Health Services Union NSW v Hunter New England Local Health District

Industrial Relations Commission (NSW)|2017-02-13|Before: Mr P

This dispute and subsequent small claim applications assert that the two ward clerks, Ms Denise Hayward and Ms Christine Steele (the applicants) employed by Hunter New England Local Health District (the LHD) at Cessnock District Hospital, were not paid "higher grade duties" when undertaking relief work associated with the role of "Admission's Clerk", "Telephonist/Receptionist" and "Emergency Department Clerk", positions graded at Administration Officer Level 3 under the Health Employees Administrative Staff (State) Award (the Health Employees Award). The applicants were classified at the Administration Officer Level 2 grade.
Ms Hayward has claimed that she had worked higher grade duties for an average of two hours per day since approximately 2008 and sought a back payment of $5772 "covering six year(s) retrospectivity". Similarly, Ms Steele claimed an average of one hour per day and a back payment of $2886.
The claim was initially referred to in a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 (the Act) filed by the Health Services Union NSW (the Union). This was followed by the filing of Particulars of a Small Claim pursuant to s 365 of the Act.
Compulsory conference proceedings before Commissioner Murphy failed to resolve the dispute and the matter was referred to the Commission as presently constituted for determination.
Section 365 provides: 365 Order for recovery of remuneration and other amounts payable under industrial instrument An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable.
Given the small claims were filed on applicants behalf by the Union, a registered industrial organisation, they can be heard simultaneously with the present dispute proceedings. Section 379 refers to a maximum amount of $10,000 or such other amount as is prescribed by the regulations. However,it should be noted that cl 47 of the Industrial Relations (General) Regulation 2015 provides that for the purposes of s 379(3)(b) of the Act, the amount of $20,000 is prescribed. The claims fall within that limit.

The Applicants

The applicants each filed a statement setting out the history related to their claim. Those statements were identical with the exception of the actual hours claimed and the monetary quantification of those hours allegedly worked.
Ms Hayward commenced work at Cessnock District Hospital in October 2001. Ms Christine Steele first commenced work at Kurri District Hospital in November 2002 and transferred to Cessnock in 2004. Ms Hayward is the medical ward clerk and Ms Steele works in the surgical ward.
Shortly stated, the applicants contended:

The Union has made a number of unsuccessful representations on a formal basis from at least 2008 seeking to remedy the matter. A number of officials had carriage of the matter over that time prior to Mr Coquillan and Ms Paull making the most recent representations on their behalf.
When initially employed at Cessnock Hospital the applicants were not expected to undertake duties associated with admissions work. However, they have always been required to relieve the switchboard operator and/or the Emergency Department clerks for their meal or other breaks and "absences incurred by them on account of sick or other types of leave".
In or around 2008, management decided that the Hospital's admission's officer was too busy to undertake duties associated with night admissions and without notice, those additional duties were assigned to the ward clerks for completion. Those duties have continued to be undertaken on a daily basis.
Payment for higher grade duties has been sought since being directed to undertake the additional work.
The daily switchboard and Emergency Department relief requires their attendance approximately one hour per day. Both positions are graded at Administration Officer Level 3.
The full range of admission officer duties is undertaken except that there is no liaison with medical insurance funds as the funds are not contactable outside of normal business hours. Admissions work undertaken by ward clerks would normally be completed by 8.30am each day.

The applicants have refused to sign a revised position description which reflects the additional duty requirements on the grounds the LHD had rejected their claim for higher grade duty payments.
In further evidence in chief, Ms Hayward stated she spent between one and one and a half hours each day relieving staff for their morning tea and lunch breaks:

30 minutes relieving the main switchboard receptionist at morning tea time.
30 minutes relieving the Emergency Department receptionist for morning tea and a further 30 minutes relieving her for the lunch break.

In relation to admissions work, the following exchange ensued: Q. What would you suggest would be the average length of time on each one? A. It could take up to half hour, more if you have to go back to get more information from the patient, sometimes they're asleep, they're not well ‑ if they've come in overnight you have to wake them up ‑ yeah, it could be longer. Anything up to an hour for the one patient with getting all the correct information and all the interruptions you get with them as well. It's not a straightforward process, it's ‑ yeah. Q. For the admissions work do you do the full range of duties there? A. Yes. You have to interview the patient, that's very important because you have to make sure ‑ especially the next of kin, their name and address and their phone number in case the nurses have to contact them for emergencies. Q. Is there anything in the admissions work that you don't do? A. No. No, not ‑ no, the admissions clerk does something with the medical fund, they check that but we don't do that, but we do all the rest, everything that it entails from woe to go.
In cross-examination, Ms Hayward agreed that the award required her to: … relieve the employee in a high-grade continuously for five working days or more and who satisfactorily performs the whole of the duties and assumes the whole of the responsibilities for the higher classification.
Ms Hayward agreed with the proposition that during her job share week commencing 1 May 2016, she only completed one admission that week on 3 May. The following exchange ensued: Q. Based on … that very one example of the first week you did one which was probably half an hour of work, would you agree, based on those discussions, that the admissions work wouldn't meet the definition of "continuous" if you did half an hour in a week? A. Well, I'd say that particular month you've picked out would be probably one of the lowest ones I've done, yes. Q. But you would agree that the work in that month wouldn't be deemed continuous, you're not doing it every day? A. I would say so but it's not always the case. COMMISSIONER Q. Ms Hayward, on the multi-coloured document LH2 which has the admissions completed by yourself and Ms Steel between May and September, there's really no week there where you undertake the tasks being claimed every day, is there? A. I don't ‑ which ‑ sorry? Q. Mr Reay put a question to you in respect of the first week, I think, in May that you didn't work, you didn't undertake the higher duties continuously for more than five days, and there's really no period within that timeframe where I think you've undertaken the higher duties for more than five days continuously over that five month period, is that the case or‑‑ A. No, it's not every day. Q. No. A. As I said, some days you may get more than others. Q. But some weeks you only do it once or twice? A. Well, according to this ‑ I'd have to check on mine probably.
With respect to the requisite key accountabilities of the position description for the position of Admissions Officer, Ms Hayward agreed that she did not communicate, liaise and support the NUM's with regard to the management and allocation of beds and bed transfers. Ms Hayward further agreed that she did not exercise the following key accountabilities of the position description:

Manage hospital waiting list accordance with the waiting list policy and the allocation of theatre dates within the in the NEST targets.
Prepare operating theatre lists in consultation with the Theatre NUM.
Responsibility for iPM's, audits, data correction and monthly reports.
Establishing strong working relationships with staff at all levels of the organisation particularly with other support staff and managers within HNE Health.
Provide courteous, effective and efficient service to patients, visitors, team members and other health care providers that reflects HNE Health core values and utilises excellence tools including AIDET.
Provide administrative services including responding to telephone and/or face-to-face general enquiries and maintaining filing systems.
Prepare reports and correspondence as required. The following exchange ensued: Q. … Based on that, you do the one aspect of that admissions officer position, one task from their position description, but you don't do the whole task of an admissions officer, is that correct? A. No, we do the same as the grade 3 girls on the switchboard do when they do their admissions. There was no re-examination.

In cross-examination, Ms Steel stated that she worked a job share arrangement comprising three days one week and two days the following week.
Ms Steel also understood that in order to be paid for higher grade duties, she was required to relieve the employee in the higher grade position continuously for five working days or more.
Ms Steel agreed with the proposition that she only completed nine admissions during the month of May 2016 over four days, 3, 10, 16, and 31 May. Similarly, she completed eight admissions in June over six days. However, despite the fact that she did not process patient admissions on a daily basis, Ms Steel contended that she had met the definition of "continuous" as set out in clause 8 of the Conditions Award.
Ms Steel conceded that an admissions officer undertook a range of duties other than simply admissions work. Ms Steel agreed that other than undertaking "admissions work", she did not exercise the full range of key accountabilities of the position description for the position of Admissions Officer.
There was no re-examination.

Local Health District

The LHD's evidence was set out in an affidavit filed by Ms Lynn Hurst, Senior Human Resources Consultant. Ms Hurst has been employed by the LHD and its predecessor organisations for 30 years. She was not required for cross examination.
Ms Hurst contended the prerequisite for payment of higher grade duties as sought by the Union under clause 8 of the Conditions Award was that the employee must: … relieve an employee in a higher classification continuously for five working days or more …and … satisfactorily perform the whole of the duties and assume the whole of the responsibilities of the higher classification as required by the employer ...
The applicants have not relieved continuously in these positions for five working days or more. Nor have they undertaken the whole of the responsibilities required of the higher grade position. Ms Hurst contended the applicants only exercised a minor aspect of the competencies required of the admissions officer position description.
Ms Hurst stated during the period 1 May to 30 September 2016, a total of 78 admissions were completed by the applicants. Within this period, consistent periods of greater than five working days were identified where they undertook no admission work. During the period under review, Ms Hayward averaged only 2.6 admissions per week and Ms Steel 1.0 admissions per week.
Ms Hurst stated that prior to July 2008, the then existing Conditions Award provided for payment of higher grade duties for part of a day. Clause 8 of that instrument, subsequently rescinded, stated: If for two hours or less during one day, such employee shall be paid the higher rate for the time so worked. This provision was rescinded following an agreement made between the NSW Department of Health and the Health Services Union and set out in a Memorandum of Understanding effective 1 July 2008 to 30 June 2011, where the part day higher grade duties provision, amongst a number of other provisions, was offset against three annual salary increases of 3.9% each. A copy of the Memorandum was attached to her statement.
Clause 10.3 of the Memorandum states that the salary increases were conditional upon the Union agreeing to a number of award variations including the following requirements concerning the payment of the higher grade duty allowance: Minimum number of days before qualifying for Higher Grade Duty allowance to be five days. Higher grade duty allowance may be paid when relieving an employee who is absent on an Additional Day Off.
Ms Hurst contended that when the applicants undertake telephonist and receptionist relief, that particular work sits outside the Telephonist-Level 3 definition set out under Part A of the Health Employees Award: Telephonist-Level 3 means a person who is required to perform clerical duties in respect of admissions and/or accounts (other than telephone) in addition to switchboard duties. Rather, "switchboard duties" undertaken by the applicants were aligned to the Telephonist-Level I definition: Telephonist-Level I means a person whose major function (ie 80 per cent or more is spent in operating a switchboard or similar equipment.

The Applicants

The Union contended that the applicants were entitled to the higher grade duty allowance as claimed. The work was forced upon them in or around 2008.
The Union disputed the figures relied upon by the LHD to substantiate the case against the applicants that the admissions and relief work as contended did not occur five days per week.
The Union further contended that under the Conditions Award, employees had the right to decline undertaking higher grade duties. In that regard, the Union intimated that in the event the Commission rejected the application, the applicant's on his instructions would cease undertaking the higher grade work.
Clause 35 of the Conditions Award requires the LHD to consult concerning any proposal that will significantly affect employees covered by the Union. The LHD has not initiated the required consultation with respect to this particular matter.
Notwithstanding the opposition of the LHD, the Union considered that the applicants were undertaking "some form of relief work for five days a week". The Conditions Award was silent with respect to the payment of a higher grade duties allowance for part of a day "and for that reason it should be permitted".

Local Health District

The LHD submitted that the applicant's did not meet the requirements set out in clause 8 of the Conditions Award that the "minimum number of days before qualifying for the higher grade duty allowance is five days".
The disputed duties have been undertaken by the applicants on a continuous basis since 2008. There was no basis to support the proposition that the applicants had authority to cease undertaking the additional work should the Commission refuse their application.
The LHD has a policy that continuously looks at the grading of positions and the range of tasks contained therein. The additional work that the applicants have undertaken since 2008 does not warrant their reclassification to Grade 3 "all the time".
Moreover, the admissions work undertaken by the applicants is not undertaken continuously nor is the full range of duties and accountabilities of the admissions officer position exercised.
The decision of Commissioner Tabbaa in Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with State Water Corporation and another re clause 11, subclause (8) [2006] NSWIRComm 1145 supports the proposition that a higher grade duty allowance is not paid in circumstances where the employee does not exercise the whole of the duties and tasks of that particular position.

Principles relevant to the interpretation of industrial instruments

An award of the Commission is an industrial instrument and must be interpreted in the light of the rules applicable to such instruments. The Commission's power to interpret the provisions of an industrial instrument is found at s 175 of the Act: 175 Powers of Interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).
The Commission's approach to the determination of the proper construction of a provision of an industrial instrument is both settled and longstanding. The starting point of interpretation is to examine the terms of the industrial instrument, which in this case is clause 8 of the Conditions Award, to establish what the words mean in their ordinary and natural significance or, their clear common sense English meaning.
A Full Bench of the Commission considered the principles surrounding the approach to statutory interpretation in Transport Workers' Union of New South Wales v Linfox Australia Pty Ltd (No 2) [2014] NSWIRComm 57 at 41: Principles relevant to our consideration in this matter include the following: (1) Generally speaking, awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504. (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: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [53]; Commission of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 at [39]. (3) 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": City of Wanneroo per French J, quoting from Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; (1993) 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth [1998] FCA 249; (1998) 82 FCR 175;(1998) 80 IR 345 (Marshall J). (4) In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury at [128]. (5) Provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". It is rarely appropriate to take an overly strict or literal approach and, in fact, there is a tradition of adopting a generous construction where industrial awards are concerned (George A Bond & Co at 503 to 504; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13 at [22]-[24]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [57] and Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70; (2007) 161 IR 96 at [44]).
Moreover, the comments of the Chief Justice in Rail Corporation New South Wales v Brown [2012] NSWCA 296 at [39] further confirms the proper approach to the construction of an industrial instrument: As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]; Roadshow Films Pty Limited v iiNet [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48].
More recently, in Polan v Goulburn Valley Health [2016] FCA 440 at [32], Mortimer J summarised the relevant principles of interpretation applicable to industrial instruments: Like other instruments creating normative rules, such as statutes and regulations, industrial instruments are to be construed in accordance with their language (or text), taking into account their context in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument: see generally Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573; Certain Lloyd's Underwriters v Cross [2012] HCA 56; 293 ALR 412 at [24]-[25]. In the latter case, French CJ and Hayne J said at [25]: Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.

Is there ambiguity in clause 8 of the Conditions Award?

Clause 8 of the Conditions Award relevantly provides: 8. Relieving Other Members of Staff (i) Subject to the provisions of subclause (ii) of this clause, an employee who is called upon to relieve an employee in a higher classification continuously for five working days or more, and who satisfactorily performs the whole of the duties and assumes the whole of the responsibilities of the higher classification as required by the employer, shall be entitled to receive, for the period of relief, the minimum pay of such higher classification. (emphasis added)
Shortly stated, the pre requisite to payment of the higher duties allowance is abundantly clear, unambiguous and has plain meaning. It is mandatory that the claimant employee must satisfy the following conditions: 1. relieve in the position continuously for five working days or more; and 2. satisfactorily perform the whole of the duties of the position; and 3. assume or exercise the whole of the responsibilities of the higher classification as required by the employer.
On the evidence before the Commission, the applicants do not relieve continuously for five working days or more. Nor do they, on their own admission, perform the whole of the duties of the higher grade positions or exercise the whole of the responsibilities of those higher positions as set out in the relevant position description.
The language used by the drafters of the Conditions Award is neither ambiguous nor susceptible to more than one meaning. It is not controversial and has plain meaning.
It must follow that the language which has actually been employed in constructing clause 8 is the surest guide to drafting parties' intention.
In such circumstances, it is both unnecessary and improper for the Commission to draw upon extrinsic materials to determine the proper interpretation of the provision.
The Union claims that the current provisions as set out in clause 8 of the Conditions Award are silent with respect to part day higher duty payments. Clearly, part day higher duty payments have been specifically excluded at the direction the parties themselves. Against that backdrop, the Union further contends that it is open to the Commission to accept the applicants' small claims.
In short, the Union seeks the Commission's intervention to rewrite the offending provisions and overturn the intent of the Memorandum of Understanding.
However, the evidence of Ms Hurst is compelling. It also makes it clear that in drafting the most recent Conditions Award, the parties have complied with the undertaking contained in the Memorandum of Understanding operative 1 July 2008 to 30 June 2011 to remove the previous part day higher grade duties provision in return for a series of wage increases to be implemented over a three year period.
For the reasons outlined above, the small claim applications and the dispute proceedings must fail.
It was not argued by the LHD that the applicants' claims potentially represented an "extra claim" or an attempt to "double dip". However, it has been a long established policy of this Commission that awards should not be opened within their nominal term unless there are good and cogent reasons to do so: Soap and Candle Makers Case (1946) AR 264.
The need to preserve the integrity of "no extra claims" provisions and undertakings given by parties in award negotiations was considered by Wright J, the then President of the Commission in the Corrections Health Service Nurses (State) Award Case (1999) 90 IR 235 at 245: … It should be emphasised that the Commission must ensure the integrity of not only its own wage fixation principles but also the strict observance of agreements and undertakings given by parties, compliance with which, properly considered, are important and indeed essential to the integrity of the principles. Undertakings such as no extra claims provisions are crucial parts of the integrity of the system of wage fixation which occurs in the New South Wales system of industrial regulation..." (emphasis added) This is indeed such a case. The requirement of parties to strictly observe the agreements made and those undertakings given in the context of award negotiations is irrefutable.

Disposal of the matter

The Order that I make in Matter No 2016/220438 is that the small claims applications and dispute proceedings before the Commission pursuant to ss 130 and 365 of the Act are dismissed. J D Stanton 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: 12 January 2018

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (26)