This matter came before the Commission pursuant to a notification of dispute by the Health Services Union NSW. As the notifier expressed it, it is a dispute about which classification of employee can properly claim and be paid for an allowance provided for in clause 32 of the Health Employees' Conditions of Employment (State) Award. ('the Award')
The dispute was not able to be settled by conciliation and the matter came before the Commission for arbitration on 21 June 2017. On that date the Commission as presently constituted made certain recommendations to the parties pursuant to the Commission's powers under s.136(1) of the Industrial Relations Act 1996. ('the Act')
Those recommendations included the following.
I formally reserve my decision and I will give a decision on the matter if I am obliged to. I have heard everything and have all the evidence I need to make that decision but before that occurs I wish to make a recommendation and I hope the parties will act upon it. I will go so far as to say, to make my position quite clear, that I make this recommendation that I am about to make because I think it has a capacity to lead to a fairer outcome, and I am speaking exactly about my concern that this is a case about payments to, in many cases, lower paid workers than if the matter is formally decided as an interpretation point which is the case that has been run before me.
The Ministry, Mr Shariff, has the right of course to insist on an arbitrated decision; after all it is not the Ministry that has brought this case but the union and having been required to argue the case the Ministry are within their rights to simply wait on a formally decided outcome but I ask that the Ministry not do that but have regard at least to my recommendation, which, as will shortly emerge, will involve the parties conferring and trying to fashion an agreed position.
Having heard the parties…I can now express a preliminary view on the matters agitated in the case. It is a preliminary view based on evidence and argument, it is not an arbitrated decision which is enforceable at all but the parties can, I think, fairly take it as a guide to the way I presently consider, having heard the parties and the matter being fresh in my mind, that the matter stands.
First, in my view the argument of the clause is in its whole obsolete because there is no such thing as "barrier nursing" anymore does not convince me. I rely on a number of cases including the High Court decision in Aberdare Colliery to adopt the view that the award, like an Act, is always speaking to come to the view that in this case 'additional precautions' are properly understood as being the successor within the meaning of the award clause to 'barrier nursing.' If that is so, then the award clause continues to stand and it does provide that certain employees are to be paid the allowance contained in the schedule in certain circumstances and I think there are such employees and there are such circumstances. The question is of course, which employees in which circumstances?
Remembering, I say again, that I can properly have regard to the intentions of those framing the award and I have, by both sides, been helpfully taken to its history. Several things about the award clause are in my view sufficiently clear. First of all, the allowance was introduced into the award in the first place to compensate cleaners. From all the material it is perfectly apparent that that was so. Later, after a period of a year or so during which it applied only to cleaners, it was extended to be paid to those who were required to lift or transport patients who should now be regarded as what is called "infectious patients". It is sufficiently clear that the allowance was always intended to be paid and the award clause provides for it to be paid to those who were employed as cleaners and those who were employed to, as a part of their duties, lift and transport patients.
It is quite clear on the evidence that an application was made in terms to the Commission in 1981 ultimately that the allowance apply to all persons who carry out work in a room occupied by an infectious patient, that is, all persons working under the award. That was in the end sought by the then HREA. It was rejected. It cannot be now said that is what the award meant or does mean. It is perfectly clear from the decision handed down by the then Commissioner Cansdell as chairman of the committee, that the broader scope of the application was rejected. It was limited to the provisions of the circular that were then fashioned to be adopted into an award clause.
More than that, it is my view, that the history as well as the actual wording of the clause itself, makes it sufficiently clear the award clause was never intended to be and did not but certainly was never intended to be by the framers of the award who after all were the HREA, the predecessors of the HSU, and the predecessors of the Ministry, that the allowance to be paid to persons such as nuclear medicine technologists, inter alia.
It was, I think relevantly, said to have to be explained in words of simple language to persons who are going to elect to go and do the work. It was on its face, so far as it goes to cleaning, payable to those persons who might elect to do cleaning work, that means, that it is not intended and was not intended and it does not apply to employees who would do that as part of their required duties and as to the transporting and lifting of patients it was intended to - it is clear from the submissions put to the Commission which are the submissions on which the Commission then ruled in making the award clause, it was intended to apply towards them and porters, that was expressly put to the Commission in respect of a lifting allowance by HREA in May 1982.
Now I do not know exactly who receives the allowance now but I have become aware from the evidence in these proceedings that there are persons who are receiving it now, to whom, in my view, that the allowance is on any proper construction of the award not payable. I say this, that certainly the award clause does not contemplate and does not mean that the allowance should be paid to any kind of clinical professional at all; it is not to be paid to anybody who would do the cleaning or the lifting as part of their clinical functions.
I do not agree, with great respect to the argument coherently and cogently put by Mr Edghill, that the proper way to read the clause is to say that one looks only at the duties. I do not regard the clause as being able to be read that way both on its own wording and its history, in my view, it is also limited by classifications.
I have referred twice to the fact that I am well aware that some of the employees receiving the allowance are lower paid workers, I do not wish to see those kinds of workers having their wages pared back by the outcome of this case and that is partly why I have taken the step of making the recommendation under s 136(1)(a) that I am now making and in the light of what I have just said the recommendation in its terms is this:
As I have said I formally reserve my decision and I will give it if I need to do so but before I hand down that judgment, I recommend that the parties confer in an attempt to devise a consent variation to the award. The present clause has now given rise to disputation and it refers to circumstances that no longer apply, "election" and "barrier nursing", the clause warrants updating.
The parties acted on that recommendation by conferring. On a number of occasions the parties by consent contacted the Commission advising that they were still conferring and asking that the reserved decision be held over to allow those discussions to continue.
Ultimately, the parties advised the Commission that their efforts had been exhausted without result and that the decision should follow. This decision, then, is a decision made pursuant to the Commission's powers under s.136 of the Act. That involves an interpretation of the relevant clause of the Award. The Commission has, of course, powers to provide an interpretation of a clause in an industrial instrument pursuant to s.175 of the Act if that is a step necessary to take for the purpose of exercising its powers under s.136.
Since making the recommendation a part of which is set out above, and before coming to set down this decision, I have reviewed all the materials, including the statements, the transcripts of oral evidence and the submissions advanced by the parties.
The matters at issue are sufficiently clear from the recommendation I set out above. In short, to whom is the allowance provided for in Clause 32 of the Award properly payable? To answer that question requires the application of the principles of award interpretation. I do not wish wearisomely to set these principles out yet again in full here, but they may relevantly for the purposes of this decision be summarised as follows, drawing on the comprehensive statement of the principles of statutory construction in Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412, which also apply to the construction of industrial instruments: Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158
The basic and overriding principle is that construction of any provision must involve a purposive approach, which must involve the consideration of the meaning of a provision in the context of the instrument as a whole: Certain Lloyd's Underwriters loc cit at [23], [88].
Despite the requirement for a purposive approach, in interpreting an industrial instrument a tribunal must determine what was meant by the words used, not what the framers of the instrument intended to say. What is involved is the search for an objective intention of the framers of the instrument, not their subjective intention: Fire Brigade Employees loc cit at [42].
An industrial agreement is to be understood in the light of its industrial context and purpose and must have regard to the industrial purpose of the agreement, and the commercial and legislative context in which it applies: Amcor Limited v CFMEU (2005) 222 CLR 241 at [2], [13], [30].
In that context, regard is to be had to all of the surrounding circumstances which were known to the parties at the time the document was created: Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FAFC 67 at [17]-[18].
I emphasise once again, as I did in the course of the recommendation I made to the parties at the conclusion of the hearing, what was said in Kucks v CSR Limited (1996) 66 IR 182 at 184: "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." I bear that very much in mind in this case.
With all that in view I turn to the clause in question. It provides as follows:
Infectious Cleaning
An allowance as set in Item 47 of Table 1-Other Rates and Allowances, of Part B, Monetary Rates, per shift or part thereof, is to be paid to employees who elect to and, in fact, perform cleaning duties in infectious areas where barrier nursing is being carried out. The allowance will also be payable to employees, who, in any shift, assist in the lifting and/or transporting of infectious patients.
Employees are to be given the option of working in the infectious area. In the event of employees declining to work in the infectious area, hospitals are to seek guidance from the employer.
Hospitals are to give written instructions on hygiene techniques and infection to employees who may be liable to work in infectious areas. Such instructions should be given to existing employees as soon as possible and to new employees at the point of engagement. In addition, supporting oral instructions should be given to relevant employees whenever a patient is admitted to hospital with a suspected or confirmed infectious condition and to those employees who work regularly in designated infectious areas.
The instructions given to employees should be in such a manner as to remove any fears that the employees may have, and to give them an understanding of the methods of the spread of disease.
The instructions should include the following subject matters:
(a) Mode of transmission -
Droplet Infection
Faecal-oral route
Blood
Fomites
Discharges - Secretions
Urine
(b) Disease not transmissible from person to person
(c) Degree of communicability
(d) Period of communicability
(e) Personal hygiene
(f) Protective clothing
(g) Barrier nursing
(h) Immunity
naturally acquired;
immunisation;
(i) Cleaning methods which minimise spread of infection.
As it is essential that the instructions be beneficial to the employees, simple language should be used which can be easily understood by them.
[2]
Consideration
Firstly, I expressed the view in the recommendation I made that the words 'barrier nursing' which was a term of art at the time the award was made, are now properly read to apply to circumstances where 'additional precautions,' the present term of art to describe essentially the same clinical process. The Ministry's submission - put, I think, faintly - that the clause is obsolete and does not apply to any circumstance, falls away. The allowance is certainly still payable. The question is, to what classification of employees in what circumstances?
The answer to that in my view is to be found from a reading of the plain words of the clause in the context of all of the surrounding circumstances which were known to the parties at the time the document was created, as it was held in SDAEA v Woolworths cited above.
The award clause, not uncommonly for award clauses of this kind, had its genesis in an industrial dispute. The history of the clause was helpfully and comprehensively set out in evidence given by Mr Gregory Driver, who has been engaged in various positions in the industrial relations elements of the Ministry of Health, in its various forms, since 1972. I note that Mr Driver was directly involved in the dispute at that time, including by appearing before the Commission in dispute proceedings, and was then involved in the insertion of the clause with which this decision is concerned into the award.
Mr Driver's evidence can be summarised relevantly as follows. In August 1979 a dispute arose concerning the cleaning of areas where there were what were described as infectious patients. Bans were placed by members of the then-industrial association, the Health and Research Employees' Association ('HREA') on carrying out cleaning in those areas. The State Secretary of HREA advised the Ministry that "it is not part of the duties of the current classifications in our awards to perform cleaning and disinfection in such areas".
The classifications contained within the awards to which HREA was then a party, as the Commission was informed in proceedings before it in September 1979, were "domestic staff, male porter cleaners, wardsmen and surgical dressers." As counsel for the Ministry emphasised in the present proceedings, it was not a ban on cleaning medical equipment or the provision of clinical services.
As an outcome of the dispute proceedings the Ministry wrote to HREA proposing that an allowance be paid to employees, members of HREA, "who may be required to, and in fact do, carry out cleaning work in infectious areas where barrier nursing is being carried out." That is, I observe, the allowance which is under consideration in this dispute.
HREA responded in writing accepting that proposal, subject to the proviso that there be an election to work in those areas. That is, a distinction was expressly drawn between employees who elected to perform cleaning work in those areas and other employees who worked in those areas, including any cleaning that they might carry out, as a matter of course.
A circular was then issued by the Ministry on 12 May 1980 which contained essentially the terms of the award provision as it exists today, providing for the payment of an allowance. The award provision itself was inserted in 1982. In the proceedings before Conciliation Commissioner Cansdell in May 1982 which led to the making of the award, the advocate appearing for HREA pressed that the allowance, already payable by virtue of the existing circular, be extended so as to include all employees who perform any work in areas where there are infectious patients. That extension of the allowance was opposed by the Ministry.
In the Conciliation Committee's decision handed down on 9 September 1982, the Committee held that "the provisions relating to "cleaning" in infectious areas will also apply to employees required to lift and transport infectious patients." The broader extension of the allowance sought by HREA, to all employees performing work in such areas, was not granted.
That history all points in one direction; that the allowance was created expressly to be paid to cleaners who elected to work in areas where infectious patients were to be found, and was then expressly extended by decision of the Commission beyond persons who elected to perform cleaning in those areas to those employees within HREA's coverage required to lift and transport infectious patients, that is, porters and wardsmen.
That history is entirely consistent with the ordinary and natural meaning of the words in the clause. The clause was intended to, and does, create an entitlement to an allowance for persons in the classification of cleaner, wardsman and porter, or their equivalent in title in today's award, in circumstances where they elect to clean infectious areas, or relevantly are required to lift and transport infectious patients. The award clause on any reading of its plain words creates no entitlement to the payment of the allowance to security officers, as argued by the notifier, nor to persons employed under the Medical Radiation Scientists (State) Award. Demonstrably it does not extend to clinicians of any sort. That is clear from a range of matters, not least the provisions of the award clause that the staff performing the cleaning were to have clinical concepts explained to them in simple language they could understand. A provision of that nature could not possibly apply to persons who are by the nature of their training and skill aware of those matters.
Equally, it is clear on the plain words of the clause, as well as the history, that the clause was never intended to, and does not, provide for payment of an allowance for persons who may be obliged, as a non-elective part of their duties, to clean a piece of equipment, such as, for example, a radiographer. The salary levels paid to clinicians who are required to come into contact with infectious patients or work in areas where they are to be found, or clean equipment used in their treatment, already comprehend the fact that they have no election in the performance of these duties.
In this context it is proper to have regard to the fact that the Commission's practice in making awards has consistently been to provide for an allowance, which is by its nature an incidental payment, for performance of tasks outside the employee's usual run of duties, not those which fall within those usual duties:. Re Painters (State) Award 1964 AR 204 at 206. An employee who ordinarily as a part of their duty comes into contact with such a patient, has to move or lift them, or has to clean a piece of equipment in an area where such patients are treated is simply not entitled to an incidental allowance for doing so. Again, it is a part of the job for which they are already paid.
[3]
Conclusion
Clause 32, correctly read, provides for an allowance, which is to be found in Table 1 of part B of the Award, to be paid to cleaners who elect to perform cleaning work in areas where special precautions in relation to patients are taken. The allowance has, since 1982, also, by effect of a decision of the Commission, been payable to porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients. The allowance is not payable to any other classification of employee. So far as it has been or is being paid to any other classification of employee than those I set out above, it is being paid in error. The payment should cease. As the award provides absolutely no entitlement to payment of the allowance to other employees, it would not be appropriate to maintain payments of the allowance to them, whether by way of 'grandfathering' or otherwise.
I observe that as far back as 2016, in conciliation proceedings before Stanton C, the union was warned that to press this dispute to arbitration, seemingly on behalf of some radiographers, might well have negative consequences for its members; indeed the union was expressly invited by Stanton C in June 2016 to rethink its position. As my recommendation set out above makes clear, I expressed the same view. Once they are pressed to arbitration, award interpretation cases must be decided according to law, as Madgwick J made very clear in Kucks' case, set out above.
I recommend, however, pursuant to the Commission's powers under s.136 of the Act, that while the payments to classes of employees other than those identified above must cease, there be no attempt by the Ministry to recover monies paid in error to employees up to the end of the pay period in which the date of this decision falls.
[4]
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Decision last updated: 21 February 2018
Parties
Applicant/Plaintiff:
Health Services Union NSW
Respondent/Defendant:
Ministry of Health; re infectious cleaning allowances