Health Services Union NSW v NSW Ministry of Health in respect of the... [2014] NSWIRComm 58 | Case summary

Industrial Relations Commission (NSW)|2014-12-16|Before: Walton J, Cahill J

(Cahill J, 24 March 1997, unrep) Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Short v F W Hercus (1993) 40 FCR 511 State Wage Case - August 1997 (1997) 73 IR 200 State Wage Case - December 1993 (1993) 52 IR 157 State Wage Case - December 1994 (1994) 57 IR 1 State Wage Case 2001 [2001] NSWIRComm 119; (2001) 104 IR 438 State Wage Case April 1996 (1996) 64 IR 439 State Wage Case August 1989 (1989) 30 IR 107 State Wage Case February 1988 (NSW) (1988) 23 IR 340 State Wage Case June 1999 (1999) 88 IR 363 University of Western Australia v National Tertiary Education Industry Union [2003] FCA 1264 Category: Principal judgment Parties: Health Services Union NSW (Applicant) Illawarra Shoalhaven Local Health District (First Respondent) NSW Ministry of Health (Second Respondent) Representation: J V Murphy (Applicant) A B Gotting (First and Second Respondents) File Number(s): IRC 384 of 2014

Judgment 1The position of Assistant Chief Medical Radiation Scientist (Diagnostic Radiographer) ('ACR') has existed within the organisational structure of the Diagnostic Radiography department at Wollongong Hospital for several decades. The current ACR, Mr Matthew Ryan, was appointed to the role in 2002. 2Under the Health Employees Medical Radiation Scientists (State) Award ('the Award'), the classification and consequential rate of pay of an ACR is based on the number of full time equivalent ('FTE') Medical Radiation Scientists (Diagnostic Radiographer) ('diagnostic radiographers') that are employed within the relevant Diagnostic Radiography department. Upon the Award, the ACR position at Wollongong Hospital is classified as Level 5 Grade 3 (as in excess of 24 FTE diagnostic radiographers are employed within the Diagnostic Radiography department at that hospital). 3In 2013, the Illawarra Shoalhaven Local Health District ('the ISLHD'), the first respondent, proposed to remove the position of ACR from the organisational structure of the Diagnostic Radiography department at Wollongong Hospital and to create a new position entitled 'Manager ISLHD Medical Imaging Service' ('the manager position'). In contrast to the existing ACR role, the employee occupying the manager position would not be required to be a diagnostic radiographer. 4The manager position was to be classified as a Health Manager Level 5 under the Health Managers (State) Award. Upon that classification, the position would attract lesser conditions of employment than those granted to the ACR under the Award. 5That proposal gave rise to industrial dispute proceedings between the ISLHD and the Health Services Union of New South Wales ('the HSU'), the applicant in the present proceedings, who opposed the changes. Those proceedings were the subject of conciliation, but a resolution was not reached. No arbitral proceedings were brought before the Industrial Relations Commission in relation to that matter under Pt 1 of Ch 3 of the Industrial Relations Act 1996 ('the IR Act'). 6It was in the light of that background that the HSU filed the present application for a declaration pursuant to s 154 of the IR Act on 16 May 2014. Whilst the HSU particularised Wollongong Hospital in the orders originally sought in the application, the declaration ultimately sought (by removing the elements of the relief claimed with specific reference to Wollongong Hospital) was expressed in the following broad terms: 1. The true meaning and intent of Part A, Clause 1 of the Health Employees Medical Radiation Scientists (State) Award is that within a Diagnostic Radiography Department within a hospital in which there are employed more than 24 FTE MRS (Diagnostic Radiographers), there is to be, in addition to the position of Chief MRS (Diagnostic Radiographer), a position of Assistant Chief MRS (Diagnostic Radiographer) 7In the course of these proceedings it became tolerably clear that the declaratory relief sought by the HSU was to the effect that the Award created a legal requirement upon the employers of diagnostic radiographers within the public health system to establish or maintain a position which corresponded to the Award classification ACR Level 5 Grade 3 and to appoint a person to the position so described in any hospital with a Diagnostic Radiography department in which in excess of 24 FTE diagnostic radiographers were employed ('a department of the requisite size'). 8It may be noted, at this juncture, that whilst the order sought was framed as a bare declaration across the New South Wales health sector, the evidence was largely directed to the operation of the Award at Wollongong Hospital. However, the submissions of the HSU did not draw particular attention to Mr Ryan as the current ACR at that Hospital. 9It was contended by the ISLHD that the declaration sought was defective in that it was not clear precisely what right was sought to be declared or who was said to be the subject or holder of that right. Although there may be some substance to those contentions, that issue does not require resolution in view of the conclusion ultimately reached in this judgment. 10It may also be noted that, although the terms of the order sought were limited to the ACR position in a department of the requisite size, the HSU expressed the view that the Award also prescribed a requirement for the maintenance of a position of Chief Medical Radiation Scientist (Diagnostic Radiographer) ('Chief Radiographer') within a hospital with a Diagnostic Radiography department of any size and an ACR within a hospital with a Diagnostic Radiography department which employed between 4 and 24 FTE diagnostic radiographers. However, this contention was not developed during the hearing of the matter (except in aid of the construction of the Award advanced with respect to the ACR) and does not arise from the relief sought by the HSU. 11It was not contended by the HSU that the Award contained an express requirement for a department of the requisite size to establish an ACR position and to appoint a diagnostic radiographer to the same. Rather, the application was predicated upon the basis that the classification structure in cl 1 of the Award which defined the position of ACR prescribed by necessary implication a requirement to establish and appoint a person to that position as a matter of law (Mr J V Murphy of counsel, who appeared for the HSU, referred to a requirement to "maintain and fill" the position). In short, the HSU contended that that implication was to be drawn from the classification structure in the definition clause, read in context and with regard to the history of the Award. 12Thus, the adjudication of the present proceedings necessitated an assessment of whether, upon proper construction, the classification structure in cl 1 of the Award prescribed a legal obligation to employ an ACR within a department of the requisite size. 13Due to the broad nature of the relief sought by the HSU, the order was also sought against the NSW Ministry of Health, the second respondent, as the relevant employer. The Ministry of Health adopted the submissions of the ISLHD in this matter.

Award Structure 14The Award is divided into two parts: 'Part A' and 'Part B - Monetary Rates'. 15Part A consisted of six clauses entitled 'Definitions' (cl 1), 'Salaries' (cl 2), 'Conditions of Service' (cl 3), 'Dispute Resolution' (cl 4), 'Anti-discrimination' (cl 5) and 'Area, Incidence and Duration' (cl 6) respectively. 16Clause 2 specified that the "minimum salaries" for employees falling within the scope of the Award (see cl 6) are those stipulated in Table 1 of Pt B. 17Part B sets out, in tabular form, the salaries of three classes: Radiographers, Nuclear Medicine and Radiation Therapists, each a sub-category of medical radiation scientist. (The Award does not define medical radiation scientist and that descriptor does not appear in Table 1. However, it is clear from the title of the Award and the definitions in cl 1 that the award concerned three classes of medical radiation scientist, of which diagnostic radiographer is immediately relevant.) The salaries for each classification are graded in accordance with a common salary scale over six levels. As earlier noted, an ACR employed in a department of the requisite size falls within the classification diagnostic radiographer Level 5 Grade 3. 18The principal purpose of the Award is to fix rates of pay. 19As noted above, by cl 2, the Award fixes rates of pay for three classes of medical radiation scientist via a common salary scale applying to each classification within the classes. 20Clauses 3 and 4 adopt, by reference, conditions and terms fixed by a general award in the health industry, the Health Employees Conditions of Employment (State) Award ('the Conditions Award') (and, to a lesser extent, the Health Industry Status of Employment (State) Award). (It may be observed that the Conditions Award would in any event apply to or substantially apply to the employees caught by the Award (see cl 48 of the Conditions Award).) Clause 4 meets the formal requirements of s 14 of the IR Act (see s 14(2)). Clause 5 is required to be inserted by virtue of a State Wage Case decision (see State Wage Case June 1999 (1999) 88 IR 363 and State Wage Case 2001 [2001] NSWIRComm 119; (2001) 104 IR 438) and cl 6 defines the scope of the Award. 21Clause 1 of the Award is entitled 'Definitions'. By this provision, the respective classes of medical radiation scientist for whom rates of pay are fixed in Pt B are defined. The definitions in cl 1 also delineate between the levels in the common salary scale for each such classification (the defined access to each level varies for each classification). As will be later discussed with respect to diagnostic radiographers, cl 1 also stipulates the circumstances by which an employee may, to employ industrial parlance, progress between the levels of the classification structure (in the case of Levels 1 and 2) and within a level (in the case of Levels 2, 3 and 4), including what is described as personal regrading. Movement between these levels or steps will be guaranteed save for some temporal considerations or rudimentary criteria. However, advancement between the higher levels in the classification structure lacked that degree of automaticity. As will be later discussed, classification at Level 5 Grade 2 onwards is dependent upon appointment to one of the positions nominated within those classifications in cl 1 of the Award. 22In that respect, the contention of the ISLHD that cl 1 had no operative function other than to provide the definition of classifications or classification levels may not be accepted as a global proposition. The clause prescribes progression between and within classifications in the limited manner described above. However, that conclusion does not detract from the broad contention of the ISLHD that the principal purpose of the Award is to fix salaries. (The aforementioned progression arrangements are ultimately complementary to the fixation of salaries under the Award.) Nor does it support the proposition, which is at least implicit in the HSU contentions, that the establishment of a classification level which prescribes a rate of pay for an employee holding the position of ACR requires, by implication, the establishment of and/or appointment of an employee to that position in a department of the requisite size. (I will later discuss why the Award classification structure does not permit the contention advanced by the HSU in these proceedings.)

Clause 1 - Diagnostic Radiographer 23Given that the contentions of the parties gave particular attention to the provisions of cl 1 of the Award as it related to diagnostic radiographers, it is appropriate to set out the relevant terms of cl 1 in full : "MEDICAL RADIATION SCIENTIST (MRS) (DIAGNOSTIC RADIOGRAPHERS)" "Diagnostic Radiographer" means a person who has acquired a Bachelor of Medical Radiation Science in Diagnostic Radiography and holds a Statement of Accreditation issued by the Australian Institute of Radiography. From 1 July 2012 Diagnostic Radiographers are required to hold registration with the MRPB. MRS (Diagnostic Radiographer) Qualifications: - Bachelor of Medical Radiation Science (Diagnostic Radiography). - Bachelor of Applied Science (Medical Radiation Science) - (Diagnostic Radiography). - Successful completion of a Diagnostic Radiography course recognised by the employer and the MRPB. - Accreditation by the AIR. From 1 July 2012, must hold registration with the MRPB. LEVEL 1 Progression from Level 1 to Level 2 is automatic upon completion of a PDY (full-time or part-time equivalent) in an approved department. The MRS at this level must have been granted provisional accreditation by the AIR. From 1 July 2012, the MRS at this level must have been granted provisional registration by the MRPB. The Level 2 progression shall be retrospective to the PDY completion anniversary date. The Medical Radiation Scientist (MRS) (Diagnostic Radiographers) at this level is employed in an approved department during their first year post-graduation from a recognised university undergraduate course. This year may be referred to as their Provisional Development Year or PDY. The MRS (Diagnostic Radiographer) at this level shall develop a capacity to apply knowledge, skills, professional judgement and show initiative in solving routine professional issues involving patient care, radiation safety, occupational health, safety and rehabilitation, manual handling and QA. They will be expected to work in an environment where there are multi-disciplinary teams. LEVEL 2 (Years 1 - 5) Progression through Level 2 is automatic, and occurs annually on the MRS' (Diagnostic Radiographer) anniversary. This level also maintains those who are still on the "thereafter" rate. To satisfy the criteria for progression to Level 2 the MRS (Diagnostic Radiographer) will have completed the requirements for their PDY. The MRS (Diagnostic Radiographer) at this level: Demonstrates independent and significant professional knowledge and judgement to acquire and exhibit competency in all appropriate clinical tasks. Begins to take an active part in multidisciplinary teams and gain experience in the more complex modalities of their department, including Quality Improvement/Assurance programmes, OHS&R issues and Radiation Safety. Is expected to provide a high level of patient care and management with an understanding of patient needs and psychology, and continue to develop their knowledge regarding work place safety issues (eg. manual handling, infection control, etc.). Demonstrates significant ongoing commitment to continuing professional education and actively participates in undergraduate student education and departmental in-service lectures. LEVEL 3 Grade 1 (Years 1 - 2: Specialist MRS) At completion of one-year full-time (or part-time equivalent) at Level 3, Grade 1, Year 1, the MRS (Diagnostic Radiographer) will automatically progress to Level 3, Grade 1, Year 2. A MRS (Diagnostic Radiographer) may apply for a personal regrading to this level after not less than two years experience post accreditation or registration (i.e. Level 2, Year 2). The MRS (Diagnostic Radiographer) must display a suitable level of professionalism, as determined by their peers (Level 4 or above), and develop competency in at least one sub-speciality from the list below. A panel of at least three Chief MRS (Diagnostic Radiographers) or their representative will assess the application. The relevant Health Service may also establish such positions at Level 3, Grade 1 or 2 as it deems appropriate from time-to-time. The profession of MRS (Diagnostic Radiography) is free to bring forward new technologies and procedures as they develop with a view to gaining agreement of their inclusion in the criteria listed below. MRS (Diagnostic Radiographers) seeking appointment to Level 3, Grade 1 shall be required to demonstrate a high level of knowledge and proficiency in complex clinical procedures including but not confined to: Education Applied Computer Science (including PACS) Paediatrics Clinical Supervisor QA Radiation Safety & Assessment CT Angiography Intra-operative interventional techniques MRI Ultrasound Mammography/Breast Imaging General/Trauma Radiography Dental Imaging Software development and application. In addition, MRS (Diagnostic Radiographers) at this level are expected to: Demonstrate a level of participation in teaching programs within and/or outside the establishment. This teaching may include undergraduate, postgraduate students, other health professionals, patients and their carers and the public in a field relevant to Diagnostic Radiography. Demonstrate an ability to supervise and be responsible for other MRS' (Diagnostic Radiographers). Demonstrate an ability to supervise and assess clinical experience of MRS (Diagnostic Radiography) undergraduate students. Provide liaison between the universities and the clinical setting. Be able to demonstrate active participation and involvement in development of techniques through associated reports, presentations, conferences, publications or work place inservice lectures. Contribute to Quality Assurance activities. Display judgement and demonstrate a high level of initiative and independence in problem solving. OR Possess a post graduate certificate in a relevant area of specialisation. LEVEL 3 Grade 2 (Years 1 - 2: Consultant MRS) At completion of one year full-time (or part-time equivalent) at Level 3, Grade 2, Year 1, the MRS (Diagnostic Radiographer) will automatically progress to Level 3, Grade 2, Year 2. The MRS (Diagnostic Radiographer) after not less than the completion of 12 months service at Level 3, Grade 1, Year 2 may apply to the Chief MRS (Diagnostic Radiographer) for personal progression to Level 3, Grade 2. The applicant will be assessed by a panel of at least three Chief MRS' (Diagnostic Radiographers) or their representatives. The MRS (Diagnostic Radiographer) at this level will have extensive clinical expertise related to specific areas/modalities and be able to demonstrate a high level of competency and a consistently high standard of practice, as outlined in Level 3, Grade 1 and as determined by their peers (Level 4 and above). They will be expected to demonstrate their expertise through the development and maintenance of protocols, clinical reviews, teaching and delivery of in-service and presentations of papers/publications related to their area of expertise at departmental level and at conferences at national or international level. They may be called on in an advisory capacity to assist other MRS' (Diagnostic Radiographers) with difficulties encountered within specific situations relating to their area of expertise. Applicants should have substantiated reports by Senior MRS' (Diagnostic Radiographers) Level 4 or above and/or Staff Specialists. The reports should focus on the expertise, judgement, and provision of advice by the applicant, together with the impact on services provided by the department arising from the work of the applicant. A minimum of two reports should be included and at least one must be from an MRS. (Diagnostic Radiographer). This wider acknowledgment of their expertise may be for example, in publications in peer-reviewed journals. The MRS (Diagnostic Radiographer) Level 3, Grade 2 may also be designated as the Clinical Imaging Educator/Tutor. This position would be responsible to the Chief MRS (Diagnostic Radiographer) for the identification, provision and delivery of continuing education for MRS' (Diagnostic Radiographers) with both clinical and general management components. In addition, responsible for the co-ordination and determined service delivery of the educator/tutor function for undergraduates on clinical placement and MRS (Diagnostic Radiographers) undergoing PDY. LEVEL 3 Grade 3 The MRS (Diagnostic Radiographer) at this level must have obtained an appropriate recognised postgraduate diploma allied to their area of expertise. This refers to post graduate diploma in areas such as (but not restricted to) ultrasound, CT, MRI, mammography, angiography, QA, management, education, research or IT. Such applicable diplomas must be relevant to the area of specialisation. LEVEL 4 Grade 1 (Years 1 - 2: Section Manager / Assistant Chief MRS/Sole Chief MRS) At completion of one year full-time (or part-time equivalent) at Level 4, Grade 1, Year 1, the MRS (Diagnostic Radiographer) will automatically progress to Level 4, Grade 1 Year 2. A MRS (Diagnostic Radiographer) at this level would manage the operations of a section or functional unit (specialist or general) within the Diagnostic Radiology department and discharge the associated administrative duties. These operations include day to day management, throughput and patient care, patient scheduling as well as immediate staffing. The MRS (Diagnostic Radiographer) would be responsible to the Assistant Chief MRS (Assistant Chief Diagnostic Radiographer) or the Chief MRS (Chief Diagnostic Radiographer) for the overall QA, organisation, activities and maintenance of standards within the particular specialised section. OR MRS' (Diagnostic Radiographers) at this level may be a sole Chief MRS (Diagnostic Radiographer) responsible to a Health Manager for both the clinical and financial management of the Imaging Department. OR An MRS (Diagnostic Radiographer) at this level may be an Assistant Chief MRS (Diagnostic Radiographer) within a department with 4-7 FTE MRS (Diagnostic Radiographers) in addition to other associated department staff eg. clerical, hospital assistants, etc. OR Possess a Masters Degree in an area of Medical Radiation Science specialisation which is relevant to medical imaging and which will benefit the profession. Eligibility requires a minimum of three years equivalent clinical practice after successful completion of a PDY. LEVEL 4 Grade 2 An MRS (Diagnostic Radiographer) at this level would manage an area of the Diagnostic Radiology department with at least two specialist modalities such as 2 CT units or 2 Angiographic units OR two imaging sections within a tertiary referral teaching hospital e.g. Operating Suite and General Radiography. In a department of only one specialist modality it may be appropriate to have only one position at this level but the focus of the position would be the decision of the relevant Health Service. The areas referred to in this section would include a number of imaging sections or units, such as all CT units or all angiographic units. The manager of the area would have the responsibility for the overall organisation of the designated area and be responsible for tasks such as coordinated implementation of existing and new techniques, creation of protocols for scheduling and training, overall waiting list management and ensuring all resources are used in the most effective manner. OR The MRS (Diagnostic Radiographer) at this level may be a Chief MRS (Diagnostic Radiographer) who manages a department with 2-3 FTE MRS' (Diagnostic Radiographers) in addition to other associated department staff eg. clerical, hospital assistants. OR The MRS (Diagnostic Radiographer) at this level may be an Assistant Chief MRS (Diagnostic Radiographer) within a department with 8-14 FTE MRS' (Diagnostic Radiographers) in addition to other associated department staff eg. clerical, hospital assistants, etc. OR At this level the MRS (Diagnostic Radiographer) will have the duties and responsibilities of an MRS Section Manager (Level 4 Grade 1) but possess a post graduate diploma or masters degree in an area of relevance to their position. The post graduate diploma /masters degree will have been completed after a minimum four years clinical experience. Such a position is to receive accelerated progression to Level 4, Grade 2, Year 2. LEVEL 5 Grade 1 The MRS (Diagnostic Radiographer) at this level is a Chief MRS (Diagnostic Radiographer) who manages a department with 4-7 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff eg. clerical, hospital assistants, etc. OR The MRS (Diagnostic Radiographer) at this level is an Assistant Chief MRS (Diagnostic Radiographer) within a department with 15 - 19 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants, etc. OR At this level the MRS (Diagnostic Radiographer) is responsible for coordinating and managing a complex function for example, but not limited to: IT, PACS/RIS, CT, US etc. across a Local Health District(s). OR Has completed a PhD in a relevant area of specialisation. LEVEL 5 Grade 2 The MRS (Diagnostic Radiographer) at this level is a Chief MRS (Diagnostic Radiographer) who manages a department with 8-14 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants, etc. OR The MRS (Diagnostic Radiographer) at this level is an Assistant Chief MRS (Diagnostic Radiographer) within a department with 20-24 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants, etc. LEVEL 5 Grade 3 The MRS (Diagnostic Radiographer) at this level is a Chief MRS (Diagnostic Radiographer) who manages a department with 15-19 FTE MRS (Diagnostic radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants, etc. OR The MRS (Diagnostic Radiographer) at this level is an Assistant Chief MRS (Diagnostic Radiographer) within a department with more than 24 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants etc. LEVEL 6 Grade 1 The MRS (Diagnostic Radiographer) at this level is a Chief MRS (Diagnostic Radiographer) who manages a department with 20-24 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants etc. LEVEL 6 Grade 2 The MRS (Diagnostic Radiographer) at this level is a Chief MRS (Diagnostic Radiographer) who manages a department with 25-30 FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants, etc. LEVEL 6 Grade 3 The MRS (Diagnostic Radiographer) at this level is a Chief MRS (Diagnostic Radiographer) who manages a department with 31 or more FTE MRS (Diagnostic Radiographers) in addition to other associated departmental staff e.g. clerical, hospital assistants, etc NB: FTEs refer to establishment radiographer positions only.

Clause 2 - Salaries 24The present matter also calls attention to cl 2, which provides as follows: Employees shall be paid not less than the following minimum salaries as set out in Table 1- Salaries and Allowances, of Part B, Monetary Rates.

Part B 25As noted above, the table in Pt B, Table 1 - Salaries and Allowances ('Table 1'), prescribes the minimum weekly pay rate for diagnostic radiographers in accordance with the levels and grades outlined above. 26The salary for a diagnostic radiographer Level 5 Grade 3 under the Award was, at the time of the proceedings, $2,533.90 per week.

Evidence 27The parties brought evidence in the proceedings in the form of affidavits. There is no utility in summarising that evidence presently, as it was essentially uncontroversial and has been relevantly set out in the introductory paragraphs of, and later in, this judgment.

Submissions of the HSU 28Mr Murphy made oral and written submissions which, when taken together, may be summarised as follows: (1)The Award imposes an obligation to "maintain and fill" the ACR position in any department of the requisite size. That requirement applies to Wollongong Hospital, which employs approximately 47 FTE diagnostic radiographers. (2)Whilst that requirement is not contained in the Award in express terms, it arises by clear implication from cl 1 (when considered in the context of the Award and its history). (3)Upon proper construction, cl 1 imposes legal obligations upon the parties. In particular, the classification structure therein does not merely define classifications as they may exist but prescribes the various classifications which must be established and to which a diagnostic radiographer must be appointed. (4)By way of example, it is evident that, whilst there is no express requirement in the Award to establish the position of Chief Radiographer or to appoint a diagnostic radiographer to the same, such a requirement must be implied since a Diagnostic Radiography department cannot function without a diagnostic radiographer in that position. It must be concluded, by parity of reasoning, that the same implication arises with respect to the ACR position. Hence, cl 1 necessitates the engagement of a diagnostic radiographer in the ACR position in a department of the requisite size. (5)The history of the Award supports that conclusion. The following aspects of the history deserve emphasis in that respect: (a)The classification structure in Hospital Employees Medical Radiation Scientists (State) Award ('the 1997 award') derived from the structural efficiency principle operating at that time, which was directed towards the establishment of a skill-related career path. (b)The statement of Cahill J that the classification structure was the "main purpose" of the 1997 award and would enable certain employees to "progress to higher rates of pay than were previously available" (see Re Hospital Employees Medical Radiation Scientists (State) Award 1997, (Cahill J, 24 March 1997, unrep)) reveals an intention for employees to have the opportunity for progression. (c)By reference to that history, the description of the classification structure as a "promotional hierarchy" by Grayson DP in Health Employees Medical Radiation Scientists (State) Award and Anor [2006] NSWIRComm 34 at [49] was indicative of an intention that diagnostic radiographers must have the opportunity to progress to higher positions under the Health Employees Medical Radiation Scientists (State) Award 2006 ('the 2006 award'). The positions designated from Level 4 to Level 6, including the ACR position at Level 5 Grade 3, may be described as 'promotional positions' in that respect. (6)The classification structure, and the promotional hierarchy it effects, reflect the administrative demands placed upon the senior staff of large Diagnostic Radiography departments (such as the department at Wollongong Hospital). The ACR position is required within that structure as it is necessary to ensure that a department of the requisite size is "conducted appropriately". (7)The requirement for an ACR within departments of the requisite size must be implied in order to "preserve or maintain the integrity" of the Award. The requirement is "as integral to the maintenance and integrity of the award as is the requirement to pay award rates and conditions of employment". The removal of the ACR position would, if not prevented, undermine the Award. (8)An individual hospital cannot, therefore, be allowed to determine which positions in the classification structure it will establish in accordance with its own perceived needs. More specifically, the ISLHD cannot thwart the clear intention of the Award to enable employees to progress to higher rates of pay by simply removing a promotional position such as that of ACR and creating in its place a position which is not covered by the Award. (9)That interpretation of the Award is reached by an application of the accepted principles of award interpretation, most particularly the principle that awards should not be construed as strictly as legislative instruments and that regard should be given to their context and history (see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 ('PSA v SoT')). (10)There is precedent for an award to prescribe that certain positions must be established and maintained. For example, the Public Health System Nurses' and Midwives' (State) Award prescribed such a requirement in the following terms: 41. DEPUTY DIRECTORS OF NURSING, ASSISTANT DIRECTORS OF NURSING (i) The following appointments shall be made in public hospitals with adjusted daily averages of occupied beds as specified hereunder: Less than 150 beds - a Deputy Director of Nursing 150 beds and over - a Deputy Director of Nursing, Assistant Directors of Nursing. (ii) Appointments under subclause (i) of this clause shall be made within two calendar months of the date this award becomes operative and thereafter within two calendar months of the occurrence of a vacancy. In default of appointment within the said period of two calendar months, the registered nurse employed as such or in a higher classification who has customarily relieved in the vacant position, or if no one has so customarily relieved, the registered nurse employed in the same or the next senior classification below the vacant position with the longest service in such classification at the public hospital, shall be deemed to be appointed until such time as another appointment is made by the employer. (iii) This clause shall not apply to a hospital using members, novices or aspirants of religious orders where a member of an order carries out the duties under this clause of an Assistant Director of Nursing or Deputy Director of Nursing. (11)Although an express requirement of the nature contained in cl 41 of the Public Health System Nurses' and Midwives' (State) Award would promote the construction contended for, the absence a requirement in such terms does not mean that the Award does not contain an implication to the same or similar effect.

Submissions of the ISLHD and the Ministry of Health 29Mr A B Gotting, counsel for the ISLHD and the Ministry of Health, made oral and written submissions which, when taken together, may be summarised as follows: (1)The present proceedings, being an application for a declaration of right, are not a "vehicle to review and critique the structure" which the ISLHD intended to introduce to Wollongong Hospital. (2)The following specific difficulties arise with the declaratory order sought: (a)The claim does not concern the roles that have been performed or are currently being performed by individuals (including the current ACR). Equally, the claim does not involve a dispute over the application of which award may apply to a position in the future. (b)The identity of who would hold the claimed right in the future is not known (it may or may not be the current ACR). (c)The claim assumes that the Award requires the positions of Chief Radiographer and ACR to be filled and, more specifically, to be filled by a diagnostic radiographer. (3)As to the latter issue, there is no obligation upon the hospital, Local Health District ('LHD') or employer to "assemble and maintain a bundle of duties into a position that is characterised as an ACR for the purposes of the Award and, equally, there is no obligation for a hospital, LHD or employer to appoint a person to that position". (4)The proposal of the ISLHD to remove the position of ACR at Wollongong Hospital does not represent an attack on the integrity of the Award, as the Award does not, upon proper construction, impose a legal obligation to establish the position of ACR at that location or to appoint a diagnostic radiographer to the same. The following factors support that construction: (a)There is no express requirement to that effect in the Award. (b)There is no implied requirement (such as by necessary intendment) to that effect in the Award. (c)The classifications in cl 1 of the Award only address, and were only intended to address, the grading of diagnostic radiographers once a LHD has appointed those persons to a position referenced in the classification structure. (d)The purpose of the classification structure in the Award is to enable the identification of the relevant salary within Pt B of the Award. "The purpose does not extend to determining the structure by which a hospital, a LHD or an employer decides as a matter of its choice to implement a particular instrument". Clause 1 is not, therefore, an operative clause of the Award. (e)Broadly speaking, a classification structure in an industrial award does not generally (in the absence of express language or necessary intendment): (i)require an employer to employ an employee in every classification, or grade or level therein, of the classification structure; (ii)require an employer to offer the opportunity for its employees to progress to every classification or grade or level therein, of the classification structure; or (iii)limit the ability of an employer to structure its operations in a way that it sees fit. (f)In the absence of clear words or necessary intendment, the classification structure in the Award does not: (i)preclude a LHD from electing not to appoint a diagnostic radiographer to a position referenced in the classification structure; (ii)prevent a LHD from assigning some or the majority of managerial functions performed by an employee in a position to a non-clinician; or (iii)limit the right of a LHD to structure its operations or restructure its medical imaging services in a way that it thinks fit. (g)The context and history of the Award does not support a contrary conclusion. (h)The accepted principles of award interpretation permit a consideration of the purpose of the instrument. The purpose of the Award was not to implement the promotional structure contended for by the HSU. The purpose of the Award, and the classification structure therein, was, in fact, the recognition of work value changes to the duties performed by diagnostic radiographers, the recognition of additional education and training undertaken by diagnostic radiographers, the desire to achieve wage parity of diagnostic radiographers across the State and other jurisdictions, the desire to improve the attraction and retention of diagnostic radiographers in the State and the desire to remove antiquated references from the classification structure. (i)Consistent with that purpose, the "only substantive effect of the Award is in cl 2 and that is to specify the relevant salaries" as it is a "salaries only Award". (j)Hence, the Award, like its predecessor, was not intended to establish, as a condition of an industrial instrument, a structure for promotional opportunities for diagnostic radiographers. The decision of Grayson DP with respect to the 2006 award outlined the grounds upon which the HSU relied in that application, none of which indicated that the purpose of the new classification structure was to implement a promotional structure. (k)To the extent that the definition section created a de-facto progression structure, such that a particular diagnostic radiographer may have some opportunity to progress in the future in the event that they were appointed to a particular position or the relevant employer required them to perform the duties of that position, the Award is, nevertheless, not intended to create a binding obligation as a matter of law upon the employer to appoint someone to each position. (l)The classification structure in the Award related solely to progressing to higher rates of pay, not to higher positions (as revealed by the observations of Cahill J upon which the HSU sought to rely (see [75] above)). For example, the automatic progression from Level 1 to Level 2 represents progression along a salary structure. Progress is not, in that sense, related to the position being performed. Further, the comments of Cahill J with respect to higher rates of pay do not impute a requirement for a promotional structure in any event, nor were they made with reference to the ACR position. In that respect, the contention of the HSU that the history of the award supports the implication of a requirement does not "have the foundation which is said to exist". (m)It should also be emphasised that meaning must not be ascribed to the words of the Award that they are not fairly capable of bearing. Moreover, the Court should not give effect to some "anteriorly derived notion of what is fair or just". The general position remains that awards are construed in accordance with the ordinary meaning of the words used. (5)The Commission does not ordinarily interfere with the right of an employer to structure operations in a way that it sees fit absent clear words or necessary intendment in the Award (subject to questions of injustice or unreasonableness). In the event that the Award did imply such the requirement contended for by the HSU, "it would amount to an interference with the right of the employer to manage and structure its business or operations as it saw fit". (6)The application is misconceived and ought be dismissed.

Principles of the Interpretation of Awards 30There was no dispute between the parties that the principles governing the interpretation of awards were established in the recent judgment in PSA v SoT at [101] - [144]. I do not propose to extract the discussion of the principles of the interpretation of awards in PSA v SoT in full, however, it is useful, for present purposes, to recall the following apposite sections: 102 In George A. Bond & Co Ltd (in liq) v McKenzie at 503-504, Street J, then a judge of the Industrial Commission of New South Wales, succinctly stated the principles applicable to the interpretation of awards which have been long applied in the industrial jurisprudence of this State as follows: Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. ... 104 These principles were given effect in the following two passages from the judgment of French J (as he then was) in City of Wanneroo at [53] and [57], as follows: 53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken" - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J). ... 57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. ... 115 Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows: (1)The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2)The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3)Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4)The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5)An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6)The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 31The Court in PSA v SoT concluded (at [143]): The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided, as discussed below (and earlier in relation to the extrapolation of principle), such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). 32As noted above, counsel for the HSU relied upon the history of the Award to support to contentions and, in that respect, relied upon the classification structure within the preceding awards, the reasons or observations provided by Members of the Commission making or varying those awards, and the principles of wage fixation, particularly the structural efficiency principle, which underpinned their making. 33The evidence as to the award history was adduced without objection and, further, the ISLHD did not dispute that attention may be paid to such matters in the consideration of the application (although it disputed that the award history had the effect contended by the HSU). 34An approach to construction which permits consideration of the history of the subject award cannot be denied in proceedings such as the present. Award history is a matter which may contribute to the proper consideration provided that the principles to which I have earlier referred, and not displaced, are adopted. 35Following the discussion of those principles in PSA v SoT, it was held (at [129]) that "an examination of the actual history of the provisions of an award... may form part of the consideration of context". In that respect, the Court referred to the judgment of Burchett J (with whom Drummond J agreed) in Short v F W Hercus (1993) 40 FCR 511 ('Short'), of which the following passage is apposite for present purposes (at 518): No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Ply Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that give rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps mostoften, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read. 36As I will discuss shortly, a textual analysis and, as Burchett J described it, the immediate context of the award provisions do suggest a construction of the Award contrary to that contended for by the HSU. However, cl 1 of the Award is not entirely free of ambiguity and recourse to the history of the subject provisions does assist in the process of construction by adding another contextual layer. Consideration of the genesis of the current classification structure and its subsequent refinement does assist in the interpretation of the provision, albeit in a manner which, in my view, confirms the textual analysis. 37Thus far, my discussion has been confined to the tracing the history of the provisions per se. It need not, in this case, be so confined as there is some ambiguity in the provision. This permits recourse to the evidence led (without objection) as to the reasons for decision given in the making or variation from time to time of the classification structure or, for that matter, decisions which underpin the process of award making at those times (that is, the Wage Fixing Principles relied upon by the HSU). 38In such cases, the Court in PSA v SoT held that the circumstances surrounding award making such as "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" represented permissible considerations in the construction of the instrument (at [128]).

A Textual Analysis 39The fact that the application for declaratory relief in the present proceedings is dependent upon an implication being drawn from the terms of the Award does not detract from the necessity to construe the Award having regard to the aforementioned principles and, in particular, for the construction to begin with a consideration of the text of the Award (see Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at [55] per Gummow J; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering [2003] FCA 260; (2003) 53 AILR 100-013 at [21] ('Skilled Engineering') and University of Western Australia v National Tertiary Education Industry Union [2003] FCA 1264 at [58]). This is particularly so where, as in this case, the applicant seeks to demonstrate that the obligations held by the respondents under the Award exist by implication as a matter of construction (see Skilled Engineering at [11]). 40The delineations between the classifications (and grades within each classification) found in cl 1 of the Award generally fall into three categories: functional (in the sense of the duties to be undertaken), qualification-based and position-based. By this means, the Award prescribes that where an employee performs duties matching the relevant criteria then that employee is entitled to be paid the salary specified in Table 1 of Pt B of the Award (although, as I have previously observed, movement between Level 1 and Level 2 of the Award arises in consequence of engagement at the base grade and advancement to Level 2 by operation of the progression requirements of cl 1). 41That conclusion may not be derived solely from the words employed in cl 2 of the Award but is the necessary outcome from reading the provisions of cl 2 with cl 1 and Table 1 of Pt B in the manner earlier described at the outset of this judgment. That approach is consistent with the principles of award interpretation identified above, which require an instrument to be read as a whole, as well as with authority (see Bryce v Apperley (1998) 82 IR 448 at 451 and 454). 42So expressed, the primary purpose of the classification structure in the Award is that contended for by the ISLHD, namely, to enable the identification of the relevant salary for a designated classification of diagnostic radiographer. No dispute, in that respect, is discernible from the HSU. 43Notwithstanding the aforementioned principles of award interpretation, neither party undertook a textual analysis of the provisions of the Award, in particular cl 1 and the subject classification (Medical Radiation Scientist (Diagnostic Radiographer) Level 5 Grade 3). Nor did the parties consider the immediate context in which that classification appeared in the Award, namely, the surrounding provisions of cl 1. 44The construction of the text of the instant classification, particularly when considered in the light of the surrounding levels of the classification structure, is not without some difficulty. 45In a manner consistent with the remainder of the classification levels, the definition of diagnostic radiographer Level 5 Grade 3 employs the use of the disjunctive "or" to specify that an employee occupying either the first or second part of the definition of the classification grade would be entitled to the corresponding salary at that level. The parts of the definition respectively concern Chief Radiographer and ACR, depending upon the size of the relevant department. 46However, the governing words for the purposes of the present application must be the opening words of each disjunctive criteria in Level 5 Grade 3, being, in the case of ACR, "The MRS (Diagnostic Radiographer) at this level is an Assistant Chief MRS (Diagnostic Radiographer)". 47The ordinary grammatical meaning of the phrase "is an" is essentially the singular present of 'be'. In that sense, 'be' indicates that something exists or has occurred. This conforms with the context in which the words appear in the subject provision (see [48] below), such that the terms suggest that the provision applies to a diagnostic radiographer occupying the position of ACR in a department of the requisite size by appointment (I will discuss shortly why the position must be filled by appointment rather than some automatic progression such as incremental movement). In other words, the Award provides that a person appointed as an ACR in a department of the requisite size should be classified as Level 5 Grade 3 and paid, as such, in accordance with the corresponding rate in Table 1 of Pt B. 48The expression "at this level" is employed extensively throughout the definitions of the levels and grades of classifications for diagnostic radiographer. With the exception of the last of the four parts in Level 4 Grade 1 and Level 5 Grade 1 (which will be later discussed), the expression appears in the opening words of each alternative part within the definition of the levels of diagnostic radiographer classification. When read as a composite phrase with the words "is an" in the opening of the second part of the definition in Level 5 Grade 3 the expression "at this level" confirms that the definition acts to confine the circumstances under which a diagnostic radiographer in a department of the requisite size will receive the commensurate salary to those holding an appointment to the position of ACR in a hospital of that size. That is supported by reference to the use of the expression "at this level" in Level 3 Grade 3 because the criteria for entry to that level is qualification-based, which indicates that the diagnostic radiographer must be prepossessed of the qualification in question before entry to that level. 49As indicated above, the fourth part of the definitions of Level 4 Grade 1 and Level 5 Grade 1 does not appear to sit entirely comfortably with that process of analysis as they do not contain the expression "at this level". Allowing for some infelicities in language, I consider, however, that the proper construction of the fourth part of each definition should be read as if the opening words of the third part of the grade also contain the introduction by the words "An MRS (Diagnostic Radiographer) at this level may". This better reflects the intention of the drafter who is endeavouring to deal with a common generic class of diagnostic radiographer, which may possess differing characteristics which are assessed as being equivalent. For example, the final two alternative parts in Level 4 Grade 1 are expressed as follows: An MRS (Diagnostic Radiographer) at this level may be an Assistant Chief MRS (Diagnostic Radiographer) within a department with 4-7 FTE MRS (Diagnostic Radiographers) in addition to other associated department staff eg. clerical, hospital assistants, etc. OR Possess a Masters Degree in an area of Medical Radiation Science specialisation which is relevant to medical imaging and which will benefit the profession. Eligibility requires a minimum of three years equivalent clinical practice after successful completion of a PDY. 50It is clear that the final part in that classification would not make sense without the transcription of the introduction "An MRS (Diagnostic Radiographer) at this level may". In that respect, the opening words of the second last part, which contain the expression "at this level", are also to be read as the introduction to the part which follows, so as to incorporate the opening words into the final part (making some allowance for infelicities of construction and grammar). 51The foregoing analysis of the expression "at this level" may, therefore, be applied universally to the parts in the definitions at each of the classifications for diagnostic radiographer. 52Thus, Level 5 Grade 3 only prescribes a rate of pay upon a diagnostic radiographer being appointed by the employer to the position of, inter alia, ACR in a department of the requisite size. The Award does not itself prescribe that a person will progress to or be appointed to that classification in the manner contemplated by Levels 1 and 2 (or receive progression akin to yearly incremental movements). When so construed, the language of the provisions does not, in my view, permit an implication to be drawn of the kind sought by the HSU because the provision does not itself imply that there will be an occupant of the position (let alone the creation of a new position per se), but only that the occupant will be classified Level 5 Grade 3 and receive the requisite rate of pay in Table 1 of Pt B when so appointed.

Context 53Thus far the interpretation of the provision has involved a textual analysis with some contextual considerations arising from the balance of cl 1 of the Award. Analysis of the context is necessary in the construction of the instant provision as the provision forms part of a coherent structure and needs to be examined in that light. 54Consideration needs to be given, however, to Level 4, where different language is employed to govern the separate definition of Grades 1 and 2 of that level. Instead of "is a/an", the drafters utilise the words "may be". The ordinary meaning of those words, particularly in the context that they appear in the respective definitions, is 'might be' or 'could be'. In other words, the phrase is used as a compound verb to designate, for example, that the diagnostic radiographer in Level 4 Grade 1 may be an ACR in a department with 4 to 7 FTE diagnostic radiographers. The use of that language is compatible with the use of the word 'or' in the sense that the provision is referring to one definition or another. 55It is not clear, from the face of the instrument, why a different form of words are employed in those classifications rather than the words 'is a/an' which appear in Level 5 and Level 6. Similar ambiguity arises from the use of the words "would manage" or "possess" in Level 4 Grade 1 and Grade 2. One possible explanation for the use of those expressions instead of 'is a/an', other than mere infelicity of language, is that the provision might recognise the historical existence of extant positions in some hospital settings and not in others. That does seem to be confirmed by the history of the Award, as I will later discuss, but it is not clear, on the evidence before the Court, why the maintenance of that distinction was carried into the present form of the Award. 56The other possible explanation is an infelicity of language. Thus, the phrase 'may be' could be read, in that context, in a manner that offers no real qualitative distinction between the operation of Level 4 Grade 1 and Grade 2 and the balance of the classifications in cl 1. On this conclusion the expression 'may be' means that a diagnostic radiographer would only attract the salary when occupying the subject classification, by way of appointment, such that the holding of the position would represent the precondition for entering the level and obtaining the corresponding salary. The maintenance of the different linguistic form may, again, be a feature of the history of the provision. 57A further step in the contextual analysis is to examine the dichotomy which exists in the progression between Levels 1 and 2 and the remaining classifications in the Award. Whereas the progression between Levels 1 and 2 is automatic upon completion of Level 1 (known as the Professional Development Year), movement into Level 3 is only by means of appointment to a position which fits the skills and responsibilities defined within that classification. In particular, Level 3 Grade 1, which is the gateway to Level 3 Grade 2 (putting aside personal regradings), expressly contemplates that entry to the grade is by appointment. In that respect, Level 3 Grade 2 refers to "applicants" to the grade and, furthermore, both Grades 1 and 2 refer to positions occupied at the grade of specialist and consultant respectively. The Award does not specifically state that entry to Level 4 onwards is by appointment, but advancement beyond that point plainly lacks the degree of automaticity that exists in the earlier stages. Further, there is an implication in the Award that the higher levels are by appointment, given that the classification structure is plainly hierarchical and operates with a similar structure at each successive level. (This approach to construction is supported by reference to the history of cl 1 of the Award). 58The structure of cl 1 of the Award does create something akin to a promotional structure in the sense that it delineates a career path based upon the categories described above (functional, qualification-based and position-based). However, there is no necessary intendment that the designation of such a promotional structure or the corresponding upward scale of salaries attaching to each level provides other than an opportunity to receive progressively higher remuneration where an employee is appointed to a position maintained in that employer's operational structure by a promotion determined by the employer. 59It follows from this analysis that the foundation upon which the Award operates is that an employee, occupying a position to which the employee has been appointed, fitting one of the functional, qualification-based or position-based criteria of a particular classification, will be entitled to the corresponding salary fixed within Table 1 of Pt B. In other words, the Award presupposes the existence of a position, established by the employer and occupied by an employee, of a kind recognised by one of the definitions in cl 1 of the Award for the purposes of the fixing of salaries under a common salary scale. The Award is promotional or career-based only in the sense that an employee who is appointed to a position above Level 2 to a higher classification or grade will progress in the salary fixed for a classification or type of work to which the employee is appointed. That conclusion sits against the drawing of an implication that the Award would create a requirement that a position be established or maintained in addition to the fixation of rates of pay. The ISLHD was correct, at least in terms of the higher levels of the classification structure, to submit that the Award could be characterised as 'salaries only'. 60Before turning to the conclusion which may flow from that analysis, it is necessary to deal with the contentions advanced by the HSU vis á vis the award history. It is sufficient to say, at this juncture, that, contrary to the case put by the HSU, the award history is confirmatory of the above analysis.

Award History 61The broad classification of radiographer, which later evolved into the class of diagnostic radiographer, was originally governed by the general awards which covered a range of hospital technical employees (see Hospital Employees - Technical (Metropolitan) Award ('HETM Award') and the Hospital Employees - Technical (State) Award ('HETS Award')). The relevant classification structure within those awards differentiated between the lower and higher levels of classification by way of the requirement for appointment, that is, the upper tiers of the classification structure could not be reached by means of a system of progression which emerged automatically when a set of preconditions were met such as a yearly advancement by an incremental step. 62On the lower levels, the awards prescribed a classification for trainee radiographers with several grades and a classification for radiographer with several grades, through which incremental progression was automatic upon each year of service. 63The higher levels of the awards, however, provided for particular promotional positions to which appointment by the employer was required in order to attract the classification and corresponding rate of pay. Those classifications were: 'Senior Radiographer in a section' (defined as "a Radiographer who is responsible to the Chief Radiographer for the administration of a separate section of the X-Ray Department of a hospital including the training of trainees in that section"), an ACR (defined as "senior radiographer who has been appointed as second in charge to the Chief Radiographer") and, finally, a Chief Radiographer (defined as "a Radiographer who has been appointed Chief Radiographer in an X-Ray Department of a Hospital"). Upon those awards, an ACR was to receive an allowance above the rate payable to a Senior Radiographer and the rate of pay for a Chief Radiographer was dependent upon the numerical grouping of the adjusted daily average ('ADA') of occupied beds in the hospital that employee managed (with higher rates of pay corresponding to increases in the ADA). 64The HSU conceded that the HETM and HETS Awards did not create a requirement (by implication) to establish the position of ACR within the classification of radiographer, nor was there an obligation to appoint a radiographer to the same (although it was contended that, as a hospital would necessarily fall within one of the numerical groupings that attracted a particular rate of pay for a Chief Radiographer, the position of Chief Radiographer was required). 65That concession overlooks a further feature of those awards, which carried through successor awards, that would stand against the drawing of the implication sought with respect to the HETM and HETS Awards. The lower levels of those awards provide for automatic progression from a base grade to successive levels such that to deny access to one of the classifications of trainee radiographer or radiographer would deny the very efficacy of the Award. No such conclusion could be reached with respect to the higher levels, however, as entry to those classifications was based purely on appointment at the discretion of the employer. The fact that the ACR position was paid by way of allowance underlines that it was accessed by appointment as required by the employer, and conforms, in principle, with the broader analysis above. The operation of those awards was, therefore, not dependent upon the establishment of, and appointment to, the positions at the higher levels of the classification structure. Thus, in conformity with the concession made by the HSU on alternative grounds, an implication could not be drawn that, upon the terms of those awards, the relevant employer was required to establish an ACR position and appoint a diagnostic radiographer to the same. 66The HSU contended the implication sought to be drawn in this matter could, however, be found in the 1997 award which was made by Cahill J by consent on 24 March 1997. 67The 1997 award retained the dual structure of the classification structure prescribed in earlier awards (that is, that, in contrast to the lower levels, the upper tiers of the classification structure could not be reached automatically by the mere possession of the criteria specified in the definition for a particular level). It represents the genesis of the present form of the classification structure in that it effected a largely skill-based hierarchy of classifications and introduced the three classes of medical radiation scientist described above (although the class currently known as 'diagnostic radiographer' was referred to simply as 'radiographer' within that structure). 68The classification structure in the 1997 award was in the following terms: "Radiographer" means a person who has acquired a Bachelor of Applied Science in Medical Radiation Technology or has equivalent qualifications recognised by the accreditation board of the Australian Institute of Radiographers. "Radiographer in Training" means a person who is undertaking a Bachelor of Applied Science in Medical Radiation Technology or equivalent qualification which will lead to recognition by the accreditation board of the Australian Institute of Radiographers. ... "Medical Radiation Scientists (MRS)" are employees employed as radiographers, radiation therapists and nuclear medicine technologists and who are classified into five levels as follows: Level 1 - MRS at this level are employed during their professional development year. Progression between Level 1 and Level 2 is automatic upon the completion of the professional development year. Level 2 - MRS at this level have completed their professional development year and are employed as either a Radiographer, Nuclear Medicine Technologist or Radiation Therapist. Level 3 - MRS at this level perform complex clinical procedures and demonstrate a degree of competency in them which reflects a level of continuing education and/or practical expertise. The MRS have maintained a consistently high standard of practice within the profession and demonstrated proven problem solving skills. They contribute to the establishment of clinical protocols and the development of activities, techniques and procedures within the department. They demonstrate a level of expertise by performance or means such as tutoring in the clinical situation to either undergraduate, post-graduate students or other health professionals or by obtaining an appropriate post-graduate qualification or have gained recognition as an acknowledged expert through publication or delivering technical papers at seminars and/or conferences and/or supervise the operations of a section of the department (specialist or general) and perform associated administrative duties. Level 4 - MRS at this level may manage a department in a hospital of less than 200 ADA or be appointed to a designated position of Assistant Manager in a hospital. Employees shall not be eligible to progress to the second year of this level unless they manage a department in a hospital of over 100 ADA or its equivalent. Level 5 - Grade 1 - MRS at this level will be appointed to manage a Radiography Department in a hospital of less than 300 ADA or manage a Nuclear Medicine Department in the following hospitals: St. Vincent's Hospital, Liverpool Hospital, St. George Hospital. Grade 2 - MRS at this level will be appointed to manage a Radiography Department in a hospital of less then 500 ADA or manage a Nuclear Medicine Department in the following hospitals: Royal Prince Alfred Hospital, Westmead Hospital, John Hunter Hospital, Royal North Shore Hospital, Prince of Wales Hospital. Grade 3 - MRS at this level are appointed to manage a Radiography Department in a hospital of more than 500 ADA. Grade 4 - MRS at this level are appointed to manage the Radiography Departments in the following hospitals: Royal Prince Alfred Hospital, Westmead Hospital, Royal North Shore Hospital, St. Vincent's Hospital, Prince Henry/Prince of Wales Hospitals, Liverpool Hospital. 69The skill-based structure deriving from this award was a substantial focus of the HSU's attention in the present proceedings, to the extent that, as noted above, reliance was placed upon the Wage Fixing Principles, in particular the structural efficiency principle, extant at the time of its making (to which I will later return). 70The form of the 1997 award varied the previous position specific classification structure such that the classifications of trainee radiographer and radiographer were compressed into the first two levels of the five level classification structure, the latter levels of which were largely skill-based. 71Hence, Level 1 and Level 2 of the classification structure provided for automatic yearly progression along an incremental scale, whereas access to Level 3 was dependent upon being possessed of particular skills (although, as I will discuss below, the mere possession of those skills did not, in itself, guarantee a radiographer progression to that classification). By Level 4, however, entry to the classification was, at least partly, by way of appointment (in particular to the designated position of Assistant Manager in a hospital). 72The language employed in the opening words of the parts of definitions in Level 5 Grade 1 and Grade 2 of the 1997 award differed from that found at Level 5 Grade 3 and Grade 4. Grades 1 and 2 provided that "MRS at this level will be appointed...". When read in conjunction with the expression "at that level", the phrase "will be appointed", whilst not entirely unattended with ambiguity, appears to simply affix the rate of pay for a radiographer classified at that level. Despite some infelicity of language, the expression used in Grades 3 and 4, "MRS at this level are appointed...", also affixed the remuneration that a diagnostic radiographer appointed to the level will be entitled. The reason for the discrepancy between the two formulations in Level 5 in the 1997 award is not clear, however it may simply reflect the fact that radiographers were already employed in particular positions at the time that the award was made. 73Another notable variation from the HETM and HETS Awards to the 1997 award is the inclusion of the term "manage" as a functional descriptor for the classifications at Level 4 and Level 5. It may be noted, in this respect, that that function may be associated with the Chief Radiographer and there is no reference, in terms, to the ACR in the 1997 award. 74This analysis demonstrates that, at least at the higher levels of the classification structure, progression was expressed to be dependent upon appointment to subject positions (and was, therefore, of a different character to the lower levels of the structure). 75The observations of Cahill J in Re Hospital Employees Medical Radiation Scientists (State) Award 1997, (Cahill J, 24 March 1997, unrep) at 1 - 2, in my view, bear out that conclusion with considerable clarity: The new award per se will not have the effect of increasing salaries, but because of the amended classification structure which the award contains, and which is the main purpose of its making, existing employees, or some of them, will have the opportunity to progress to higher rates of pay than were previously available. Under the restructure, various levels of medical radiation scientist are prescribed. There is firstly a radiographer in training classification and rate, and thereafter employees will be assigned to one of five levels prescribed by the award. Apart from level one, each of those levels has several salary rates prescribed, referable to years of service. (Emphasis added). 76Thus, whilst the 1997 award affixed the rates of pay for radiographers appointed to positions in the higher levels of the classification structure, and, in so doing, provided the opportunity to progress to said rates of pay, given the differential structure of the award, an implication cannot be found that the award imposed an obligation to establish positions at those higher levels, such as an ACR, and to appoint a radiographer to the same. 77The reliance of the HSU upon the contended effect of the structural efficiency principle, namely, that the 'skill-related career path' engendered by that principle supported the requirement to establish an ACR position in a department of the requisite size, may be returned to in the light of the above discussion. 78In my view, the HSU was correct in their submission that the structural efficiency principle underpinned the 1997 award. Although Cahill J did not expressly mention that principle in his decision, the structural efficiency principle was, as noted above, extant at the time that the 1997 award was made and the nature of the reform to the classification structure therein epitomised the changes brought about by the structural efficiency adjustment mechanism. However, a review of the operation of the principle does not support the contention advanced by the HSU in these proceedings. 79The structural efficiency principle formed the centrepiece of the Wage Fixing Principles during the period in which the 1997 award was made and must, therefore, be considered for that award to be properly understood. 80The principle had its genesis in National Wage Case - August 1988 (1988) 25 IR 170 and was adopted in State Wage Case February 1988 (NSW) (1988) 23 IR 340 (at 33). At that stage, the principle came to be expressed as a discrete principle, which carried through in that form until the State Wage Case - December 1993 (1993) 52 IR 157. The principle was expressed in that decision in the following terms (at 206-207): Consistent with the October 1989, the May 1991 and the March 1992 State Wage Case decisions, the structural efficiency principle provides a framework through which it is intended that the parties to an award co-operate positively in a fundamental review of that award with a view to implementing measures to improve the efficiency of industry and provide employees with access to more varied, fulfilling and better paid jobs. The measures should include but not be limited to: * establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation; * eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform; * creating appropriate relativities between different categories of workers within the award and at enterprise level; * ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry; * including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments; * updating and/or rationalising the list of interested parties to awards; * addressing any cases where award provisions discriminate against sections of the workforce; * examining both award and non-award matters to test whether work classifications and basic work patterns and arrangements are appropriate - the examination to include specific consideration of: (i) the contract of employment including the employment of casual, part-time, temporary, fixed term and seasonal employees, (ii) the arrangement of working hours, (iii) the scope and incidence of the award; * inserting facilitative provisions in relevant clauses of the award; * establishing a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters affecting their efficiency and productivity; * providing in an award a provision to the effect that an employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training. Structural efficiency exercises should incorporate all past work value considerations. 81Thereafter, the principle was carried into effect by way of a statement of principle found in the preamble to the Wage Fixing Principles. In the State Wage Case - December 1994 (1994) 57 IR 1 the principle was expressed in the following terms (at 39): In exercising its powers and obligations under the Industrial Relations Act 1991 (the Act), the Commission will continue to apply structural efficiency considerations including minimum rates adjustment provisions consistent with the State Wage Case - August 1988 (No 2) (1989) 27 IR 360; State Wage Case - October 1989 (unreported); State Wage Case - May 1991 (1991) 36 IR 362; State Wage Case - March 1992 (1992) 41 IR 239; State Wage Case - December 1993 (1993) 52 IR 157 decisions and the March 1990 Minimum Rates Adjustment (1990) 35 IR 183 decision. 82The principle was not disturbed in the State Wage Case April 1996 (1996) 64 IR 439, which was limited to the consideration of a narrowly confined issue, and remained in force in the State Wage Case - August 1997 (1997) 73 IR 200 (some four months after the 1997 award was made). 83It does not follow, however, that the principle operated to effect the requirement contended for by the HSU. The establishment of a classification structure which is stratified into levels based upon skill or function deriving from the operation of the principle does not necessarily mean that any employee possessed of skills nominated for a particular classification or able to perform the designated functions would be entitled, by that fact alone, to receive the salary prescribed for such classifications (unless appointed to a position in which those skills were required to be discharged or functions performed). 84The principle was established in 1988 in order to, inter alia, "provide workers with access to more varied, fulfilling and better paid jobs" (National Wage Case - August 1998 at 174). This "key element in a new system of wage fixation" was made "to facilitate the type of fundamental review essential to ensure that existing award structures are relevant to modern competitive requirements of industry and are in the best interests of both management and workers" by way of providing wage increases which were tied directly to implementation of the principle (National Wage Case - August 1998 at 175). The word 'access' in this context connotes that the employee may receive appointment to a 'better paid [job]' by means of obtaining a position through the acquisition of skills and qualifications necessary for the fulfilment of that position. 85This is supported by a passage of a decision of the Australian Industrial Relations Commission and the Industrial Commission of New South Wales (see National Wage Case August 1989 (1989) 30 IR 81 at 90 and State Wage Case August 1989 (1989) 30 IR 107 at 112), wherein it was anticipated that structural efficiency exercises would often incorporate the establishment of new classification structures in lieu of position specific structures. In discussing the transition of workers to those structures, both the state and federal Commission quoted in those decisions the following submission of the ACTU: "Hence workers should not be placed in a classification unless they have the training and experience necessary to perform the full range of the functions comprehended by the new classification and are actually required to perform those functions" (see State Wage Case August 1989 at 112). 86Those passages illustrate with reasonable clarity the nature and operation of the classification structures which emerged by way of the structural efficiency principle, namely, the new structures provided promotional or career opportunities for employees who acquired the skills corresponding to a particular classification level which may be accessed where a position is available and the employee acquires the requisite appointment to the same. This was confirmed, in practice, over the many years in which the principle operated in New South Wales. 87It would be antithetical to the structural efficiency principle to accept that any employee who has acquired the requisite skill set as defined in a classification structure must necessarily thereupon be appointed to a position at the relevant level. Such a conclusion must be a fortiori, if, as in this case, it is contended that it is necessary to create a position in the employer's enterprise or organisation to correspond with that skill set or functional characterisation (or position, in the case of the ACR) found within the Award. If there is no requirement to appoint someone then, as a matter of logic, there should be no need to create a position. Such a proposition would be no less antithetical to the principle. 88In contrast to the contention advanced by the HSU, the fact that the classification structure in the 1997 award derived from the structural efficiency principle demonstrates, in my view, that the presence of particular classifications, at least in the higher levels of the classification structure, did not create, in itself, a requirement to appoint an employee to the same, let alone, create a requirement for an employer to establish positions in its organisation structure matching those classifications. Upon a proper understanding of the operation of that system of award making, as described above, the possession of designated skills simply made certain employees eligible for access to a classification upon appointment to a position so classified (and, thereby, entitled to commensurate remuneration). 89On 14 February 2006, Grayson DP varied the Award ('the 2006 award'). Whilst his Honour maintained the essential structure of the classification system, that variation occasioned a substantial increase in the complexity of the classification structure (which is retained in essentially the same terms in the Award to date (extracted in [23] of this decision). 90In order to understand the variation made by Grayson DP, it is necessary to recall that a variation to the 1997 award was made by McLeay C on 26 October 2001 ('the 2001 award'). Upon the 2001 award the three classes of medical radiation scientist no longer shared a common classification structure. The five level classification structure provided by the 1997 award was retained to cover radiographers and nuclear medicine technologists (as those employees were then known), but a discrete six level classification structure was created by which to classify radiation therapists. 91In varying the structure provided for by the 2001 award, the 2006 award established a discrete classification structure for each of the three classes of medical radiation scientist (described, for the first time, as 'diagnostic radiographer', 'nuclear medicine' and 'radiation therapist'), but reintroduced a common salary structure for those classifications across the classes of medical radiation scientist, such that the three classes of medical radiation scientist were afforded equal remuneration despite their distinct definitions. 92The classification structure established for diagnostic radiographers comprised six levels. From Level 3 onwards, each level contained multiple grades and from Level 4 those grades were further divided into parts, each of which represented alternative criteria by which an employee may attract the payment of a salary corresponding to the subject grade. For the first time since an allowance was provided for the position in the HETM and HETS Awards, the ACR was specifically referred to as a position recognised in the definitions of particular levels or grades in the classification structure such that the appearance of the ACR in a part within a definition meant that an occupant of the position would be classified within the subject grade. In addition, the 2006 award discarded the previous reliance on the ADA of occupied beds, in favour of determining the classification applicable to certain medical radiation scientists, including an ACR, by the number of FTE staff employed in the relevant radiography department (see Health Employees Medical Radiation Scientists (State) Award and Anor at [15]). 93Thus, upon that award, the ACR position appears in several of the classifications for diagnostic radiographer, graded in accordance with the number of FTE diagnostic radiographers in the relevant department with a corresponding rate in the common salary scale. 94Nevertheless, as noted above, the classification structure within the 2006 award, and, ultimately, the Award itself, continued the classification structure which differentiated between lower and higher levels, as modified by the inclusion of a partially skill-based criteria at the higher levels per Cahill J. That continuation is evidenced by the following features of the Award: (1)The classification structure retained the automatic progression between Level 1 and Level 2; (2)The classification structure provided for appointment to Level 3; (3)By implication, entry to the classifications from Level 4 onwards continued to be by appointment. There was no apparent intention to change the form of the classification structure that differentiated between the lower and higher levels by way of the requirement for appointment to a particular position in the higher levels and the language employed in the definition of each grade is suggestive of the same. 95Thus, a continuum may be drawn from the HETM and HETS Awards to the present form of the Award, in that respect, with nothing altering the inherent nature of the classification structure such that the Award continued to prescribe a requirement for appointment to access the higher levels of the classification structure, including that of the ACR. 96This is confirmed by the reasons given by Grayson DP: 47 As Mr Murphy submitted and it is not surprising given the obvious lateness and constraints of time in its formulation, the HAC offer is silent as to a framework of definitions which would underpin the proposed new classification structure. This compares with the comprehensive and detailed framework of definitions proposed by HSU about which there was no criticism by HAC during the course of proceedings. 48 Further, the HAC offer unlike the HSU claim proposes to limit the base grade employees, the largest group of employees to the penultimate year of the 8-year base grade hospital scientist range. There seems no reason for this other than as Mr Murphy suggested, as a means of reducing costs. If there is a justification for alignment with hospital scientists as I am comfortably satisfied there is, it would be inappropriate to deny entry level graduates, the largest representative group within the medical radiation classifications, the same scope and reach as their counterparts within the hospital scientist groups. 49 There are further points of difference between the HAC offer and the HSU claim as the two structures move upwards into the promotional hierarchy which are in the case of the HAC offer unexplained and unsupported by a framework of definitions. This is in contrast to the HSU claim and the latter, as Mr Murphy submitted, is based squarely on the outcome determined by the Full Bench in the Pharmacists case. I consider, on balance, that the HSU proposal is better supported on the cases presented and has more to commend it in the industrial sense. (Emphasis added). 97In the context of the award history, and the particular changes in the 2006 award, Grayson DP's reference to a "promotional hierarchy" (see [96] above) should not be seen as a departure from the classification structures in the antecedent awards discussed above, but in conformity with the conclusion that the Award affords the opportunity for employees to progress to higher rates of pay. In that respect, I do not accept the submission by the HSU that the promotional hierarchy referred to is "mandatory" such that all of the positions therein must be established and maintained and have a diagnostic radiographer appointed to the same. 98It might also be noted that there was no evidence as to the historical practice or convention by which diagnostic radiographers were selected for positions above Level 3 and, in particular, the position of ACR. 99The history of the Award thereby does not reveal, in my view, a basis for drawing the implication from the Award as sought by the HSU. Rather, the award history confirms the conclusion earlier reached by way of textual and contextual analysis that the Award does not prescribe a requirement to establish an ACR position in a department of the requisite size or appoint a diagnostic radiographer to the same.

No Obligation Exists by Implication 100In one sense, the conclusions reached above are sufficient to dispose of the application (by its dismissal). However, something more should be said about the principles concerning the drawing of an implication from the terms of a consent award and how those principles might further bear upon the present application. 101Neither party made submissions as to the appropriate test for the drawing of an implication from the terms of an award, although Mr Gotting suggested that an implication may only exist by "necessary intendment" found from the terms of the Award. 102The test as to whether an implication may be found proposed in Mr Gotting's submission has the hallmarks of the principles associated with the construction of statutes. When translated to the consideration of whether an implication may arise from the terms of an award the question, on this test, would be whether an obligation arises from the terms of an award by reasonable and necessary implication (Skilled Engineering at [13]). 103An alternative approach is to apply the rules applicable to the construction of contracts, particularly as the Award was made by consent (Skilled Engineering at [15]). 104In Skilled Engineering, Finkelstein J observed that "[t]he prevailing view seems to be that the rules applicable to the construction of contracts should be applied to both awards and certified agreements" (at [15]). This conforms with the approach taken by Branson J in Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd [2001] FCA 1009; (2001) 108 IR 409 (see [46]). 105Some doubts about the applicability of those principles to certified agreements were expressed by Siopis J in McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 (see [102] - [107]). However, his Honour did not resolve the question as the implication sought in that matter was not available on any of the aforementioned tests. 106I propose to adopt the approach taken by Finkelstein J in Skilled Engineering in this matter. The reservations of Siopis J were expressed in the context of an obligation sought to be established by implication via the inclusion of a term in an industrial agreement. This matter may be distinguished, however, because an implication is sought as a matter of construction from the terms of a consent award. It should be emphasised that that conclusion is reached in the absence of argument on the question but with the conviction that the conclusion would not differ even if the stricter test vis á vis the rules of statutory interpretation were applied in this case. 107On that approach, the relevant authority for the consideration of whether an implication arises from the terms of the Award in this matter is BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-283 ('BP Westernport') in the following manner: In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. 108Those conditions were approved in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 at 347 and, more recently, in Canty v Paperlinx Australia Pty Ltd [2014] NSWCA 309 at [65]. 109The fourth and fifth conditions outlined in BP Westernport do not appear to be offended by the implication sought to be drawn in this matter. However, the same may not be said of conditions 1, 2 and 3, to which I will now turn. 110The third condition in BP Westernport is plainly not met. The construction of the Award undertaken earlier in this judgment demonstrates that the implication sought is far from obvious. 111As to the second condition, the Award will be effective without the implication sought by the HSU. The absence of an ACR at a hospital does not interfere with the effective operation of the Award because no part of the Award is functionally dependent upon such a position existing. In particular, no promotional step is dependent upon the appointment of an ACR and no provision of the Award requires such appointment for its effective operation. 112The Chief Radiographer and ACR are alternative positions for entry at the relevant levels and grades. It might also be noted there was not created under the Award a condition by which it is necessary to establish and maintain an ACR in order for the duties of the Chief Radiographer to be performed or fulfilled (such as a provision for higher duties to relieve the Chief Radiographer in particular circumstances). 113True, it is, one provision in the Award refers to the position of ACR in a manner which could have some functional significance for the operation of the Award, namely, where the subject diagnostic radiographer in the first definition in Level 4 Grade 1 is described as being "responsible to" the ACR or to the Chief Radiographer. However, that reference to the ACR is as one of two alternatives such that, supposing there was no ACR to which the subject diagnostic radiographer may report, that aspect of the Award would still be efficacious since the employee would simply report to the Chief Radiographer. 114Counsel for the HSU submitted, by way of an argument which was not fully developed, that if an implied requirement was not found to establish an ACR position and appoint a diagnostic radiographer to the same then an analogous requirement could not be found for the Chief Radiographer (the presumption in this argument is that the ISLHD had no alternative but to maintain the Chief Radiographer position at all hospitals). That argument was put in the abstract, without any associated analysis of the relevant text or context, and no declaration as such was sought with respect to the Chief Radiographer. 115Without finally ruling upon whether the Award gives rise to an implied requirement to establish the position of Chief Radiographer and to appoint a diagnostic radiographer to the same, it may be observed that it does not follow from the foregoing analysis that the conclusions reached above concerning the textual and contextual considerations arising in relation to the ACR position at Level 5 Grade 3 would necessarily be repeated with respect to those aspects of the definitional structure in cl 1 concerning the Chief Radiographer for the following reasons: (1)A comparison of the distinct language used in the two categories in Level 5 Grade 3 reveals that, whilst the ACR at that level is described only in terms of the position title, the Chief Radiographer is also described in functional terms. That is, the Chief Radiographer is described as a diagnostic radiographer "who manages a department". The distinction in the language describing the ACR and the Chief Radiographer is reflected throughout cl 1, although the Chief Radiographer at Level 4 Grade 1 is described as "responsible to a Health Manager for both the clinical and financial management of the Imaging department". In contrast to the ACR position, the inclusion of functional criteria in the description of the Chief Radiographer may entitle a diagnostic radiographer performing the relevant functions to access the corresponding level of the classification structure and to remuneration at the commensurate rate (without having been formally appointed to the position per se). (2)The Chief Radiographer position is referred to throughout the classification structure such that if a position so described was not established and a diagnostic radiographer appointed to the same parts of the Award may be rendered nugatory. An application for appointment to Level 3 Grade 1 or Grade 2, for example, is assessed by "a panel of at least three Chief MRS (Diagnostic Radiographers) or their representative". 116Counsel for the HSU also submitted that the delineation between various classifications of ACR by the number of FTE diagnostic radiographers in the department indicated that a department must employ an ACR whenever it falls within one of the designated numerical groupings (in effect, whenever there are more than 4 FTE diagnostic radiographers in the department). A contrary hypothesis, and one which is consistent with the foregoing textual and contextual analysis, is that the numerical grouping merely indicates that, where there is the relevant number of FTE diagnostic radiographers in a department and a diagnostic radiographer is appointed to the ACR position, they will be remunerated according to the corresponding classification. 117As to the first condition, the implication contended for, having regard to the immediate context of the present proceedings is, in essence, that the Award, and in particular cl 1, not only requires commensurate payment for performance of a function or position described or nominated in cl 1 of the Award (namely, ACR in a hospital of the requisite size) but also the maintenance of a function or position within the operational structure of the employer corresponding to the description set out within the classification structure in the Award and the appointment of diagnostic radiographers to the same. Such an implication is neither reasonable nor equitable. 118The construction of the Award sought in the present proceedings would have the effect of obliging the employer, as a matter or law, to establish or maintain a position corresponding with the definition of Level 5 Grade 3 of the Award (vis á vis the ACR) and appoint a diagnostic radiographer to the same, regardless of whether there was a need for the subject position or the employer had otherwise determined to assemble and maintain a bundle of duties in an alternative form to better suit its operations (albeit attracting a different classification level or perhaps the operation of another award). 119The drawing of such an implication would require language demonstrating a clear intendment which is simply not available on the face of the instrument here under consideration. 120This is not to suggest that in a given situation an employer may not be required to have a particular staffing configuration by virtue of considerations such as fairness to employees or occupational health and safety, but those matters arise for consideration in a legal context much different from that presently invoked. 121Having regard to the foregoing consideration, it is clear that the application of the test for the implication of a term in the construction of a statute also could not be met in the present case. 122Finally, there is nothing in the construction I have preferred which, in my view, undermines the integrity of the Award because the construction facilitates the central purpose for which the Award was made, namely, to affix rates of pay for diagnostic radiographers.

Additional Issues Ventilated in the Proceedings 123Additional issues were ventilated in the proceedings by the ISLHD with respect to managerial prerogative and the technical difficulties with the application, which both have some merit to varying degrees. 124As to managerial prerogative, there is no reason from an industrial standpoint why one would draw a conclusion that an award can limit the manner by which an employer can seek to have particular functions discharged absent express terms to that effect. It was common ground in these proceedings that such terms were not found in the Award, in contrast to those expressed in the Public Health System Nurses' and Midwives' (State) Award upon which the HSU sought to rely. There is nothing in the Award, in my view, which would warrant the drawing of an implication such that the employer would be prevented from adjusting its staffing arrangements in favour of an alternative organisational model (such as the proposed movement from employment of an ACR to the manager position described at the outset of this decision). 125The ISLHD raised a number of technical difficulties with the current application, which, in my view, have some merit. However, as observed in [9] above, it is unnecessary to fully resolve those questions in view of the conclusion I have reached in this matter.

Conclusion 126Upon proper construction, the Award does not create a legal obligation, by implication drawn from the terms of the Award and, in particular cl 1, that, within a hospital in which there are employed in excess of 24 FTE diagnostic radiographers, there must be established or maintained, in addition to the position of Chief Radiographer, a position of Assistant Chief MRS (Diagnostic Radiographer) or that a diagnostic radiographer must be appointed to the same. In consequence, the application for declaratory relief pursuant to s 154 of the IR Act filed by the HSU on 16 May 2014, as amended during the course of proceedings on 15 August 2014, must be dismissed.

Orders 127The Court orders: (1)The application for declaration filed on 16 May 2014, as amended, is dismissed. (2)Costs reserved.

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: 16 December 2014

Health Services Union NSW v NSW Ministry of Health in respect of the Illawarra Shoalhaven Health District

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