De Milford, provided an example of being recalled to duty which occurred on 28 October 2018 when the disputed period of time was one hour, 40 minutes.
10. During the appeal proceedings before the Full Bench, counsel for the HSU was asked some questions about the frequency of SAWs actually providing telephone counselling to clients. The following exchange occurred: MURPHY C: But if I understood what you put earlier that the actual telephone counselling services seems to be a very rare event. GIBIAN: The purpose of being on call or the provision of counselling is available. And Ms De Milford described that type of work where there is a client who is in urgent need of counselling assistance in a manner, which cannot wait the normal working hours the person is available to provide that counselling over the telephone. MURPHY C: But of all of the examples you've taken us to that only occurred once. GIBIAN: Well, the examples that were derived - the examples to which I've taken the bench were the examples of the intake duties. That is, that was the purpose of the trial was to chart the - well, to provide an account of the intake duties that were performed. MURPHY C: So is there any evidence as to the frequency of counselling GIBIAN: There was cross examination of Ms De Milford and I think she said it was relatively rare, yes. MURPHY C: Relatively rare. GIBIAN: I don't - can't recall whether she said MURPHY C: Can you refine that a little? GIBIAN: Sorry? MURPHY C: Can you refine that a little, like, once a week, once a month, or? GIBIAN: I think there was only - this was only a matter that was raised with Ms De Milford and she gave evidence in cross examination in that respect. I actually, I think it was a question the commissioner asked. She said it had only happened to her two or three times. MURPHY C: Over what period? GIBIAN: Six years, I think she says. MURPHY C: Six years. GIBIAN: Yes, sorry, six and a half years…
11. On any view of the evidence that was before Commissioner Sloan, the occasions on which SAWs who are rostered on call are called on to perform any work out of hours are relatively infrequent. This also militates against the grant of leave to appeal.
12. Further, we are of the opinion that the HSU has been unable to mount an arguable case pointing to appellable error. (Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050).
13. We agree with Commissioner Sloan's interpretation of the term "a telephone counselling service" for the reasons set out in the Decision. In our opinion, providing a telephone counselling service involves more than counselling a client over the telephone and includes the associated "intake duties".
14. Towards the end of the hearing of the appeal, counsel for the HSU put the following: The highest that I think my learned friend can really put it, on the evidence, is that the initial assessment of the client, which is undertaken for the purposes of facilitating the forensic medical examination, may inform a subsequent counselling process, in the sense that information is obtained in relation to the client and their experience and their circumstance, which may inform counselling. That does not mean that it is the provision of the counselling, or the provision of the counselling service. And is it obvious that that is distinct work? It is referred to, the intake process is referred to distinctly in the respondent's own policies, separate from the implementation of the counselling process to provide that therapeutic intervention. And my learned friend - the evidence in that respect, of Ms Manson, which was relied upon by the Commissioner, included a recognition that the role, or the intake and counselling work was distinct. She wished to say that - and this appears, it's really 500 and 501 of the appeal book, within the transcript, that it was not separate. It was not separate because in her words, they went hand in hand together. That is, they were separate functions that were both provided by the sexual assault worker - service, I should say. So, there was an exception that they - acceptance that, on the evidence relied upon by the Commissioner that they were distinct work. The provision of counselling and the intake service are distinct. At best, the initial assessment may inform a subsequent counselling process. And all of the evidence about the instances in which there was telephone counselling done, when on-call, and the whole trial, was an assessment of the intake work. Sorry, in contradistinction to the counselling work. Everyone accepted there was a distinction between the two processes. And there is no difficulty in ascertaining when the intake work commences. It starts, and the trial demonstrated this, upon the notification of the sexual assault worker, of a new client intake, which necessitated the various functions that were then described, of reporting an assessment and facilitating a medical examination.
15. We have no difficulty in accepting that the performance by SAWs of "intake duties" is part of their role which is distinct from counselling. However, to the extent that the performance of "intake duties" may inform the counselling process, we regard both of these aspects of the work of SAWs as part of the provision of a telephone counselling service.
16. The HSU has not identified any error in the Decision.
17. Leave to appeal is refused. Chief Commissioner Nichola Constant Commissioner John Murphy Commissioner Janine Webster

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