Health Services Union NSW v Secretary, NSW Ministry of Health in respect of Justice Health and Forensic Mental Health Network

Industrial Relations Commission (NSW)|2017-06-29|Before: Health J

Solicitors: Mr B Edghill (Notifier) Mr M Paul, Bartier Perry Lawyers (Respondent) File Number(s): 2016/00059518

decision

These proceedings were commenced by way of a notification of an industrial dispute filed in the Industrial Registry on 24 February 2016 by the Health Services Union NSW ("HSU") pursuant to section 130 of the Industrial Relations Act 1996 ("Act"). The respondent to that notification was identified as Justice Health and Forensic Mental Health Network ("Network"). In these proceedings, the employer of the affected employees has been correctly identified as the Secretary, NSW Ministry of Health in respect of Justice Health and Forensic Mental Health Network ("respondent").
The dispute arises from a claim by the HSU for payment of an environmental allowance to Clinical Support Workers ("CSWs") who are employed in the Network. CSWs work both inside and outside of the correctional centre environment providing professional assistance to inmates in the lead up to, and period after, their discharge from a correctional centre.
Attached to the dispute notification was a document which was said by the HSU to be a Determination by the Department of Health NSW ("Determination"). The Determination is set out below: CORRECTIONS HEALTH SERVICE PAYMENT OF ENVIRONMENTAL ALLOWANCE TO NON-NURSING STAFF In terms of 'industrial matters' (as defined by the NSW Industrial Relations Act 1996), Section 115(3) of the Health Services Act 1997 provides that the Health Administration Corporation is the employer of employees of the NSW Health Service. Pursuant to Section 115(2) of the Health Services Act 1997, and except as otherwise fixed in accordance with law, the Health Administration Corporation hereby determines as follows: 1. That the environmental allowance paid to nurses at Corrections Health Service as determined by the Industrial Relations Commission at an amount currently set at $1,854 per annum, and paid for all purposes, including shift penalties and overtime, to also apply on the same basis to non-nursing staff at Corrections Health who have substantial, regular and direct contact with inmates. 2. This determination to take effect from the first full pay period on or after 1 July 2002. 3. The allowance is to be adjusted in the future by State Wage Case decisions consistent with the nursing decision. Dated at Sydney this twelfth day of July 2002.

History of the environmental allowance

Clause 17 of the Public Health System Nurses' and Midwives' (State) Award 2015 contains the following provision 17. Special Rates and Conditions ………………………… (iii) All nurses employed by the Justice Health Service, nurses working in the Kestrel Unit, Morisset and Court Liaison Nurses employed by a Local Health District shall be paid a special environmental allowance as set out in item 11A of Table 2 of Part B. Such allowance shall be considered as salary for all purposes of this award (including the calculation of overtime and penalty rates).and shall be adjusted from time to time in accordance with any general wage movements in this Award. Part time and Casual employees shall be paid this allowance on a pro rata basis.
As at the date of the hearing of this matter, the quantum of the "special environmental allowance" was $2,865.00 per annum.
The environmental allowance for nurses working in the prison system was introduced by agreement in the 1970's. In 1998 the New South Wales Nurses' Association notified the Commission of an industrial dispute with the Corrections Health Service concerning the issue as to whether or not this allowance should be treated as part of salary for all purposes, including the calculation of overtime and shift penalties. That dispute came before then Vice-President of the Commission, Walton J. On 12 January 1999 his Honour issued a Recommendation which included the following: Clause 6 of the Corrections Health Service Nurses' (Interim) State Award presently provides that employees shall be paid a special environmental allowance, the quantum of which is prescribed in that award. The award provides that such allowance is "payable during all periods of paid leave". Prior to the making of that award, the subject allowance was prescribed by various industrial instruments including agreements made between the Public Service Board and the Public Service Association pursuant to the Public Service Act, 1902. Different descriptions of the allowance were given in those earlier instruments, although in each case it would appear the allowance is described as a special allowance. ……………………. The situation of employees of the Department of Corrective Services in relation to the payment of an environmental allowance is unclear. However, an environmental allowance is paid in certain circumstances by that Department to its employees. (Notification under section 130 by the New South Wales Nurses' Association of a dispute with Corrections Health Service re industry allowance - Unreported. Matter No. IRC 6855 of 1998, 12 January 1999)
On 29 March 2001 a Full Bench of the Commission (Wright J, President, Walton J, Vice-President, and McKenna C) handed down its decision in Re Corrections Health Service Nurses' (State) Award (No.2) ([2001] NSWIRComm 58). In those proceedings the Health Administration Corporation ("HAC"), the employer for industrial purposes of nurses working in the Corrections Health Service ("CHS"), sought the removal of the environmental allowance which was then payable to those employees. In its decision, the Full Bench stated as follows: 13 An overview of the evidence presented in the HAC's case was that, all things considered, there is nothing relevantly distinguishable about the work performed by CHS nurses when compared to and contrasted with the work performed by other nurses in the public health system. Admittedly, there are some uniquely challenging aspects of the CHS nurses' work; however, to the extent that challenging and adverse work-related conditions are experienced by CHS nurses, it can be seen that qualitatively not dissimilar occupational experiences are encountered by nurses employed elsewhere in public hospitals. To the extent that CHS nurses work in facilities under conditions which are secure or security-conscious, then such conditions may be seen, on some analyses, as potentially beneficial in terms of the CHS nurses' personal security (for example, when compared to those of other nurses working with patients who are potentially assaultive or manipulative). The level of professional responsibility exercised by CHS nurses with respect to matters such as administration of medication and so forth was broadly akin to, and not different from, nurses employed in a range of other areas in public hospitals. Mr Hatcher submitted that given the commonality of the work performed by public hospital nurses and CHS nurses, and regardless of the history of different streams of industrial regulation, it was appropriate there now should be a convergence of nurses' industrial entitlements under the award, except to the extent that any savings provisions may be considered necessary or appropriate in the case of the individual transferred employees' entitlements.
In relation to the specific issue of the environmental allowance, the Full Bench stated: Environmental Allowance 15 Upon consideration of the evidence and submissions, in conjunction with our observations during the inspections, the union has not, in our view, established a case that CHS nurses' professional responsibilities and working environments are qualitatively different from those of other nurses in the public system to such a degree of difference as to justify the granting of the full range of matters claimed by the union. Nor has the union demonstrated such changed circumstances as would warrant the very considerable adjustment in the allowance which has been sought. However, we have not been persuaded there are cogent grounds to diminish, let alone extinguish, those entitlements currently enjoyed by CHS nurses which are additional to those applicable to public hospital nurses. The additional entitlements enjoyed by CHS nurses have arisen as a result of the history of industrial regulation of the different groups of employees. 16 The HAC's case has not led us to the view that it would be an appropriate exercise of discretion effectively to ignore history and excise all such beneficial conditions for CHS nurses (even if, for example, the transitional measures in the Health Administration Act did not apply to at least some CHS nurses who may be affected by the proposed changes). 17 The history of industrial regulation is not confined to the payment of the environmental allowance by virtue of a custom or convention, or the operation of some administrative policy or agreement. The environmental allowance was inserted only recently in an award of this Commission by consent of the parties to these proceedings. It was not suggested by the HAC that the circumstances giving rise to the making of that award have altered materially in such a manner as would warrant the removal of the provision. Rather, it was suggested that the insertion of the rates for CHS nurses into the Public Hospital Nurses' (State) Award of itself warranted such a result. We consider that the CHS has not made out an application to remove from the existing award the provisions for an environmental allowance: see Re Pastoral Industry (State) Award [2001] NSWIRComm 27. 18 Further, this approach by the HAC does not sit comfortably with its recognition that some special rates nonetheless should be continued for CHS nurses under the Public Hospital Nurses' (State) Award (namely, the salary differential later referred to in this decision) and its concession that the environmental allowance would continue for employees by either administrative or private treaty arrangement. 19 On the evidence, we are satisfied there are aspects of nurses' work within the public hospital system which may involve adverse working conditions similar to those which may be experienced by CHS nurses. As Mr Hatcher's submissions noted: 16. There are, no doubt, particular circumstances of work in the Corrections Health Service which might be distinguished from work in Public Hospitals. .... 17. Certainly, the evidence will reveal that nurses in Corrections Health are exposed to a number of patients affected by Drug and Alcohol problems and suffering from Mental Health problems. However, this is the lot of nurses in forensic wards and engaged in Mental Health generally. It must be remembered that the prisons population is transient, patients may be treated by nurses at the Industrial Training Centre at Long Bay [gaol] one week, in an environment where security is ever present, and may present with the same or more aggravated problems in view of the lack of supervision, at a local hospital the following week. Nurses in Corrections Health have the advantage of records of the patient's history, allowing more accurate judgement of the risk posed. Moreover, the security arrangements ensure a degree of safety denied to nurses in the Public Hospital environment. 18. The evidence establishes that the risks endured by nurses in corrections health are no greater, and arguably less, than those experienced by nurses in accident and emergency units. In such units a common basis for presentation are drug and alcohol or mental health problems and there is a need to discount other physical factors. All this in an environment where security is casually available, in the sense of there being no equivalent to the "sight or sound policy" in Corrections Health. ... 20 It nonetheless seems to us that the types of characteristics creating an adverse occupational environment for CHS nurses associated with their work in prisons could not be described as the general or typical situation for nurses in public hospitals. By contrast, the evidence in the proceedings coupled with our own observations on inspection led us to the conclusion that the everyday working environment for CHS nurses, particular as it is to the exigencies associated with prisons and the characteristics of some prisoners, has features which may be acknowledged to be inherently and generally oppressive. For instance, the Long Bay gaol psychiatric facility accommodates the most high-risk forensic patients in New South Wales, dealing with serious offenders found not guilty of crimes by reason of insanity. (emphasis added) 21 When the environmental allowance was introduced by agreement in the 1970s, it was then noted that the purpose of the payment was "to cover all incidents of employment at such an establishment". We accept the union's claim that the environmental allowance should be payable to all CHS nurses working in this environment, not only transferred employees. Our consideration of the parties' submissions has led us to the view that the environmental allowance should be retained and increased, but with only a modest adjustment in some recognition of the fact, for example, that the allowance has not always been adjusted in line with State Wage Case increases. We have been satisfied that the particular incidents of employment for CHS nurses are not otherwise comprehended by the remuneration set in the award for public hospital nurses, and that an environmental allowance for CHS nurses should be incorporated in the Public Hospital Nurses' (State) Award in recognition of the conditions under which work is performed by such persons and the value of their work when performed in such circumstances. 22 An amount of $1,800 a year, described as an environmental allowance, shall be paid to CHS nurses for all incidents of employment experienced in prisons, and prison hospitals and medical facilities. The environmental allowance shall be adjusted from time to time in accordance with any State Wage Case increase covering work-related allowances where that State Wage Case increase applies to the Public Hospital Nurses' (State) Award. In recognition of the high level of casual work performed, the annual amount should be paid in periodic wages (rather than as an annual lump sum). Such payment should be considered for all purposes as salary and adjusted accordingly.
Following those proceedings, on 26 June 2002, the NSW Department of Health ("Department") wrote to the Health and Research Employees' Association ("HREA"), the predecessor of the HSU, in the following terms: The Corrections Health Service (CHS) has raised with the Department the issue of payment of the environmental allowance at CHS to non-nursing staff. As you may be aware, the current environmental allowance is paid to certain health workers at CHS who have substantial, 'regular and direct contact with inmates'. Currently there are a number of arrangements in place to pay this allowance for staff covered by your Association. Of recent times the environmental allowance for nurses at CHS has been considered by the Industrial Relations Commission of NSW. The Commission has determined that the environment allowance at CHS is an amount of $1854.00 per annum and is to be paid for all purposes, including shift penalties and overtime. In addition it was determined that the allowance would be adjusted by future State Wage Case decision. The Department has considered its position in relation to this matter and considers it appropriate that the current arrangements and quantum for the environmental allowance paid to nurses should also apply to non-nursing staff who have substantial, 'regular and direct contact with inmates.' This means that the current environmental allowance of $1854 per annum for nurses will be paid for all purposes including shift penalties and overtime to non-nursing staff. It is proposed that the arrangement be effective from the first full pay period an (on) or after 1 July 2002 and that the allowance will be adjusted in the future by State Wage Case decisions consistent with the nursing decision. If this proposal meets with your concurrence, the Department will make appropriate arrangements to have a Determination made by the Health Administration Corporation, in order to implement these arrangements for non-nursing staff.
By correspondence dated 2 July 2002, the HREA accepted the Department's proposal. Shortly thereafter, the Determination, which is set out at paragraph 3 above, was made.
The Crown Employees (Psychologists) Award contains the following provision: 7. Environmental Allowance 7.1 Environmental Allowance Psychologists who have substantial regular and direct contact with offenders/clients in correctional centres operated by the Department of Justice - Corrective Services or Juvenile Justice Centres shall be paid the environmental allowance specified in Item 1 of Table 2, Environmental Allowance of Part B, Monetary rates. The allowance shall be paid under the following conditions: (a) the work location is totally within a Correctional or Juvenile Justice Centre to attract full payment; (b) there must be regular, direct and substantial contact with offenders/clients; (c) the allowance can be paid on a pro-rata basis if the contact is not on a full time basis, i.e. 2 - 3 days attracts 50 per cent, 4 - 5 days attracts 100 per cent; and (d) offender/client contact is generally in a "supervisory" capacity i.e. contact is for professional purposes. 7.2 The environmental allowance will increase in accordance with the Crown Employees (Public Sector - Salaries 2015) Award and any variation or replacement award.
Prior to 2006, this allowance was not payable to psychologists employed in Juvenile Justice Centres. However in 2006, in Crown Employees (Psychologists) Award ([2006] NSWIRComm 315) the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") sought to extend the payment of the environmental allowance, which was paid to psychologists employed in the Department of Corrective Services ("DCS"), to psychologists employed in the Department of Juvenile Justice ("DJJ"). In its decision, a Full Bench of the Commission (Sams DP, Boland J, McLeay C) stated as follows: Environmental allowance 71 It was submitted by the PSA that an environmental allowance was justified in order to properly compensate psychologists for the special skills required and special disabilities suffered when working in substantial and regular contact with clients in custodial or institutional settings. Currently, psychologists employed by DCS receive an environmental allowance in relation to their employment in a custodial setting. The proposed new allowance would absorb the environmental allowance currently paid to psychologists employed by DCS. 72 It was the evidence of Ms Booby that the allowance is applied in correctional centres as follows: (a) the work location is totally within a correctional centre to attract full payment; (b) there must be regular, direct and substantial contact with inmates; (c) the allowance can be paid on a pro-rata basis if the contact is not on a full time basis - 2-3 days attracts 50%, 4-5 days attracts 100%; (d) inmate contact is generally in a "supervisory" capacity. 73 The environmental allowance in DCS was first established by the then Public Employment Industrial Relations Authority in 1990 for non-custodial staff who "satisfied the agreed criteria of substantial, regular and direct contact with prisoners". However, the quantum of the allowance was established at a rate "consistent with that paid to Medical, Nursing and Non-Nursing Staff at the Prison Medical Service", indicating the pre-existence of an environment allowance paid to staff at the Prison Medical Service. Thus, Mr Hatcher submitted, the existence of special work requirements and disabilities applying to professionals and other occupational groups working with prisoners has long been recognised. 74 Counsel for the PSA submitted that any distinction between DCS and DJJ was arbitrary and unjustifiable. As the inspections revealed, DJJ Centres involve psychologists working in a custodial setting in the same way that psychologists do in DCS correctional centres. Leaving aside age, the criminal profile of DJJ inmates is similar to that of DCS inmates. Mr Hatcher referred to the evidence of Mr Muir, the Acting Director-General of DJJ, who confirmed the DJJ inmate population housed in the eight juvenile justice centres that it operates, included persons convicted of a whole range of offences involving violence, murder and serious sex offences. 75 It was further submitted there was nothing novel about the payment of an environmental allowance to non-custodial employees working in DJJ centres on the same basis as in DCS correctional centres, for example: (a) Nurses employed by Justice Health who work in juvenile justice centres as well as in correctional centres receive under the Public Health System Nurses' and Midwives' (State) Award an environmental allowance which is currently $2,110 per annum. (b) Part-time casual TAFE teachers who teach within a correctional centre are, under the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2006 [2006] NSWIRComm 1012, entitled to be paid an environmental allowance which is currently $1.36 per hour for working in a correctional centre. This allowance is in fact paid to part-time casual TAFE teachers who work in juvenile justice centres as well as those who work in DCS correctional centres. (c) Teachers who work in schools within juvenile justice centres receive an annual allowance of $1,796, which is the allowance payable to teachers of classes with "students of disabilities" under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2006 and Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award 2004 [2006] NSWIRComm 1011. Principals of these schools receive an allowance of $2,342 as the schools are classified as a "school for specific purposes" for the purposes of the award. 76 Reference was also made to the evidence of Ms Ailsa Robinson, a Psychologist employed at Cobham Juvenile Justice Centre, and Mr Steve Garlick, the Co-Coordinator Special Services for DJJ's Northern Region about the client population in juvenile justice centres. Their evidence included the following: (a) Ms Robinson's clients are generally males aged 14 to 18 years who have committed offences including theft, car theft, robbery, armed robbery, assault, sexual assault, drug offences and weapon offences. Presenting problems of the Cobham clients which include drug withdrawal and mental illness, including depression, anxiety and psychosis. She said, "they experience adjustment difficulties, suicide ideation and self harm behaviour, anger management problems, extreme stress, grief and loss, trauma, developmental delays, family violence and low level of intelligence and education. They suffer from poor social skills and dysfunctional family relationships. They have poor coping skills and poor problem solving abilities." Ms Robinson is presented with situations involving young people who are actively engaging in self-harm behaviour and suicide attempts. For example, a young person may continually cut their arms or tie "clothing" around their neck. In the course of a normal day's work she is required to respond to crisis situations throughout the day. As an example a young person may become highly agitated in response to a court outcome. Ms Robinson spends an average of between one to five hours face to face with clients per day, or about 50 - 60 hours per month (Robinson). (b) "Sometimes there are risks associated speaking with the young people as they are unknown and their behaviour may be unpredictable. For example, we may ask something or bring something up for the young person that is extremely provocative and they may become violent. At times they are verbally abusive towards us. In the custodial environment, psychologists approach the young people with limited knowledge regarding their situation, as the young people are isolated from their family and community. Psychologists often have to deal with the manipulative behaviours of young people" (Robinson). (c) "The population in detention centres is changing because of diversion of offenders to youth justice conferencing or circle sentencing. Inmates are increasingly more difficult because of the harder-edge crimes they have committed or they are repeat offenders or high recidivist offenders." (Garlick). (d) Juvenile justice centres have detained inmates with mental health problems who suffer from depression or learning disorders. He says they may have psychotic episodes. They can be violent and aggressive. The Department has legislative provisions to allow psychologists to supervise young people with mental health disorders and developmental disabilities. However, there are no special facilities at Acmena Juvenile Detention Centre. There is only one nurse and one Centre Psychologist. The young people are often a danger to others and to themselves. There are no mental health professionals there nor does Justice Health provide mental health services (Garlick). 77 In relation to the claim for the payment of the environmental allowance for psychologists employed at DJJ, the DPE submitted that no other counsellors employed by DJJ were paid that allowance, even though they also have regular client contact. Further, that whilst it was conceded that the inspections revealed that Juvenile Justice Centres involve psychologists working in a custodial setting in the same way that psychologists do in DCS correctional centres, it was submitted there was still a question of degree when it came to a comparison of the working environment at Long Bay, in particular, and Cobham. 78 There was insufficient evidence before us regarding conditions in institutions operated by DADHC and whether payment of an environmental allowance was warranted at those institutions. But having regard to the evidence, and what the Full Bench saw on the inspections, we consider there is no basis at all for making any distinction between the environment experienced by psychologists at DCS correctional centres and that experienced at Juvenile Justice Centres operated by DJJ. 79 We acknowledge the concern voiced by the DPE about flow on if we were to award an environmental allowance to psychologists employed in Juvenile Justice Centres. However, the present inequity is so obvious that it cannot be ignored. The inequity is illustrated by the fact that prior to DCS taking over responsibility for the Kariong Juvenile Justice Centre from DJJ, no allowance was payable to psychologists employed there. Once DCS assumed responsibility, the allowance became payable notwithstanding that the environment or work of psychologists at Kariong did not change. 80 We propose to grant the claim in respect of Juvenile Justice Centres. Any claim by other classes of employees seeking flow on, if that were to occur, would need to be considered on its merits in accordance with the relevant wage fixing principles.
What emerges from this history is the following: 1. Nurses working in a prison or correctional centre environment have, for many years, been paid and environmental allowance in respect of the disabilities attaching to working in such an environment. 2. Over time, payment of an environmental allowance has been extended to certain non-nursing classifications working in the same or similar environment. 3. In the case of psychologists, the payment of the allowance, or part thereof, is not dependent upon contact with inmates occurring on every working day. 4. Since 2002, the allowance has been payable to non-nursing staff working in correctional centres "who have substantial, regular and direct contact with inmates".

History of current dispute

On 29 July 2014, the Acting Chief Executive of the Network wrote to the Secretary of the HSU in the following terms: Re: Application of Payment of Environmental Allowance I refer to ongoing discussions between your officers and Ms Judith Neville, Director Workforce, concerning the application of payment of the environmental allowance to non-nursing staff at Justice Health & Forensic Mental Health Network (JH&FMHN). These discussions arose following a request by the Clinical Support Workers (CSW) from the Connections team for payment of this allowance. As you are aware, in 2002, NSW Health determined payment of the environmental allowance to non-nursing staff who had substantial, regular and direct contact with inmates. However, resolution of the above issues was delayed due to no clear definition of substantial, regular and direct contact with inmates. It is the view of JH&FMHN that staff, managers and Health Services Union (HSU) require a clear and transparent definition to understand how the environmental allowance will be approved to be paid for non-nursing positions. Advice received from Workplace Relations, Ministry of Health, recommended 75% for the substantial requirement to be met. On that basis, JH&FMHN has adopted the following definition which will be conveyed to staff, managers and HSU: - Substantial: means > 75% of the role involves contact with patients within the custodial/forensic environment, not community setting; - Regular: dealing with inmates/patients daily which is a frequent, recurring and predictable pattern; - Direct: contact with patients without other staff intervening or doing the work. A review of current non-nursing staff currently receiving the environmental allowance identified 14 staff who should not be receiving the allowance based on the above definition. These staff will be advised of the above definition and, as their work does not meet the requirement of the definition, the payment of the environmental allowance to them will cease on 30 June 2015 or at the end of their contract, whichever comes sooner. JH&FMHN has no intention to seek retrospective recovery of the allowance from these current staff. Clinical Support Workers The HSU dispute regarding the CSWs arose as they believe they meet the requirements of substantial but there was no definition. Initial discussions between Direct Workforce and the HSU suggested 50% could be the limit but subsequent advice from Workplace Relations, Ministry of Health, recommended 75%. ……………………. The CSWs data reflecting their duties was split between Correctional Centre and Community: - 29 total tasks were recorded for Correctional and 25 total tasks were recorded for Community; - only 2 out of the 29 tasks were considered dealing with directly patients/inmates in the Correctional Centre environment; - 3 out of the 25 tasks were considered dealing with a patient in the community environment. Overall outcome is that the CSWs are not entitled to the environmental allowance.
On 20 May 2015, the Secretary of the HSU wrote to the Director Workforce of the Network as follows: In July 2002 the then Health Administration Corporation determined that the environmental allowance paid to nurses at Corrections Health Service was to apply on the same basis to non-nursing staff who have substantial, regular and direct contact with inmates. The question of how the allowance is applied and who is eligible to receive the allowance has been a matter of contention for some time. In July 2014 JH&FMHN defined the terms substantial, regular and direct (TRIM Ref: DG39135/14) in an attempt to resolve the contention. The definition of substantial that JH&FMHN has applied means: equal to or greater than 75% of the role involves contact with patients within the custodial/forensic environment, not community setting. The application of this definition of substantial is not accepted by the HSU. Associated with this allowance is JH&FMHN's advice (TRIM Ref: DG39135/14) that the environmental allowance will no longer be paid to a number of non-nursing staff beyond 30 June 2015. To assist in resolving the contention and to help JH&FMHN workers plan for the future, we request some further information. Further information 1. Can you provide the HSU with a copy of the Ministry of Health's advice as it relates to the definition of substantial? 2. Can you provide the HSU with the JH&FMHN's rationale for not making payment of the environmental allowance in a "community setting"? 3. Can you confirm who is currently receiving the environmental allowance and will cease having the allowance paid beyond 30 June 2015? 4. Can you confirm the dollar value of the allowance and how it is paid to non-nursing staff receiving the environmental allowance?
On 19 June 2015, the Director Workforce of the Network responded to the questions posed by the HSU as follows: 1. Can you provide the HSU with a copy of the Ministry of Health's advice? The advice was provided verbally only. 2. Can you provide HSU with the rationale for not making payment of the environmental allowance in the "community setting"? The NSW Health Determination of 2002 states the payment of the environmental allowance is made to non-nursing staff who have substantial, regular and direct contact with inmates. Once inmates are released from prison, they are no longer inmates but members of the community. 3. Can you confirm who is receiving the environmental allowance and who will cease receiving the allowance from 30 June 2015? There are approximately 220 non-nursing staff who currently receive the environmental allowance. I expect approximately 15 will lose the allowance. Several of these are nurses who have been appointed to non-nursing positions that do not have substantial, regular and direct contact with inmates and paid as health managers but the environmental allowance was not ceased. 4. Can you confirm the dollar value of the allowance and how it is said to non-nursing staff receiving the environmental allowance? The current rate is $2727 per annum but it is considered salary for all purposes (including overtime and penalties). As a consequence, the allowance are rolled into the hourly pay rate. It is also now linked to general salary movements in the awards.
On 29 July 2015 the Secretary of the HSU again wrote to the Director Workforce of the Network again taking issue with the Network's definition of "substantial" and "regular". The HSU invoked the award dispute resolution procedures and served the Network with a draft dispute notice. The HSU proposed a meeting with the Network to resolve the dispute and nominated a list of 11 employees to whom the allowance, according to the HSU, should be paid. Some of those nominated employees ultimately gave evidence in these proceedings.
A meeting occurred between the parties on 24 August 2015. Following that meeting, the Deputy Director, Workplace Relations, NSW Health, wrote to the Secretary of the HSU on 8 September 2015 in the following terms: It is noted that the parties agree on the interpretation of all but one descriptor for eligibility of the Allowance as set out in the Corrections Health Service Payment of Environmental Allowance to Non-Nursing Staff determination dated July 2002. I understand that the descriptor in contention is the word 'substantial' in the context of support workers requiring substantial, regular and direct contact with inmates to be eligible to receive the Allowance. In this particular context, the Ministry interprets the word substantial to mean more than half. As the Allowance is set out on a per annum basis, it is the Ministry's position that support workers at JH&FMHN should be eligible to receive the Allowance where direct contact is required with inmates for more than 50 per cent of working hours on a regular basis over the course of 52 weeks, as adjusted for approved leave.
Following the filing of the dispute notification by the HSU on 24 February 2016, a series of conciliation conferences was convened by Tabbaa C. During that process of conciliation, the parties agreed that a 'time and motion' study would be conducted of the work of CSWs. To that end, on 29 July 2016, the following joint communication was distributed to CSWs employed in the Network from the HSU's Manager, Industrial Division and the Network's Acting Director Workforce. On Wednesday 27 July 2016, JH&FMHN and the HSU (the Parties) again attended the NSW IRC (the Commission), in relation to proceeding's in front of the Commission regarding the application of the Environmental Allowance and how that might be applied to Clinical Support Workers (CSWs). Please note this matter is presently before the Commission and no decision has been made by the Commission nor has conciliation been exhausted. To progress this matter it was agreed between the Parties, in the presence of the Commission, that CSWs will be requested to participate in a time & motion study for a period of 6 weeks commencing Monday 1 August 2016. Hence, starting on Monday 1 August and concluding at the end of the CSWs normal shift on Friday 9 September 2016, CSWs are required to maintain a daily diary for the 6 week period that identifies the time they are providing direct face-to-face service provision to a patient whilst that individual is physically in a Correctional Centre, i.e. Gaol. CSWs are not required to record casual contact with patients. The daily diary information the CSW would record would be the commencement of the direct service provision contact with the patient, i.e. this would be a formal meeting/assessment. At the conclusion of that direct service provision contact the CSW would note that finish time, i.e. 1pm commence - 2pm conclude. CSW's are not required to record time they enter or exit a Correctional Centre, i.e. actual Gaol, or time they may spend with a patient outside of the Correctional Centre (actual Gaol) setting, i.e. arranging support services, speaking with the patient on the phone, transporting the patient to appointments, etc. Following the 6 week time & motion study period the Parties will review the information provided by the CSW's, seek clarity from the CSW of relevant data based on any inconsistent or abnormal entries, and report back to the Commission in October of this year. The Parties are hopeful that by going through this process they will be in a position to resolve this matter through conciliation, or a decision from the Commission based on facts, evidence and data. At the conclusion of the 6 week time & motion period could you please ensure you provide your completed diary to the HSU and also Peter Stein (JH&FMHN). Please ensure your name is clearly indicated on your diary.
Seven CSWs participated in the 'time & motion study'. Four of these are full time employees, and the other three work part time. At the end of the 6 week period the data was collected and collated in a document entitled 'Time and Motion Analysis'. That analysis revealed that the percentage of the working week spent in direct contact with patients in a correctional centre setting varied from 5% to 28%. On 28 September 2016, Mr Stein advised the HSU as follows: Based on the attached analysis, we believe whilst a CSW can demonstrate the direct contact with a patient in a CC, and in some instances a level of regularity of that contact, we cannot see evidence to support a claim for this being a substantial component of their role.
Ultimately, the dispute remained unresolved and was allocated to me for arbitration.

The legislative framework

These are dispute proceedings. The dispute has moved from the conciliation phase into the arbitration phase. Section 136 of the Act is in the following terms: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Note : Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126).
Both parties acknowledge that arbitration of this dispute will involve the Commission in exercising its powers of interpretation, as set out in section 175 of the Act, which is in the following terms: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).
It is common ground that the Determination is an "instrument" for the purposes of section 175 of the Act.

Applicable law - principles of construction

The correct approach to the exercise of the Commission's power to interpret the provisions of an industrial instrument was recently discussed by Seymour C in Health Services Union New South Wales and Ambulance Service of New South Wales ([2017] NSWIRComm 1057). I propose to adopt this approach in the present matter, as set out in the following passages from the Commissioner's decision: 10. The Commission has powers to provide an interpretation of a clause in an award pursuant to s.175 if that is a step necessary for the purpose of exercising its powers under s.136. The powers of the Commission under s.175 do not stand alone, permitting applications for declaratory relief simpliciter. Rather they may be exercised 'for the purpose of exercising [the Commission's] functions in a matter before it', in this case the powers set out in s.136 of the Act: Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67]; Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 at [57] - [58]. 11. The relevant principles applied by the Commission to award interpretation are well settled. The Full Bench of the Commission in Bryce v Apperley (1998) 82 IR 448 at 452 observed as follows: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said 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: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light. 12. In New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55, Boland J endorsed the principles applied in Bryce as follows: [9] In approaching the task of interpreting an award the starting point is the actual words of the award itself and their plain, ordinary English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1998) 82 IR 448 at 452. If the language of the award provision is clear and unambiguous and is consistent and harmonious with the other provisions of the award and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning even if it leads to a result that may seem inconvenient or unjust (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)(1981) 147 CLR 297 at 305 per Gibbs CJ). Although he was concerned with statutory provisions, the observations of the Chief Justice apply with equal force to an award: Bryce v Apperley at 453. However, as French J observed in City of Wanneroo, "That is not to say the words (of an award) must be interpreted in a vacuum divorced from industrial realities." French J referred to the decision of Street J in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 where his Honour said: [I]n 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. 13. The principles in Bryce were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales (2004) 135 IR 56 where the Commission held: [43] The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used. 14. NSW Ambulance referred to two decisions in support of its primary submission that the meaning of cl. 23(b)(ii) can be discerned from the text of cl. 23 read as a whole. Polan v Goulburn Valley Health [2016] FCA 440 was cited as articulating the general principles of interpretation applicable to industrial instruments: [32] Like other instruments creating normative rules, such as statutes and regulations, industrial instruments are to be construed in accordance with their language (or text), taking into account their context in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument: see generally Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573; Certain Lloyd's Underwriters v Cross [2012] HCA 56; 293 ALR 412 at [24]-[25]. In the latter case, French CJ and Hayne J said at [25]: Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. 15. Reliance was also placed on Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158, where a Full Bench of the Commission confirmed the necessity of undertaking a purposive approach in construing awards, consistent with s. 33 of the Interpretation Act 1987 (NSW): [46] Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: 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. [47] Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 16. The HSU's primary submission was also that the Commission must first give the words of the Award their ordinary meaning, applying a textual analysis of the sub-clauses, the clause overall and the Award overall. They contended that, adopting that approach, the Commission cannot be satisfied any ambiguity exists on the face of the Award. The HSU relied upon the decision of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 at [101] to [144], where Walton P summarised the correct approach as follows: [143] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo v AMACSU at [57]: "[57] … while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language.' "

The HSU's evidence

CSWs are engaged in what was described as the 'Connections Program'. In a document entitled 'Connections Program Operations Manual' published by the Network in April 2015, the background to the program was described in the following terms: From a health perspective, Justice Health & Forensic Mental Health Network had become increasingly concerned about the high post release mortality of former patients. Research showed that former NSW prisoners have an increased risk of mortality post release. Karaminia et al (2007) found that of 85,203 adults imprisoned in NSW between 1988 and 2002, 5137 had died post-release. Men were almost four times (SMR 3.7) and women almost eight times (SMR 7.8) likely to die than the general population. A large proportion of deaths were due to mental and behavioural disorders, which included a drug related deaths. 31% of men and 47% of women died from drug related causes, and these deaths accounted for one quarter (26%) of all drug related deaths in NSW. It has also previously been well documented that the general health of prisoners is poor compared with the general population. Prisoners have higher rates of mental health problems than the general community. Butler and Allnutt (2003) found that 74% of inmates had "any" psychiatric disorder in the last 12 months, compared with 22% in the general population. The twelve-month prevalence of psychosis in NSW inmates was thirty times higher than in the Australian community. One of the recommendations made by the authors was the need for coordinated pre-release planning for this population. In September 2007, the Connections Program commenced operations throughout NSW. Connections was designed to work with prisoners with a history of problematic drug use. At assessment, patients are asked about the problems they previously faced when returning to the community. The hope is that by addressing these problems participants will have the foundations in place to make positive lifestyle changes.
The position description for a Clinical Support Worker contains the following: Responsible To: Assess the individual's post release needs prior to release & develop a comprehensive post release care plan. Provide co-ordination between correctional centre care and community based health & welfare services in order to support clients to stay in the community for longer, and optimise health outcomes. Ensure that clients on an Opioid Substitution Program (OSP) have appropriate arrangements in place to continue treatment in the community post release and that their care is taken over by the external service provider in a timely manner. Responsible For: Ensure that where participants have other ongoing health related needs, that these are identified and supported appropriately pre and post release. Where there are problems with the client having difficulty initially engaging with the external service provider, the CSW will assertively assist and advocate for the client in the engagement process. Purpose Of Position: The CSW is responsible for following up on referrals received & ensuring that: Key Accountabilities: At least one month (where practicable) prior to a patients earliest possible release date the CSW will arrange an interview, explaining the purpose of the program & the support it can provide to the patient pre and post release. This will include the patient signing consent to participate on the program where he/she is found suitable for participation. The patient's current medical records are reviewed to ensure that all identified & active health concerns have an appropriate post release management plan in place. Where this is not available, the CSW will liaise with the Health Centre Manager to ensure that any outstanding patient issues are reviewed and addressed pre-release. A comprehensive post release care plan developed with the patient that addresses their individual needs as per the Connections Program Operations Manual. A completed copy of the plan is then provided to the patient. The post release care plan and assessment documentation where appropriate is provided to the patient's General Practitioner/external service provider as per the Connections Program Operations Manual. There is liaison where appropriate with any relevant health and welfare service provider involved in the patient's care, to ensure the smooth transition of health and welfare care post release occurs. If there are problems with the patient having difficulty initially engaging with an external service provider, the CSW will assertively assist and advocate for the patient in the engagement process. Assertively follow up patients in the community during their time on the Connections Program post release as per the Connections Operations Manual. Ensure that patients are exited from the program in an appropriate & timely manner as per the Connections Operations Manual. Maintaining clear & concise medical records for each participant on the program & ensuring that these record entries are transferred to the Joint Medical Records when the client is exited from the program, in a timely & appropriate manner.
In the proceedings evidence was led from six CSWs, Lindsay Brownlie, Carla Armstead, Susan Quinn, Corinne Marabani, Crellyn Collison and Jennifer Wilson.
Each of the HSU witnesses gave evidence about the role that she performs in the Justice Health system and, in particular, the face-to-face contact which she has with inmates in the correctional centre environment, which, according to the evidence, is an integral part of that role. They generally referred to the participants on the Connections Program as "patients".

Lindsay Brownlie

Ms Brownlie is employed as a part time CSW in the Justice Health Clinic which is situated inside the South Coast Correctional Centre at Nowra. She works a five day fortnight of 3 x 8 hour shifts one week and 2 x 8 hour shifts on alternate weeks.
One of the major aspects of Ms Brownlie's role is to conduct patient assessments to gain information relating to the patient's past and current mental health, medical, drug and alcohol and general history to assist her in creating a transitional plan for the patient post-release. She endeavours to get the assessment completed in one sitting, however, that may not be viable depending on the individual.
The patient assessment involves the completion of a 16 page standard form which comprises a comprehensive assessment of the patient's health and other needs in the community in areas such as: 1. employment; 2. finances; 3. education; 4. drug and alcohol; 5. mental health; 6. accommodation; 7. offending behaviour; 8. identification; 9. previous releases from gaol; 10. general health and wellbeing; 11. domestic violence (for female patients).
Ms Brownlie regularly interviews patients with mental health issues as well as some who have been in the centre for long time. In such cases, she may have to schedule a further assessment with the patient to gather all the essential information. The interviews take place primarily in one of the interview rooms within the clinic, but can also occur within the segregation unit, at the inmate's work location, in the protection unit or in lockdown.
Ms Brownlie also gave evidence about regular casual contact she has with inmates when she is moving around the correctional centre.
Ms Brownlie provided her work diary for the six week 'time & motion study'. The following notation relating to Ms Brownlie appeared in the 'Time and Motion Analysis' under the heading 'REGULAR: Any Patterns Noted': Saw patients direct in a CC 4 out of 5 Thursday's worked and 4 out of 5 Friday's worked.
The analysis disclosed that Ms Brownlie spent 13% of her working time in direct contact with patients in the correctional centre setting. In relation to this aspect of the analysis, Ms Brownlie gave the following evidence: 54. I was asked to complete a time and motion study by my Union, the Health Services Union to assist in my claim for the environmental allowance. I understood, I was to record only the face to face contact I had with my patients when conducting the initial assessments and treatment plans. 55. I did not record any of my time spent walking around through the gaol to meet with patients. 56. Furthermore, during the six-week trial period, there were approximately two lockdowns in the gaol, which impacted on my ability to meet with patients in that time. 57. During the six-week period, I was also working with a patient that had been incarcerated for 23 years. The work in relation to his release on file work and community- related work also impacted on my ability to conduct assessments on other patients.

Carla Armstead

Ms Armstead is employed as a part time CSW in the clinic which is inside the Goulburn Correctional Centre. She works a five day fortnight of 3 x 8 hour shifts one week and 2 x 8 hour shifts on alternate weeks.
Ms Armstead gave the following evidence: 9. A large portion of my role is to initially assess patients who have been referred to the Connections Program. The initial assessment can take up to two hours to complete depending on the patient and how comfortable and open they may feel. 10. I try to conduct the majority of the assessments in the clinic which is inside Goulburn Correctional Centre. This requires me to put aside allocated days per fortnight - depending on the number of patients I have - to work in the correctional centre. 11. My allocated days in the correctional centre can vary from two to three days a fortnight depending on the number of patients I have to assess. 12. Following the initial assessment, I start making referrals, appointments and any other relevant arrangements for their transition back into the community. This is done for all my patients on my allocated days in the office or in between patients while in the clinic. 13. Once I have completed the transitional plan, I am required to arrange another appointment with them in order to review it. This can take anywhere between one and two hours depending on the patient and if there are any changes that may need to be made. 14. In addition to the review, I may need to see the patient a significant number of times before their release date to check referrals and/or gain new consent forms. These subsequent meetings can take anywhere from fifteen minutes to one hour not including the time spent walking to the different areas of the correctional facility. 15. Furthermore, as part of my employment, I assist inmates with their dosage post release regardless if they become a patient of the Connections program, which requires face to face consultation with the inmate and any subsequent follow up appointments. 16. During the first few years with the Connections program, I was required to see inmates for much broader issues, such as assisting with their application for release which could take anywhere up to three hours. 17. An integral part of my role as a CSW, is to build rapport with inmates and patients so they feel comfortable enough to provide me with what I would consider, in depth and personal information. This information is required in order to assist them in their safe transition into the community. This requires a lot of face to face contact with them to be able to build on the relationship.
The work diaries which Ms Armstead provided as part of the 'time & motion study' demonstrated that she spent 17% of her work time in face-to-face contact with inmates in the correctional centre setting during the six week period of the study. The 'Time and Motion Analysis' did not note any pattern of regularity of Ms Armstead's contact with patients in the correctional centre setting.
With respect to the 'time & motion study', Ms Armstead gave the following evidence: 57. As part of the CSW's claim for the environmental allowance, I was directed to complete a time in motion study. Based on the information I received from my Union, The Health Services Union, I understood at the time I was to record was only the contact with patients when conducting the initial assessment. 58. I did not record any time in the gaol or any contact I had with the inmates on my way to and from patients. 59. During the six-week study, Telstra commenced the installations of the NBN in my community-based office. Due to various issues with this installation, I was required to be at the office to allow repair work to take place. 60. This resulted in me being unable to attend the gaol to complete any assessments of patients for a period of two days. 62. Moreover, during this period my work car broke down, which impacted my ability to attend the gaol on one of my allocated days. 63. Furthermore, during this period, Goulburn Correctional Centre had a number of incidents, which meant the gaol was in lockdown and access to see patients was hampered. I would estimate this occurred at least three times during the six - week time and motion study.

Susan Quinn

Ms Quinn is employed as a part time CSW at the South Coast Correctional Centre, Nowra. She works a five day fortnight of 2 x 8 hour shifts one week and 3 x 8 hour shifts on alternate weeks.
Ms Quinn gave evidence of a similar nature to that given by the other HSU witnesses. In relation to the conducting of patient assessments, Ms Quinn stated: 12. Assessments are conducted in person with the patient and can take anywhere up to one hour to complete. However, there are a number of factors that can stop me from finalising the full assessment in one sitting. These include: (a) if they are in protection; (b) if they are in segregation; (c) if they are in the laundry or other work where they are not permitted to leave; (d) if they are working outside of the correctional facility; (e) if the centre is in lockdown; and (f) the willingness of security staff. 13. If the assessment cannot be completed in the allocated time, more time would need to be set aside. 14. My preference is to conduct any assessments within the clinic in the allocated interview rooms. However, as noted earlier, if a patient is unable to attend the clinic, I may be required to conduct the interviews in various areas of the correctional centre. 15. Following the initial assessment, I frequently need to follow up with the patient about any changes that may occur to their post release plans. Furthermore, any changes to their post release plans could mean I would need to obtain new signed consent forms from the patient. Clinic 16. As noted above, my office is located within the clinic which is situated inside the correctional centre. In order to access my office, I must go through security including, IRS fingerprint scanning, X-Ray machines and numerous locked doors. 17. Once through the initial security check, I have to walk through an open outdoor area where inmates may be working, to get to the first locked door. At each locked door there is glassed offices with correctional officers inside to let you through . 18. There are five securely locked doors I need to walk through to get to the clinic. Each area between the doors are walkways that are approximately two-metres-wide and inmates walk freely throughout these areas. It can take anywhere between five and fifteen minutes to get to clinic depending on the wait time at each door. 19. When it is time to see a patient, the corrections officer on post in the clinic will call the patient, who makes their way to the clinic, generally unescorted through the gaol grounds. 20. The patient is to wait in the waiting rooms until I collect them. The waiting rooms are usually full of other inmates who are waiting for their appointments with other areas of the clinic, such as: a) Dental appointments; b) Mental health appointments; and c) General health appointments. 21. The inmates in the clinic waiting room can be highly agitated from waiting for their appointments and I have witnessed violent interactions between the inmates in the area. 22. There are six interview rooms in total which are located off the main waiting room area. There are only two rooms which are transparent glass and in direct side of the two officers in the clinic. 23. There are four other interview rooms in which I can conduct an interview with a patient which are not transparent and not in the direct sight of the officers on duty. There is a small window on the door of the remaining four interview rooms, which an officer would need to be in front of to see what is happening in side. There are no cameras in any of the interview rooms.
Ms Quinn provided six weeks of her work diary for the 'time & motion study'. During this period she spent 11% of her work time in direct contact with patients in a correctional centre setting. In relation to the regularity of Ms Quinn's contact with patients, the following notation appeared in the 'Time and Motion Analysis': Saw patients direct in a CC 5 out of the 6 Monday's and 3 out of the 6 Tuesday's.
With respect to the 'time & motion study', Ms Quinn gave the following evidence: 41. I was asked to complete a time and motion study by my Union, the Health Services Union to assist in my claim for the environmental allowance. I understood I was to record only the direct face to face time with a patient during the initial assessment. 42. I did not record any time walking from the clinic to the various sectors or any contact and communications I had with inmates in the open areas before and after my assessments with a patient. 43. During the six-week trial period, I had a high level of patients in the community which required assistance. This impacted on the amount of time spent in the gaol and in contact with my patients in the various sectors. 44. For the reasons above, I do not believe the results from the time and motion study correctly reflects the significant amount of time spent speaking with inmates and patients.

Corinne Marabani

Ms Marabani is a full time CSW currently responsible for the Windsor complex, which is made up of Dillwynia and John Morony Correctional Centres and the Outer Metropolitan Maintenance Program. However, depending on staffing requirements, she may be required to attend other facilities.
Ms Marabani gave the following evidence: 9. My understanding is that the aim of the Connections Program is to make patients transition back into the community easier and to reduce the death rates of inmates after leaving custody from drug and alcohol use. 10. In order to achieve this, CSW's are required to assess each patient to gather a holistic picture of their extensive history, including but not limited to: a. Family history; b. Education history; c. Employment history; d. Literacy levels; e. Domestic violence; and f. Drug and alcohol use. 11. It is very difficult to determine exactly how long assessments may take and can vary depending on the individual's needs. 12. Because of the nature of the program, I assist inmates who have had drug and alcohol use problems. This can often mean the inmates have mental health and physical health issues which can make it difficult to communicate effectively. 13. Inmates health can be quite complex and if I did not do a thorough assessment the individuals needs would not be met. This could result in a decline in their health following their release into the community. 14. As part of the assessment process, I explain to the inmate exactly what the Connections program is and how it can assist them and then the inmate has to decide if they would like to take part in the program will not. 15. If the inmate agrees to participate in the program, I have to conduct a full psychosocial assessment. This can take anywhere between one and two hours depending on the individual's needs. 16. If the inmate decides not to participate in the program and is currently on medication, I am still required to organise their medication post release. As a CSW, I do not have authority to speak directly with external agencies, which means I am required to facilitate phone calls with the inmate to arrange this. 17. This process can take anywhere between 15 and 45 minutes depending on the availability of the third parties. 18. Moreover, I regularly have to schedule further meetings with the inmate if I cannot finalise their transitional plan at that time.
The 'Time and Motion Analysis' records that Ms Marabani spent 28% of her working time in direct contact with patients in a correctional centre. The analysis contained the following notation: Saw patients direct in a CC 5 out of the 6 Monday's; 5 out of the 6 Thursday's and every Friday.

Crellyn Collison

Ms Collison is a full time CSW. Her work is focussed on Cessnock Correctional Centre and the Hunter region. For approximately the first six years of her employment, from August 2007, she was based in an office within the Multipurpose Centre at Cessnock Correctional Centre, which is located within the grounds of the gaol and is used by inmates to access a range of services. Ms Collison subsequently moved to an office that was located within the grounds of Cessnock Correctional Centre but outside the grounds of the gaol itself. She is currently based in an office in the community and travels to Cessnock Correctional Centre for her work with inmates.
Ms Collison described her role in the following terms: 7. In my role, I am responsible for assisting patients, who meet the Connections Program's eligibility criteria, in their transition post release. My duties include: a) Assessing patients in a range of areas including their health and drug and alcohol needs post release; b) Arranging Opioid Substitution Treatment for release; c) Organising patient health plans post release; d) Assisting with patient accommodation and transport post release; e) Assisting patients to link with support services in the community. 8. The contact that I have with inmates, including patients, includes: a) Advising inmates/potential patients about the Connections Program; b) Conducting assessments with patients to commence the program and plan for release; c) Ongoing engagement with patients who are part of the program; d) Discussing harm minimisation techniques with patients who decline to be part of the program and arranging OST dosing for them; e) Encountering other inmates, including past patients or potential patients, as I move within correctional facilities; and f) Attending "Expo" days. 9. While I generally do not feel unsafe at work, occasionally I have cause to be reminded that the environment within an all-male correctional centre is not a "normal" work environment. I have experienced the following unpleasant behaviours by inmates (rather than Connections patients, who are generally respectful): a) Hearing "cat meowing" noises as I walked past inmates; b) Small groups of inmate saying "Good Morning Miss" then joking and sniggering after I walked past; c) Hearing an inmate call out a suggestive comment (pertaining to me and his genitals) as I walked past a Wing; d) On one occasion, a small group of young inmates encircled me briefly as I left the MPC to walk out of the gaol; e) Hearing "simulated sex noises" directed at me. Assessing patients 10. To be eligible to be in the Connections Program, a patient must commence in the program while they are in the Correctional Centre. All potential patients of the Connections Program must be assessed by a CSW. These assessments take place within the Correctional Centre. 11. The assessment entails meeting one-on-one with the patient and explaining the aims of the program and my role as a CSW. The assessment also entails gathering information from the patient that includes: a) their drug and alcohol use, including their drug use within the Correctional Centre; b) their mental health and mental health history; c) their general health and any diseases they have been diagnosed with, including blood borne virus status (Hep C, HIV); d) any medication they are on; e) any previous treatments they have had for drug and alcohol problems; f) their past work history; g) their income; h) their housing arrangements; and i) any issues that will affect their ability to access services that they need, including where they may have been banned from attending services. 12. The majority of my assessments take place at the Clinic within the Minimum Security gaol at Cessnock. The clinic is located inside the Correctional Facility. The access of inmates to the Clinic is controlled by Prison Officers. 13. Sometimes, there are no spare rooms at the Clinic so I will conduct assessments at the Multipurpose Centre . 14. On some occasions, I will attend a wing to locate a patient who is not answering the paging system e.g. to provide release plan paperwork. 15. Assessments are conducted alone, one-on-one with the patient. I conduct assessments with the door closed because of the private nature of the assessment, including discussion about specific health issues, or drug use prior to and during custody. I close the door so that other patients who may be moving about to access other areas do not hear what is being discussed and so that the patient being interviewed feels comfortable in discussing personal information. 16. These rooms have a see-through panel in the door and a Prison Officer will walk up and down and look in through the panel from time to time. 17. I also conduct assessments within the Maximum Security gaol. These are less common as it is generally less likely that these inmates have a pending release date. 18. Assessments in the Maximum Security gaol are conducted in interview rooms. A Prison Officer is in charge but is not physically in the room with me. I do not close the door and I wear a duress alarm. I am aware that, particularly in the Maximum Security gaol, patients have sometimes committed offences at the more serious end of the offending scale. 19. Conducting assessments, in either the Minimum or Maximum Security gaols can be challenging. There are many reasons why a patient may be anxious and I have had occasions where patients have become frustrated or agitated. Some such instances that I can recall where a patient demonstrated aggressive behaviour toward me include: a) A recent patient, who do not accept his mental health diagnosis and was not compliant with medication, became frustrated re. a discussion about same; b) A patient was banned from attending his local dosing facilities due to previous death threats made toward a pharmacist. The patient became annoyed, raised his voice at me and criticised my efforts because I was not able to organise his dosing at the pharmacy he requested; and c) A patient became agitated with me as I could not resolve his homelessness on release because he had been banned from the usual accommodation options in his local area. 20. I often conduct assessments in two visits. In my experience, this assists to build rapport with the patient and makes it more likely that they will engage with the program after their release. 21. All of my work for Justice Health and Forensic Mental Health Network relies on my ability to conduct in-depth assessments of patients while they are in the Correctional Facility. It is an essential aspect of my work. The work that I do with patients in the community cannot take place unless they have been assessed in the Correctional Facility first.
Ms Collison provided six weeks of her work diary for the 'time & motion study'. During this period she spent 7% of her work time in direct contact with patients in a correctional centre setting. In relation to the regularity of Ms Collison's contact with patients, the following notation appeared in the 'Time and Motion Analysis': Saw patients direct in CC 3 out of the 6 Monday's and 3 out of the 6 Friday's.

Jennifer Wilson

Ms Wilson is a full time CSW. As she looks after a number of correctional centres in the Sydney metropolitan area, her office is located outside of the correctional facilities in the Sydney Connections Program's office. She schedules two and a half days a week to work from the correctional centres to conduct initial assessments and follow up any patients within the correctional facility.
Ms Wilson gave the following evidence: 11. In order for a patient to qualify for the connections program post release, they must be assessed while in custody. 12. The initial assessment process touches on very complex areas of the patient's life and history and their input is required throughout the entirety of the process. This process includes: a. a sixteen page assessments; b. a Brief Treatment Outcome Measure - C; c. Physical Mental Health Summary - SF12; and d. a screen for domestic violence. 13. Depending on the patient's needs, the initial assessment process can take anywhere between one and three hours. This can be further exasperated if the patient has mental health issues or finds it difficult to discuss various questions in the survey. 14. Because the connections program is a drug and alcohol service, I am required to request a lot of information in relation to each question to further develop a care plan for the patient. 15. During the initial assessment process, I frequently have to facilitate various phone conversation with the patient and a third party. Depending on the on hold wait time, these phone calls can further extend the time of the initial assessments. 16. I try to schedule in at least four to five people a day when working within the correctional centres. 17. Last year between June 2015 and June 2016, I was referred 132 patients, and followed up 130 patients within the community. 18. Of the 132 patients I was referred, I assessed 102 as 30 inmates declined the connections program. Although I do not conduct an initial assessment for any inmate which declines the program, I am still required to meet with them and gather enough information to organise their Opioid S Treatment ("OST"). ……………………. Further interactions with inmates 20. I endeavour to conduct all of my initial assessments within the Clinics in each of the correctional facilities. To get to the clinic, I have to first walk through security which takes me into the main body of the gaol. 21. Once through security, I am regularly approached by inmates who walk freely throughout the area. The inmates generally want to know who I am and what I do or they might be patient who is wanting to know where the process of their plan is up to. 22. The inmates are often waiting for me when I arrive as they know it is my allocated day in their correctional centre. 23. The interactions with the inmates can go anywhere between five and fifteen minutes, depending on what the inmate is enquiring about. I may need to take down their details to check to see if they are in our system or I might need to give them information on the connections program and how it can help them. 24. There are not usually any corrections officers in this area and the closest officers would be in the officer's pod which is in a secured officers surrounded by secure glass. 25. I do not have a duress alarm at any stage while in the correctional facilities. 26. The clinics are accessible to inmates who can come and go as they please. When in the clinics I spend my time either assessing patients or walking throughout the clinic where inmates will often approach to gather information about the connections program.
Ms Wilson provided six weeks of her work diary for the 'time & motion study'. During this period she spent 15% of her work time in direct contact with patients in a correctional centre setting. In relation to the regularity of Ms Wilson's contact with patients, the following notation appeared in the 'Time and Motion Analysis': Saw patients direct in a CC Every Friday worked and 4 out of the 6 Thursday's.
In relation to her participation in the 'time & motion study', Ms Wilson gave the following evidence: 33. As part of my claim for the environmental allowance, I was asked by my Union, the Health Services Union, to record the direct face to face time with patients for a six-week period. 34. The outcome of this time and motion study revealed that 15 percent of my duties were considered direct contact with inmates. 35. I believe the result of this study do not correctly reflect the amount of time I spend in direct contact with patients and inmates. 36. During the weeks one to five of the six-week period, I was acting up in my manager's role. This impacted the results of the study as I was conducting more administrative work such as reviewing staff files and was unable to attend the gaols to meet with patients as often as I would when not Acting Manager. 37. I note that in week six of the study when I had resumed in my substantive role, the percentage of direct contact was at forty-five percent. 38. Furthermore, during the week three of the six-week study, I had an allocated day off. Although I was not at work on that day the hours contributed to the total hours worked which has affected the weekly direct percentage for that week.

Paul Grimmond

Mr Grimmond is the Director of Nursing and Midwifery Services within the Network. He has held this position, under different titles, since December 2011. Mr Grimmond gave evidence about the Connections Program as well as the role of the CSWs within that program. At the outset of his oral evidence-in-chief, Mr Grimmond made a number of corrections to his witness statement whereby he increased the time periods which he had initially stated that CSWs spend in face-to-face interviews with inmates. These increased time estimates are discussed further at paragraph 82 below. The following is an extract from Mr Grimmond's corrected witness statement: Patient interview 18. The interview with the patient is for the purpose of obtaining information to assist in the development and establishment of a programme to assist the patient to make connections in the community after release. The interviews are conducted within a correctional centre because the patient is still in custody at the time of the interview. 19. Not every patient referred to JH&FMHN for the Connections Program is able to be accepted into the program by JH&FMHN. Those that are eligible for participation and are accepted will then be allocated to the appropriate CSW. Factors in the allocation of patients are the location of the correction centre and the location of the community where the patient will be living. 20. Once allocated the CSW will make arrangements to visit the patient to discuss the program. If the patient is interested in participating in the program, the CSW will then continue with the interview and undertake the assessment by completing a standard form. 21. In some cases a patient may not want to participate, and the interview will last between 10-15 minutes. 22. If the interview continues to the assessment stage then the interview might take about an hour and in about 50% of cases up to about two hours. 23. In most cases there may be a brief follow up interview of 15 minutes or so to go through the finalised release plan. 24. The interview is the component of the various work and tasks listed in Position Description that requires direct contact with a patient when an inmate. 25. In the past CSWs also had the task of confirming opioid substitution treatment (OST) arrangements with the patient. That task was undertaken at the time of interview, and would take no more than five or ten minutes of direct contact. Since August 2016 that task is no longer undertaken by CSWs and has been allocated to other staff within the discharge planning office. Other 'contact' activities 26. Correction centres often hold information events, sometimes called Exhibition Days. These events usually operate for up to a four hour half a day but can last all day. Any patients in custody are able to find out about services available from JH&FMHN, including the Connections Program, or services provided by other agencies, such as Centrelink and Housing. Some of the CSWs attend these events and will interact with patients. Those that do attend might do so a few times a year and a small minority once or twice a month. Attendance depends on the particular correction centre. Some CSWs might never attend these events as the correction centre to which they are attached might not hold these events. The correction centres at Emu Plains, Dillwynia and John Morony roughly have an exhibition day every two months and two 2 CSWs attend. Events at rural areas are variable, but the Mid North Coast Correctional Centre may only have 1-2 a year. The attendances are not a core component of the position or of the Connections Program as they are not required to be undertaken by the Position Description, and are not undertaken by all the CSWs.
Attached to Mr Grimmond's witness statement was the most recent Position Description for a CSW. Under the heading 'JOB DEMANDS CHECKLIST' the following appeared: Psychosocial Demands Frequency Distressed People - e.g. Emergency or grief situations Frequent Aggressive & Uncooperative People - e.g. drug/alcohol, dementia, mental illness Frequent - e.g. Dementia, mental illness, head injuries Frequent
Also attached to Mr Grimmond's witness statement was a document entitled 'Connections Program Connections Statistics Report All Patients'. Mr Grimmond had this to say about that document: Statistical analysis 27. Statistics are maintained of the work of the Connection Program and reports are produced regularly and routinely. 28. Attached and marked "B" is a report of the Connection Program for the period July 2015 to June 2016. It records that 1,352 individuals were referred to the program. Of those 92 were not accepted as eligible. Of the remaining balance of 1,260 there were 306 individuals who could not be assessed, meaning there were 954 who could be assessed and were allocated to the CSWs for a possible interview. 29. Of those 954 visited, 175 declined participation, and of those 121 were assessed for opioid substitution treatment and 54 were not. Accordingly there were 175 brief interviews and 779 had interviews of about an hour or perhaps longer. 30. Averaging the 175 brief interviews over 17 FTE means there were about 10 brief patient interviews for each equivalent full time CSW (175 divided by 17). Allowing about a 10 minute average time for each of these brief meetings, it follows that on average each CSW had less than two hours a year of these interactions. 31. Averaging the 779 longer interviews over 17 FTE means there were about 46 patient interviews for each equivalent full time CSW (779 divided by 17). Allowing a longer than typical period of say 75 minutes, it follows that on average each full time CSW undertook about 58 hours of direct contact in the year. 32. Accordingly there was a total of about 60 hours a year of direct contact with patients for an average full time CSW. Those 60 hours represent less than 4% of the 1,674 hours worked in the year. The percentage would be even lower had the CSWs had no responsibility for a component of the OST program.

The HSU's submissions

The HSU submitted that the Determination, which is set out at paragraph 3 above, is an "instrument" for the purposes of section 175 of the Act and, as a consequence, this Commission may, for the purpose of exercising its functions in connection with the matter before it, determine any question concerning the interpretation, application or operation of the Determination.
The relief ultimately sought by the HSU is as follows: i. A determination under s 175 of the Industrial Relations Act 1996 that Clinical Support Workers employed by the respondent in connection with the Connections Program have substantial, regular and direct contact with inmates within the meaning and for the purposes of the Determination. ii. A direction and, or in the alternative, a recommendation under s 136(1)(a) of the Industrial Relations Act 1996 that the respondent pays to the Clinical Support Workers employed by the respondent in connection with the Connections Program the environmental allowance referred to in the Determination.
The HSU submitted that the ordinary and the grammatical meaning of the word "substantial", in the context of the Determination: i. refers to the quality of the contact that employees have with inmates, not just the quantity of time spent in contact with inmates; and ii. means that the quality of the contact must be real or actual, and 'of substance', as opposed to nominal, illusory or cursory. In other words, the contact must be meaningful and 'of real importance'.
By contrast, so it was submitted by the HSU, the environmental allowance is paid to nurses who work in Justice Health regardless of their specific position or duties. There is no requirement that nurses have a certain amount of contact with a patient in custody, there is no requirement that nurses work in a clinic within a gaol, and there is no requirement that nurses' contact with patients in custody be "substantial, regular and direct".
The HSU also noted that psychologists who work in correctional centres or juvenile justice centres are paid the environmental allowance, or a portion thereof, for working between two and five days in those centres.
In relation to the work of CSWs, the HSU submitted as follows: i. That they undertake detailed assessments of patients which regularly take up to 2 hours; ii. That the assessments are undertaken with patients who may suffer from a variety of problems including mental health problems, that affect their behaviour and their ability to participate in the assessment in a timely manner; iii. That the assessments cover a wide range of sensitive and potentially distressing topics and also cover harm minimisation strategies and the provision of information on overdose risk, reduced tolerance and the dangers of reducing opioid substitution programs (many of these were also cover during the cross examination of Mr Grimmond); iv. That it is essential that the Clinical Support Worker build and maintain trust with their patients during the first assessment and during subsequent contacts and that this takes time and effort on the part of the Clinical Support Worker; v. That separate to, and after, the initial assessment further detailed contact is required to do things such as: a) Obtain appropriate consents; b) Contact health and welfare service providers in the patient's presence, both in person in the centre and over the phone; c) Report back to the patient on progress, and problems, with arranging health and welfare services; d) Prepare things such as Court letters and letters for the State Parole Authority or Mental Health Review Tribunal; e) Go through treatment and release plans; and f) Discuss harm minimisation strategies, the dangers of overdose, reduced tolerance and the dangers of reducing opioid substitution treatment. vi. It was demonstrated that contacts of the kinds described immediately above may happen multiple times while the patient is in custody.

The respondent's submissions

The respondent submitted that the starting point for consideration of this matter must be the words used in the Determination used in context. A critical part of the context is the benchmarking of the environmental allowance to the circumstances of nurses working within a correctional services environment. That this is so flows from the use of the words "on the same basis" in the Determination. The respondent submitted: 14. The language used in the Determination is that the environmental allowance payable to nurses also is an allowance which applies "on the same basis" to non-nursing staff. The expression "on the same basis" means similar in all respects (Brown v The Victorian Railways Commissioners [1905] VLR 472 at 497) or, assuming all things being equal, involving the same circumstances (Pillirone & Sons Pty Ltd v Meadow View Stud Ltd [1998] VSC 23 at [10]; Pillirone & Sons Pty Ltd v Meadow View Stud Ltd [2000] VSCA 13 at [23]). This indicates that the environment faced by nurses supporting the entitlement to an allowance must be materially the same as the environment faced by non-nursing staff.
Specific reference was then made to the judgement of the Full Bench in Corrections Health Service Nurses' (State) Award (No.2) and, in particular, to the reference to "the everyday working environment for CHS nurses…" at paragraph 20 of that judgement (see paragraph 12 above).
The submissions of the respondent continued as follows: 16. The working environment that applies to nurses working within Justice Health is not the same as CSWs. The key difference is that, unlike nurses, CSWs do not deal with the inmates "every day". The everyday contact between nurses and inmates represented an important aspect of the Full Bench's decision to grant the claim for an environmental allowance. An inherent requirement of a nurses' position is to treat inmates and that requires them to be within that correctional centre by dealing directly with inmates. By contrast, CSWs have only occasional contact with inmates and much of the work done is required to be done or may be done outside the correctional centres in the absence of inmates. Absent this substantial daily contact with inmates, the working environment of CSWs is not comparable to nurses within Justice Health.
It was ultimately submitted that CSWs do not have "substantial, regular and direct contact with inmates". Interpretation of the Determination
Pursuant to section 175 of the Act, the Commission may, for the purpose of exercising its functions in connection with the current industrial dispute, determine any question concerning the interpretation, application or operation of the Determination, which is taken to be an "instrument" for the purposes of that section. The words of the Determination which require interpretation are: That the environmental allowance paid to nurses at Corrections Health Service… and paid for all purposes, including shift penalties and over time, to also apply on the same basis to non-nursing staff at Corrections Health who have substantial, regular and direct contact with inmates.
I reject the submission put on behalf of the respondent that the words "on the same basis" support the proposition that CSWs are entitled to payment of the environmental allowance only if the environment in which they work is materially the same as the environment in which nurses who receive the allowance work (see paragraph 68 above). The Victorian cases cited in support of this proposition dealt with different statutory expressions used in entirely different contexts. It is clear to me that the words "on the same basis", in the context in which those words are used in the Determination, qualify the immediately preceding words "and paid for all purposes, including shift penalties and over time". In other words, if CSWs otherwise qualify for payment of the environmental allowance, it is to be paid for all purposes, including shift penalties and overtime, on the same basis as it is paid to nurses.
I also reject the submission that the term "everyday working environment for CHS nurses", as used by the Full Bench in Corrections Health Service Nurses' (State) Award (No.2) at [20] (see paragraph 12 above), supports the proposition that, in order to qualify for payment of the environmental allowance, CSWs must have contact with inmates each and every working day. The context in which the Full Bench used the term "everyday" in its judgement in that matter does not suggest that the term was meant to be taken literally to mean "every working day".
There is nothing before the Commission which suggests that all nurses who receive the environmental allowance have contact with inmates each and every working day. In this context, I note that psychologists working in correctional centres are entitled to at least a pro-rata payment of the environmental allowance even in situations where contact with inmates occurs as infrequently as on two days a week. Contact with inmates on four days a week attracts payment of the full allowance.
The real issue to be determined in assessing whether, under the terms of the Determination, CSWs are entitled to payment of the environmental allowance is whether or not, in the performance of their role, they have "substantial, regular and direct contact with inmates".
It appears from the email correspondence from Mr Stein to the HSU of 28 September 2016, that it is considered by the Network that CSWs do have "regular" and "direct" contact with inmates, but issue is taken with the claim that such contact is "a substantial component of their role" (see paragraph 24 above). I note that the terms of the Determination do not make reference to contact with inmates being a substantial component of the role of the CSW, but simply that they have "substantial, regular and direct contact with inmates".
I accept the submissions of the HSU that the concept of "substantial… contact" cannot be measured simply in terms of percentage of working time spent engaged in such contact. Such an approach is far too simplistic and disregards the generally accepted meaning of the word "substantial". The Macquarie Dictionary (second edition) defines the word "substantial" as follows: 1. Of a corporeal or material nature; real or actual. 2. of ample or considerable amount, quantity, size, etc.: a substantial sum of money. 3. of solid character or quality; firm, stout, or strong. 4. being such with respect to essentials: two stories in substantial agreement. 5. wealthy or influential: one of the substantial men of the town. 6. of real worth or value: substantial reasons. 7. pertaining to the substance, matter or material of a thing. 8. of or pertaining to the essence of a thing; essential, material, or important. 9. being a substance; having independent existence. 10. Philos. pertaining to or of the nature of substance rather than accidents. -n. 11. something substantial.
As will be seen from the above definition, the concept of "substantial… contact" is more properly understood in terms of the qualitative nature of such contact rather than the more quantitative and simplistic measure of time spent in the company of inmates, as was the apparent focus of the 'time & motion study'.
In this regard, I can see absolutely no basis for the adoption of an arbitrary measure of 75% of the role of the CSW involving contact with patients within the custodial/forensic environment, in order for the "substantial" requirement to be met, as was the apparent position of the Ministry of Health in July 2014 (see paragraph 18 above).
Similarly, the apparent reduction of this requirement by the Deputy Director, Workplace Relations, NSW Health, in September 2015, to one where "direct contact is required with inmates for more than 50 per cent of working hours on a regular basis over the course of 52 weeks, as adjusted for approved leave", seems equally arbitrary and unsupported by any rational consideration of the concept of "substantial" (see paragraph 22 above).
I also disregard entirely the "statistical analysis" which was annexed to Mr Grimmond's witness statement and explained in the body of that statement at paragraphs 27-32 (see paragraph 61 above). This 'analysis' contemplates interviews of about 10 minutes for the 175 individuals who declined to participate in the Connections Program and only one interview of 75 minutes for each of the 779 individuals who did participate in the program. This 'analysis' does not take fully into consideration the corrections made by Mr Grimmond to his witness statement when he was in the witness box and corrected the time he claimed was taken for the interviews with the non-participants from "just a few minutes contact" to "between 10-15 minutes". Mr Grimmond also corrected the time he claimed was taken for the initial assessment interview with the participating individuals from "might take 45 minutes to an hour or so and in rare cases up to two hours" to "about an hour and in about 50% of cases up to about two hours". Further, no account at all was taken of the time spent by the CSWs in the follow-up interviews which each of the HSU witnesses claimed necessarily occurred with each participant in the Connections Program.
Ms Armstead stated that the second appointment to review the patient's transitional plan can take anywhere between one and two hours and that, in addition to this second meeting, she may need to see the patient a significant number of times before their release date for periods of between 15 minutes and one hour. Ms Armstead was not challenged on these aspects of her evidence and yet the "statistical analysis" annexed to Mr Grimmond's witness statement ignores all contact with patients who were participants in the Connections Program, apart from the initial assessment interview.
There was also some confusion as to whether the number 779 referred to individual inmates, all of whom would have had more than one interview, or to the total number of interviews conducted by CSWs during the course of the year. At one point in his final address, it was put by counsel for the respondent that the number 779 referred to total number of "interviews" or "episodes" or "engagements", rather than the number of inmates who were accepted into the Connections Program during the period July 2015 to June 2016. Counsel stated: What we do know then, Commissioner, is that the 779 interviews were conducted by 17 FTE employees, full-time equivalent employees, and that means that there were about 46 patient interviews per full-time employee. Now those episodes which are referred to there, Commissioner, refer to any face-to-face contact which is undertaken between a CSW and a patient, and that could be both the initial assessment interview or any follow-up interviews. It just has to be an assessment. And so what we assume there is that those interviews take around 75 minutes And later, this exchange occurred: COMMISSIONER: And you've allowed 75 minutes for each of those, is that how it's-- SECK: Yes, but we spread it over 17 FTEs. When we say 779, that's not 779 patients, that's 779 episodes, engagements. So patients could be engaged in more than once, that's included in the 779 number. But later still, this was put: SECK: Can I do two things. Can I make a concession, and I've just got these instructions, you are right, that those figures reflect patients and not interactions, so the evidence of Mr Grimmond to the extent it reflects that is inaccurate. So the numbers can be doubled, from 4% to 8%, and they could even be, you know, if there's going to be a third interaction, could be 12%, but we say the numbers are still - COMMISSIONER: That's really speculation, isn't it? SECK: Well it is speculation in terms of follow ups, we can only go on the evidence which has been given by the CSWs…
Based on the unchallenged evidence of the HSU's witnesses as to the need for follow-up interviews with inmates as part of the Connections Program, and the concession which was ultimately made by counsel for the respondent that the number 779 refers to inmates and not to interviews, Mr Grimmond's concluding proposition at paragraph 32 of his witness statement that each full time CSW spent a total of only 60 hours a year, or less than 4% of their working time, in direct contact with inmates, is clearly a gross underestimate (see paragraph 61 above). It is unclear to what extent, if at all, the estimate that CSWs spend only 4% of their working time in direct contact with inmates, influenced the position adopted by the Network that such contact is not "substantial".
Reliance by the respondent on the outcome of the 'time & motion study' to support the proposition that the contact CSWs have with inmates is not "substantial" is, in my opinion, misconceived. The concept of "substantial… contact with inmates", as this term is used in the Determination, has much more to do with the quality of the interaction that occurs between a CSW and an inmate than it has to do with the number of minutes occupied in such interaction. In this regard, I accept the submission put by the HSU that the qualitative nature of the contact between a CSW and an inmate which occurs during the assessment interview for the Connections Program, and during any required follow-up interviews, is such that this contact is, indeed, "substantial" in the sense that this term is used in the Determination.
The in depth nature of the interviews conducted by the CSWs with inmates, and the range and sensitivity of the subject matters discussed, is likely to render such contact far more "substantial" than, for example, the contact that a nurse, who is standing at a clinic window handing out methadone pills, might have with the inmates lined up outside to get their medication.
At one point during his cross-examination it appeared that Mr Grimmond agreed that the contact between a CSW and an inmate, at least during the assessment interview, was "substantial contact". This occurred during the following exchange: Q. …Paragraph 13, you refer to a section of the position description that's attached to your statement and you refer there to five dot points. Now the first dot point which relates to assessing the individual's post release needs and developing a comprehensive post release care plan, you agree that that involves substantial contact with the patient, is that correct? A. Yes.
I determine that duration, nature and quality of the contact that each of the CSWs, who gave evidence in these proceedings, has with inmates, is "substantial, regular and direct contact" in the sense that this expression is used in the Determination. I accept that the evidence given by these witnesses is fairly representative of the work performed by the 17 (FTE) CSWs who are employed in connection with the Connections Program. It follows that these CSWs are entitled to be paid the environmental allowance on the same basis as the allowance is paid to nurses employed in the Network.
The relief claimed by the HSU is that the Commission make a determination under section 175 of the Act, and a direction and, or in the alternative, a recommendation under section 136(1)(a) in the terms set out at paragraph 63 above. Section 136(1)(a) empowers the Commission to make a recommendation or give a direction to the parties to an industrial dispute. In my view, it is not an appropriate exercise of the power granted by this provision for the Commission to make a direction that an employer pay money to its employees. I, therefore, propose to make a recommendation in terms similar to those sought by the HSU.

Determination and recommendation

The Commission makes the following determination in recommendation: 1. The Commission determines under section 175 of the Industrial Relations Act 1996 that Clinical Support Workers employed in the Justice Health and Forensic Mental Health Network in connection with the Connections Program have substantial, regular and direct contact with inmates within the meaning and for the purposes of the Determination entitled "CORRECTIONS HEALTH SERVICE PAYMENT OF ENVIRONMENTAL ALLOWANCE TO NON-NURSING STAFF" made pursuant to section 115(2) of the Health Services Act 1997 by the Health Administration Corporation on 12 July 2002. 2. The Commission recommends under section 136(1)(a) of the Industrial Relations Act 1996 that the respondent pays to the Clinical Support Workers employed by the respondent in connection with the Connections Program, the environmental allowance referred to in the Determination on the same basis and at the same rate that this allowance is paid to nurses employed in the Justice Health and Forensic Mental Health Network.
These proceedings are stood over generally and the parties have liberty to apply to have them relisted at short notice. If that liberty is not exercised within 42 days of the date of this decision, these proceedings will be terminated and the Commission file will be closed. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2017

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (1)

Cases Cited (24)

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