Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2024] FWC 1946 of Deputy President Colman at Melbourne on 24 July 2024 in matter number C2024/343 - Interpretation of enterprise agreement - Dispute under the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 - Conditions of eligibility for theatre technicians to progress between classifications - Whether technicians entitled to progress from Grade 4 to Grade 5 with 12 months service or whether additional responsibilities above Grade 4 required - Dispute affects theatre technicians throughout the public health system in Victoria - Leave to appeal granted - Appeal allowed and dispute redetermined.

[1] This appeal arises from a decision in relation to a dispute referred to the Fair Work Commission (the Commission) for determination under s 739 of the Fair Work Act 2009 (the Act) and clause 17, Dispute Resolution Procedure, of the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 (the Agreement). The dispute concerns the eligibility of Grade 4 Theatre Technicians to progress to Grade 5 under clause 10 (Theatre Technician Structure) of Part 3 of Schedule 2D of the Agreement.

[2] The dispute was determined by Deputy President Colman in a decision published on 24 July 2024.[1] The Deputy President determined that Northern Health was not required to reclassify five theatre technicians, who are represented by the Health Services Union (the HSU), from Grade 4 to Grade 5. The HSU seeks leave to appeal. In short, the HSU contends that the Deputy President erred in his construction of the classification descriptors in the Agreement, and should have found that Grade 4 technicians are entitled to automatically progress to Grade 5 after 12 months' experience, provided that at the time of the progression they are undertaking (or are liable to undertake) "additional responsibilities" which are required for Grades 4 and 5 (but which are not required for Grade 3 or below).

[3] For the reasons that follow, leave to appeal should be granted and the appeal allowed. In our opinion, the construction advanced by the HSU is correct and should be accepted. The dispute will need to be remitted to the Deputy President to determine an underlying factual question concerning the work of the five theatre technicians who are subject of the present dispute. That question was not decided at first instance.

[4] With certain exceptions, the Agreement covers employees of various public health organisations in Victoria and who are employed in any of the classifications set out in the Agreement. Clause 75.1 provides that the employer "will classify all Employees in accordance with the classification structure set out in Schedule 2D or Schedule 3D (as applicable)".

[5] Section 2 of the Agreement deals with health and allied services employees and dental assistants and Schedule 2D is entitled "Classification Structure". Clause 10.1 of Schedule 2D provides for a five-grade structure for theatre technicians. Each classification level sets out the relevant experience, qualifications and duties of a technician at that Grade as well as the conditions for progression from that grade to the next. For example, a Grade 1 technician will progress to Grade 2 if they meet the local capability framework, has completed twelve months experience as a theatre technician and holds a theatre technician qualification.

[6] The dispute subject of the present appeal concerns the conditions for progression from Grade 4 to Grade 5. It is convenient to set out the classification descriptors for Grades 3, 4 and 5 which are as follows:

• has greater than twenty-four (24) months experience (full-time equivalent) working as a Theatre Technician.

• hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,

• An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;

• is able to work in all surgical and clinical specialties offered in that hospital's operating suite.

• operate with a high degree of autonomy and accountability.

• is not required to supervise or train other Theatre Technicians.

A Grade 3 will progress to Theatre Technician Grade 4 where the Theatre Technician can establish they:

• are able to work in all surgical and/or clinical specialties offered in that hospital; and

• have greater than thirty-six (36) months experience (full-time equivalent) as a Theatre Technician; and

• undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:

o supervision and training of junior Theatre Technicians (where employed)

• Or where mutually agreed, work across multiple hospitals/sites/campus'.

• has greater than thirty-six (36) months experience (full-time equivalent) as a Theatre Technician

• hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,

• An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;

• has comprehensive knowledge and ability to work in all surgical and clinical specialties offered in that hospital; and

• operates with a high degree of autonomy and accountability.

• undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:

o supervision and training of junior Theatre Technicians (where employed)

• may be required to perform Higher Duties where the Theatre Technician Manager is on leave.

• or where mutually agreed, work across multiple hospitals/sites/campus'.

A Grade 4 will progress to Theatre Technician Grade 5 where the Theatre

• have greater than twelve (12) months experience (full-time equivalent) working

• undertakes additional given responsibilities determined locally. Examples of

additional responsibilities may include but not limited to:

o supervision and training of junior Theatre Technicians (where employed)

• has greater than twelve (12) months experience (full-time equivalent) working as a Theatre Technician Grade 4

• hold a Certificate IV in Operating Theatre Technician Support (HLT47515); or,

• An equivalent qualification awarded by a registered training organisation, recognised by the Employer as such;

• has comprehensive knowledge and ability to work in all surgical and clinical specialties offered in that hospital; and

• operates with a high degree of autonomy and accountability; and

• undertakes additional given responsibilities determined locally, including, but not limited to supervision and training of junior Theatre Technicians (where employed), quality and governance, floor coordination and rostering; and

• where mutually agreed, work across multiple hospitals/sites/campus'; and

• will be required to perform Higher Duties where the Theatre Technician Manager is on leave.

[7] The core dispute between the parties concerns the requirements for progression from Grade 4 to Grade 5 and, in particular, the progression requirement that the technician can establish that he or she "undertakes additional responsibilities determined locally". The HSU submits that the reference to "additional responsibilities determined locally" is a reference to responsibilities additional to those undertaken by a Grade 3 technician and that, so long as responsibilities of that type are being undertaken, the technician is entitled to progress to Grade 5 after 12 months experience. Northern Health, on the other hand, contends that to progress to Grade 5 a technician must have 12 months experience working at Grade 4, have additional responsibilities determined locally in addition to the responsibilities the technician was required to undertake at Grade 4 and those additional responsibilities must be performed.

[8] In the decision at first instance, the Deputy President described that the dispute which had been referred to the Commission concerned the application of the classification structure in the Agreement to five members of the HSU employed by Northern Health as theatre technicians and, in particular, whether those individuals should have been classified at Grade 5. There was no dispute, and the Deputy President accepted, that the Commission was authorised to determine the dispute by arbitration in accordance with clause 17 of the Agreement.[2]

[9] The Deputy President initially set out the positions advanced by the parties. Importantly, the Deputy President recorded that Northern Health advanced two contentions as to why the five individual technicians were not entitled to progress to Grade 5. The Deputy President recorded that the primary contention advanced by Northern Health was that the five technicians could not progress to Grade 5 because, although they had been classified and treated as Grade 4 technicians, they were in fact Grade 3 technicians and, accordingly, did not have 12 months experience working at Grade 4. Northern Health contended that the five technicians had been classified and treated as Grade 4 technicians in order to resolve grievances arising from the implementation of an earlier change to the classification structure and that they did not, as a matter of fact, perform any of the "additional responsibilities" necessary to fall within the Grade 4 classification.[3]

[10] The second contention advanced by Northern Health was that, even if the five technicians were considered to be Grade 4 technicians, they did not satisfy the second criterion for progression. Northern Health contended that the reference to "additional given responsibilities determined locally" meant additional duties that were over and above those which qualified an employee for the Grade 4 classification. Northern Health contended that the five technicians had not identified any work that they had undertaken that was additional to the duties which, in their contention, had qualified them for the Grade 4 classification.[4]

[11] The Deputy President indicated that Northern Health had, in its first contention, asked the Commission to make factual findings that the five technicians subject of the dispute were Grade 3 technicians and that, if the Commission reached that conclusion, it was unnecessary to consider the question raised as to the construction of the classification structure of the Agreement. The Deputy President declined to follow the approach suggested by Northern Health and observed that the orthodox approach is to first ascertain the proper construction of the relevant provisions and then apply that construction to the facts.[5] In light of the construction of the Agreement he accepted, the Deputy President found it unnecessary to make factual findings as to whether the five technicians were properly classified at Grade 4.

[12] In relation to the construction of the classification structure for theatre technicians, the Deputy President rejected the submissions of the HSU that the words "additional responsibilities" in the second dot point in the progression clause within Grade 4 have the same meaning as the words "additional responsibilities" in the third dot point under "duties" in the Grade 4 classification and in the progression clause within the Grade 3 classification.[6] In short, the Deputy President rejected the submission that the "additional responsibilities" referred to in the classification descriptors for Grades 4 and 5 were the same and concluded that progression required a technician to take on responsibilities additional to those performed at Grade 4.

[13] The Deputy President identified three reasons for that conclusion. First, the Deputy President said that the word "additional" means added, supplementary or extra and, in the context of the classification structure, must be understood to require that, to progress to the next grade, employees must undertake responsibilities that are additional to the ones that they are already performing in their current grade The Deputy President concluded that "additional responsibilities' in the progression clause of Grade 3 logically refers to responsibilities that are additional to the responsibilities of the Grade 3 classification and, in the same way, the reference to "additional responsibilities" in the progression clause of Grade 4 should be understood as referring to responsibilities additional to those being undertaken at Grade 4.[7]

[14] Second, the Deputy President asserted that the consequence of the HSU's interpretation would be that, once a technician had progressed from Grade 3 to Grade 4, all that would be necessary for the technician to progress to Grade 5 would be that they serve 12 months at Grade 4. The Deputy President regarded it as being improbable that such a framework would have been intended. The Deputy President asserted that the interpretation advanced by the HSU could have been achieved by a simple one line statement that a Grade 4 technician progresses to Grade 5 after 12 months service and, in the opinion of the Deputy President, it must have been intended that more was required by the reference to "additional responsibilities" in the second dot point of the progression clause within the Grade 4 classification.[8]

[15] Third, and relatedly, the Deputy President said that the HSU's construction would give the second dot point in the progression clause in Grade 4 no work to do, because the technicians in question have already undertaken the additional responsibilities, and there would be no new "hoops" to jump through and the additional responsibilities at Grade 5 would be the same as those previously required of employees at Grade 4. If that were the case, according to the Deputy President, the Grade 5 classification would be redundant, because the progression clause at Grade 4 would have done its work and all that would be required for Grade 5 was a different rate of pay.[9]

[16] The Deputy President stated his conclusion in the following terms:[10]

There is no evidence that the five employees have undertaken any responsibilities that are additional to those that they claim to have undertaken as part of their grade 4 duties. On the proper construction of the Agreement, it is a necessary condition for progression from grade 4 to grade 5 that a theatre technician undertakes such additional responsibilities. In the absence of evidence substantiating the satisfaction of this requirement, the HSU's application must be rejected. Accordingly, I find that Northern Health is not required to reclassify the employees at level 5.

[17] Finally, the Deputy President determined that there was an additional reason why the HSU's claim could not be accepted. The Deputy President concluded that the requirement in the progression clauses at Grades 3 and 4 that employees be undertaking additional responsibilities that were "determined locally" means they must have been identified as given responsibilities for the purposes of the clause. The Deputy President expressed the view that this "could not occur without the employer's agreement" and it is not enough that an employee simply undertakes work that might generally be described as "supervision" or "quality" or "rostering". The Deputy President concluded that there was no evidence that any additional responsibilities claimed to have been undertaken by the five technicians were locally determined for the purposes of the employees' progression from Grade 4 to Grade 5.[11]

[18] The ordinary position under s 604 of the Act is that a person aggrieved by a decision of the Commission may only appeal with permission. However, as is well known, when dealing with a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission is acting as a private arbitrator. The nature and extent of the function to be undertaken by the Commission is determined by the agreement of the parties, including the availability and nature of any appeal. The parties may agree that there will be a right of appeal or remove or modify the requirements ordinarily applicable to an appeal under s 604 of the Act, including the need for permission to appeal to be obtained.[12]

[19] Clause 17 of the Agreement provides for certain disputes to be referred to the Commission for conciliation and, if the matter in dispute remains unresolved, arbitration.[13] If a dispute is referred to the Commission, and the dispute is not settled by conciliation, either party may request the Commission proceed to determine the dispute by arbitration.[14] The decision of the Commission in arbitration is binding on the persons covered by the Agreement subject to clause 17.7(d).[15] Clause 17.7(d) provides as follows:

(d) An appeal lies to a Full Bench of the Commission, with the leave of the Full Bench, against a determination of a single member of the Commission made pursuant to this clause.

[20] In its submissions, the HSU indicated that it did not suggest that the requirement for "leave" is any different from the requirement for the Commission to grant permission to appeal under s 604(1) of the Act. We agree that the reference to the Commission granting "leave" as opposed to "permission" to appeal does not suggest any difference of substance. However, the Agreement does not simply adopt the test in s 604 of the Act. Clause 17.7(d) does not include the obligation imposed by s 604(2) that the Commission must grant permission to appeal if satisfied it is in the public interest to do so. Clause 17.7(d) simply confers a broad discretion on the Commission as to whether to grant leave to appeal no doubt intended to be guided by the type of considerations which have historically been considered relevant to that question by courts and tribunals. In that respect, in Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481, the Full Court said in relation to s 45 of the Workplace Relations Act 1996 (Cth):

Section 45 does not specify grounds for granting leave to appeal other than in the special case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These "grounds" should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.

[21] We are satisfied that it is appropriate to grant leave to appeal in this matter. As will be apparent from the reasoning below, we believe that the decision of the Deputy President is attended by sufficient doubt to warrant its reconsideration. Some injustice will be caused to members of the HSU if the Deputy President's decision is in error, but is allowed to stand, in the sense that the technicians will continue to be paid under the incorrect classification. Furthermore, the Agreement applies throughout the public health system in Victoria. Northern Health accepted that the dispute, and the question of construction of the Agreement raised, has wider ramifications both for Northern Health itself and other public sector hospital employers in Victoria. For those reasons, leave to appeal should be granted.

[22] The dispute determined by the Deputy President involved a question concerning the construction and application of the classification descriptors in the Agreement. The proper construction of an enterprise agreement is a question of law to which there is only one true answer. Similarly, the application of the classifications in the Agreement is capable of only having one legally correct answer. Either the five technicians are entitled to be reclassified as Grade 5 technicians, or they are not. As such, the appeal is one to which the correctness standard applies.[16] The question on appeal, once leave to appeal is granted, is simply whether the answer given by the Deputy President was correct or incorrect.

[23] The principles of interpretation of enterprise agreements are well established.[17] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as such documents "are not always drafted carefully by lawyers or professional drafters" and the framers of the agreement may not have paid attention to "legal niceties and jargon".[18] However, the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferrable outcome.[19]

[24] It is appropriate to commence with the language of the classification descriptors for theatre technicians within clause 10.1 of Schedule 2D to the Agreement. Three contentions in relation to the language used in the classification descriptors for the theatre technician classifications in clause 10.1 of Schedule 2D were persuasive in the decision of the Deputy President and were relied upon by Northern Health in its submissions on appeal. Upon examination, we do not believe the contentions support the construction adopted by the Deputy President.

[25] The first aspect of the text relied upon by Northern Health is that it contends that the use of the language of "additional responsibilities" in the second dot point in the progression clause within the Grade 4 classification must have been intended to refer to "added, supplementary or extra" responsibilities over and above those being undertaken at Grade 4. Understood in the context of the use of the same words used to govern progression from Grade 3 to Grade 4, Northern Health submits that the word "additional" is only given a consistent and harmonious meaning if it is understood to mean additional to the responsibilities that the employee is required to perform in their existing substantive classification.

[26] The submission has some initial attraction. Often, progression from one classification to another will depend on an employee undertaking additional responsibilities or duties. However, Northern Health's submissions focus on the words "additional responsibilities" out of context. A significant aspect of the classification descriptors at Grades 3, 4 and 5 is that precisely the same "additional responsibilities" are listed as necessary to progress from Grade 3 to Grade 4, as part of the duties of a Grade 4 technician, as necessary to progress from Grade 4 to Grade 5 and as part of the duties of a Grade 5 technician. It is instructive to extract the relevant provisions. The progression clause setting out when a Grade 3 technician "will progress" to Grade 4 includes that the technician can establish they:

• undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:

o supervision and training of junior Theatre Technicians (where employed)

[27] The duties of a Grade 4 technician include:

• undertakes additional given responsibilities determined locally. Examples of additional responsibilities may include but not limited to:

o supervision and training of junior Theatre Technicians (where employed)

[28] The progression clause setting out when a Grade 4 technician "will progress" to Grade 5 includes that the technician can establish they:

• undertakes additional given responsibilities determined locally. Examples of

additional responsibilities may include but not limited to:

o supervision and training of junior Theatre Technicians (where employed)

[29] The duties of a Grade 5 technician are set out in a slightly different manner but are, in substance, the same. The duties of a Grade 5 technician include:

• undertakes additional given responsibilities determined locally, including, but not limited to supervision and training of junior Theatre Technicians (where employed), quality and governance, floor coordination and rostering; and

[30] Although given by way of example, the duties described as "additional responsibilities" which permit progression from Grade 3 to Grade 4 are the same as those that permit progression from Grade 4 to Grade 5. In each case, reference is made to supervision and training, quality and governance, floor coordination and rostering. If those same responsibilities can be performed by a technician classified either as a Grade 4 or Grade 5 technician, the words "additional responsibilities" cannot, in our opinion, be understood to require that to progress to Grade 5 a technician must undertake responsibilities in addition to those that are capable of being undertaken at Grade 4. The classification descriptors indicate that precisely the same types of responsibilities can be undertaken at Grade 4 and Grade 5.

[31] That construction does not deprive the words "additional responsibilities" of sensible meaning as contended by Northern Health. We accept that the ordinary meaning of the word "additional" is "added" or "supplementary".[20] However, the question is to what the responsibilities must be in addition. That the words "additional responsibilities" first appear in the provision governing progression from Grade 3 to Grade 4, together with the fact that the same responsibilities are replicated in the duties listed in Grades 4 and 5, indicates that the responsibilities are additional to work capable of being undertaken at Grade 3. Whilst a technician at either Grade 4 or Grade 5 undertakes responsibilities in addition to those performed by a technician at Grade 3, the language of the progression clause does not, in our opinion, dictate that to progress to Grade 5, a technician must perform duties over and above those capable of being undertaken by a Grade 4 technician. The fact that the same duties can be performed at Grade 4 and Grade 5 suggests to the contrary.

[32] The second contention advanced by Northern Health in relation to the text of the classification descriptors is that, it submits, if the drafters of the Agreement had intended that progression from Grade 4 to Grade 5 occur automatically after 12 months, that outcome could have been achieved by using simple words of plain intendment. Such an outcome could, as the Deputy President observed, have been achieved by a "one line statement". We accept that the classification descriptors, and the criteria for progression from Grade 4 to Grade 5, could have been expressed in a more straightforward manner. However, in the context of this Agreement, we do not derive much assistance from the contention that the construction advanced by the HSU could have been implemented by more direct language. It is equally possible to say that the construction advanced by Northern Health, and accepted by the Deputy President, could have been plainly expressed. The progression rules could have said that, to progress from Grade 4 to Grade 5, a technician must undertake "additional responsibilities to those undertaken at Grade 4" or have delineated different types of responsibilities that could be performed at Grade 4 compared to Grade 5. The Agreement did neither of those things.

[33] The language used in the Agreement, including in relation to progression from one theatre technician classification to another, is less clear than could have been the case. Where a provision is ambiguous, as it must be accepted the relevant provisions are in this matter, to simply assert that a particular outcome could have been more simply expressed will often be of limited assistance in ascertaining the preferrable construction. Frequently, such a submission could plausibly be made by parties contending for two diametrically opposed interpretations. That is a natural consequence of the provision being ambiguous. The dispute having been referred to the Commission, the task is to construe the Agreement to arrive at the correct construction doing the best one can to give effect to the ordinary meaning of the words used when read as a whole and in context.

[34] Northern Health makes a related submission which is that the clause governing progression from Grade 2 to Grade 3 expressly provides that a technician "will automatically progress" if the requisite criteria are met. Northern Health emphasises that the word "automatically" is bolded in the text of the Agreement. Contrast is drawn with the progression provisions with respect to progression from Grade 3 to Grade 4 and from Grade 4 to Grade 5 each of which provide that a technician will progress if they "can establish" the relevant criteria are met. As we understood the submission, Northern Health contends that, where the Agreement intended to facilitate automatic progression on the basis of a period of service, it says so in express terms.

[35] When the provisions are reviewed as a whole, we are unable to attach much significance to the use of the word "automatically" at one point in the classification descriptors for theatre technicians. Although it is said that progression from Grade 2 to Grade 3 will occur "automatically", the criteria for progression include matters which require assessment and judgement including that the technician "is able to work in all surgical and clinical specialties offered in that hospital's operating suite" and operates "with a high degree of autonomy and accountability". Progression does not merely occur automatically upon satisfaction of some objectively ascertainable conditions and, as a practical matter at least, would require an assessment to be made as to whether the criteria were met.

[36] Furthermore, the provisions governing progression from Grades 3 to 4 and Grades 4 to 5 also use mandatory language in that they provide a technician "will progress" if the conditions for progression are satisfied. The reference to progression occurring if a technician "can establish" the criteria are met does not, in our opinion, progress the question of interpretation any further. Whilst the language, on one view, appears to impose an onus on the technician to demonstrate that the requirements for progression are met, we did not understand Northern Health to suggest that the employer retained a general discretion to refuse progression. If a technician establishes that the requirements for progression are met, they are entitled to progress to the higher grade. Progression is, in that sense, mandatory.

[37] The third contention advanced by Northern Health arising from the text of the classification descriptors is that the construction contended for by the HSU gives the words "additional responsibilities" in the progression clause in Grade 4 no meaning, rendering them otiose. We do not accept that is the case. Progression from Grade 4 to Grade 5 requires two criteria to be met: the technician have greater that 12 months experience working as a Grade 4 and that they undertake additional given responsibilities determined locally. The HSU accepted that they were two distinct requirements. The second requirement is that the technician, at the point of progression from Grade 4 to Grade 5, continues to undertake relevant additional responsibilities above those capable of being performed by a Grade 3 technician. That construction gives the second dot point in the progression clause in Grade 4 meaning and work to do. Giving those words work to do does not, however, require that the words "additional responsibilities" be construed as requiring a technician undertake responsibilities above those capable of being undertaken at Grade 4. For the reasons set out above, such a construction cannot be reconciled with the fact that the same responsibilities are listed as duties able to be performed at Grade 4 and Grade 5.

[38] Finally, the listed duties at Grade 4 and Grade 5 include reference to a technician at both levels performing higher duties when the Theatre Technician Manager is on leave. The description of the duties is phrased differently at Grade 4 and Grade 5. The duties of a Grade 4 technician include:

• may be required to perform Higher Duties where the Theatre Technician Manager is on leave.

[39] The duties of a Grade 5 technician include:

• will be required to perform Higher Duties where the Theatre Technician Manager is on leave.

[40] We would construe those provisions as indicating both a Grade 4 and Grade 5 technician may be required to perform higher duties in the role of Theatre Technician Manager. The fact that a Grade 5 technician "will" be required to perform such higher duties suggests that the Grade 5 will act up where possible no doubt reflecting seniority. However, the duties of a Grade 4 technician include that a Grade 4 technician may be required to do so, for example, if there is no Grade 5 technician available. That provides further support for the conclusion that there is no distinction in the type of duties able to be undertaken at Grade 4 and Grade 5.

[41] For those reasons, the text of the classification descriptors favours the construction advanced by the HSU. The fact that precisely the same "additional responsibilities" are listed as capable of being undertaken at Grade 4 and Grade 5 cannot be reconciled with the conclusion reached by the Deputy President that progression to Grade 5 requires a technician to establish they are undertaking duties over and above those required at Grade 4.

[42] The HSU submits that its construction serves a useful industrial purpose.[21] It says time-based progression provides an incentive to staff to remain at Northern Health and a fair system for pay increases. With respect, the submission seeks to impose a purpose on the provisions which is not immediately discernible from the provisions themselves or from any extrinsic material or contextual considerations to which we have been referred. We accept that staff retention and fair reward for service might provide a possible basis for the incorporation of time-based progression in the Agreement. However, the provisions themselves do not permit a firm conclusion that those considerations represent the purpose of the classification provisions. There is, to say the least, potential for disagreement as to how those objectives might be best achieved. In this case, the text of the provisions themselves represents a better guide to their proper interpretation.

[43] It is significant that the construction advanced by Northern Health would, in our opinion, produce some incongruous and inequitable results. Both parties accepted that the examples of "additional responsibilities" set out at Grades 4 and 5 are not each required to be performed by a particular employee. It is sufficient that some additional responsibilities are undertaken. Northern Health, however, submits that to progress to Grade 5 an individual technician is required to establish that they undertake responsibilities in addition to their substantive classification. On that view, a Grade 3 technician could progress to Grade 4 if required to undertake, for example, "rostering" so long as the other requirements were met. If, after 12 months, the technician acquired a new responsibility with respect to supervision and training they could progress to Grade 5. If, on the other hand, the technician performed both rostering and supervision and training from the time they became a Grade 4 technician, the technician would not be entitled to progress to Grade 5 and would be stuck at Grade 4. Such an outcome would be inequitable and is unlikely to have been intended.

[44] The construction we believe is correct gives rational operation to the classification structure. Grades 1 to 3 apply to theatre technicians performing operational work across the surgical and clinical specialties offered at the relevant hospital. Within Grades 1 to 3, progression occurs by way of the period of service of the technician together with acquisition of qualifications and the scope of work able to be undertaken by the technician. Grades 4 and 5 are distinguished from Grades 1 to 3 by the addition of responsibilities of a supervisory, training, coordination or rostering nature. That is emphasised by the specification of the duties capable of being performed at Grade 3. The duties provision for a Grade 3 technician expressly provides that a technician at Grade 3 "is not required to supervise or train other Theatre Technicians". There is then time-based progression within the supervisory and coordination grades at Grades 4 and 5 subject to the technician continuing to undertake the type of additional responsibilities that distinguish Grades 4 and 5 from Grades 1 to 3. Unlike the Deputy President, we do not believe that, assessed objectively, it is improbable the parties intended the classification structure to operate in that manner.[22]

[45] The HSU relied upon the history of the classification structure to support its submissions. Given we believe the construction advanced by the HSU should be accepted based on the text of the Agreement, it is unnecessary to reflect on the history of the classifications at great length. It is sufficient to observe that, in our opinion, the history of the evolution of the theatre technician classifications supports the construction advanced by the HSU.

[46] The history, as traced in the HSU's submissions, commences with the Health and Allied Services - Public Sector - Victoria Consolidated Award 1998 (the 1998 Award). The 1998 Award provided for two grades of theatre technicians recorded at Wage/Skill Group 4 and Wage/Skill Group 6.[23] At that time, the classification descriptors for a Theatre Technician Grade 1 and Grade 2 provided for progression to Grade 2 if a technician had at least three years' experience, had completed a relevant theatre technician course and was required to perform duties under minimum supervision and guidance and directly assisting the anaesthetist and other medical and theatre staff.[24]

[47] The Health Services Union of Australia - Health and Allied Services - Victorian Public Health Multi Employer Certified Agreement 2002-2006 (the 2002 Agreement) then introduced a four-level classification structure for theatre and instrument technicians.[25] Other than indicating that a Technician Grade 1 was a "Trainee/Unqualified", the 2002 Agreement provided that: "The classification definitions for Theatre and Instrument Technicians shall be determined in accordance with clause 25.3.1 of this Agreement". Clause 25.3.1 provided for a "review of the classification definitions to apply to the new Theatre Technicians and Instrument (CSSD) Technicians structure" to be conducted following the certification of the 2002 Agreement and in consultation with employees nominated by the HSU.

[48] The Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Health - Multi Employer Certified Agreement 2006-2009 (the 2006 Agreement) also contained a four-level classification structure for theatre technicians but, presumably as a consequence of the review contemplated by the 2002 Agreement, contained detailed classification descriptors for each level.[26] In short, Grades 1 to 3 provided for progression from an unqualified technician based on acquisition of qualifications and periods of service. Grade 3, for example, was a technician with a minimum of three years' experience as a theatre technician, who was able to work in all areas of the operating suite, and had a comprehensive knowledge and ability to work within each of the clinical specialties offered at that hospital. For the first time, a classification of theatre technician with supervisory or managerial responsibilities was introduced. At that time, a Grade 4 technician was a person who was appointed as such and who, in addition to meeting the criteria of a Theatre Technician Grade 3, undertook "additional managerial responsibilities, including rostering, allocations, professional development, and the supervision and training of staff".

[49] The same classification structure was maintained in the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2009-2011 (the 2009 Agreement).[27] The Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015 (the 2011 Agreement) provided for a further classification review to be conducted.[28] The outcomes of the review were to be implemented subject to budget constraints and the parties contemplated that variations may be made to the 2011 Agreement in order to implement the outcomes of the review.[29]

[50] The Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (the 2016 Agreement) introduced a six-level classification structure to apply from 1 October 2018. At the lower end of the classification scale, Grade 1 was limited to a technician with less than three months experience and a technician would then automatically progress to Grade 2. Importantly, two grades were introduced at the higher end of the classification scale at Grades 5 and 6 for technicians with supervisory or managerial responsibilities. The classification descriptors for Grades 5 and 6 both included reference in the same terms to a technician who "undertakes additional given responsibilities, including supervision and training of junior technicians".[30]

[51] The current Agreement then introduced the present five-level classification structure with effect from 1 July 2021. The translation provision makes clear that the reduction from a six-level to a five-level structure arose from collapsing Grades 1 and 2 such that any technician with less than 12 months experience will be a Grade 1 Technician in Training. The current Agreement maintained two grades at which additional responsibilities of a supervisory or managerial type could be undertaken, but now as Grades 4 and 5. As we have observed, both Grade 4 and Grade 5 undertake additional responsibilities described in the same terms as involving duties such as supervision and training, quality and governance, floor coordination and rostering.

[52] This history provides some support for the construction advanced by the HSU. The evolution of classifications for theatre technicians demonstrates the creation of a distinction between the classifications performing purely the operational work of a technician and technicians also taking on some supervisory or managerial functions. The 2006 Agreement introduced, for the first time, a classification for a technician who "undertakes additional managerial responsibilities". The 2016 Agreement subsequently separated technicians undertaking supervisory or managerial responsibilities into two grades albeit undertaking the same type of responsibilities. That history supports the conclusion which we have otherwise reached based on the text of the classification descriptors in the current Agreement, namely, that the type of "additional given responsibilities" undertaken by employees at Grades 4 and 5 are the same and that new or different responsibilities are not required to progress from Grade 4 to Grade 5.

[53] The primary basis of the decision of the Deputy President was that to progress to Grade 5 a technician would need to establish that they undertook responsibilities additional to those undertaken at Grade 4. However, the Deputy President suggested that there was a further reason why the HSU's claim should be rejected. The Deputy President also said:[31]

There is an additional reason why the HSU's claim cannot be accepted. The progression clauses at grades 3 and 4 speak of employees undertaking additional given responsibilities that are 'determined locally'. To be determined, they must have been identified as given responsibilities for the purposes of the clause. This could not occur without the employer's agreement. In my view it is not enough that an employee simply undertakes work that might generally be described as 'supervision' or 'quality' or 'rostering' etc, as the HSU appears to have believed. The responsibilities must be particularised: which additional responsibilities will be undertaken, when, and how often etc. There is no evidence in this case that any additional responsibilities were locally determined for the purposes of the employees' progression from grade 4 to grade 5.

[54] The reasoning of the Deputy President appears to be that, in addition to a technician actually undertaking relevant additional responsibilities, to progress to Grade 5 those responsibilities must have been "determined locally" in the sense that the duties must have been "identified as given responsibilities for the purposes of the clause" and with the "employers' agreement". On this view, it is not sufficient that the technician simply undertakes work in the nature of supervision and training, quality and governance, floor coordination or rostering.

[55] On one view, the reasoning of the Deputy President appears to be that progression depends not merely on the nature of work a technician is required to undertake, but whether the employer has agreed that the duties are such that a technician should progress to Grade 5. If that is the way the reasoning is properly understood, Northern Health did not adopt that view of the operation of the progression clause within Grade 4. In its submissions on appeal, Northern Health accepted that it is sufficient for an employee to progress if that employee had been allocated work of a relevant supervisory type by someone with appropriate management responsibility within the employer's organisation. Northern Health did not suggest that progression is dependent on a discrete designation being made by the employer that the duties undertaken by the technician fall within Grade 5 or warrant progression.

[56] We do not consider the description of a technician as undertaking additional given responsibilities which are "determined locally" to introduce a further requirement for progression which is dependent on an agreement by the employer that a person should progress from Grade 4 to Grade 5. The requirement that the additional duties undertaken by a technician be "determined locally" does not, in our opinion, mean more than that those responsibilities have been allocated to the technician in accordance with local management arrangements that exist in the particular health organisation concerned. As we have observed, Northern Health did not submit to the contrary. Understood in that way, the words "determined locally" do not provide an alternative basis upon which the HSU's claim should be rejected.

[57] For these reasons and with respect, the Full Bench has concluded that the construction of the Agreement arrived at in the decision at first instance is not correct. A technician is entitled to progress from Grade 4 to Grade 5 if the technician can establish that they have greater than 12 months experience working as a Grade 4 and that they undertake additional given responsibilities of a supervisory type such as supervision and training, quality and governance, floor coordination and rostering. Progression does not depend on establishing the technician has responsibilities in addition to those being undertaken by the technician at Grade 4.

[58] That conclusion requires that the appeal be allowed, and the decision of the Deputy President be quashed. There remains an underlying factual dispute in relation the nature of the responsibilities in fact being undertaken by the five technicians who were subject of the dispute. As we have recorded above, Northern Health contended at first instance that the technicians were not actually undertaking responsibilities falling within Grade 4 and, for that reason, were not entitled to progress to Grade 5 even if the HSU's construction were accepted. The Deputy President did not find it necessary to determine that factual dispute in light of the construction of the Agreement he adopted.

[59] Northern Health submits that, if it were to accept the HSU's construction, the Full Bench had sufficient material before it to determine the factual controversy. The HSU indicated that it was not, on the hearing of the appeal, in a position to make full submissions with respect to the factual dispute. In the circumstances, we believe the better course is to remit the factual dispute to be determined by the Deputy President. The question was the subject of voluminous evidence at first instance and the witnesses were cross-examined in relation to the nature of the duties allocated to and undertaken by the five technicians. The Full Bench has, obviously enough, not had the benefit of hearing that evidence. We also note that the HSU has raised what appears to be a new argument that Northern Health is estopped from contending that the five technicians are not undertaking duties appropriate for a Grade 4 technician. On balance, the convenient course is that the underlying factual dispute be remitted to the Deputy President to be determined in accordance with this decision.

[60] The Full Bench makes the following orders:

• (a) Leave to appeal is granted;

• (b) The appeal is allowed;

• (c) The decision in Health Services Union v Northern Health [2024] FWC 1946 is quashed; and

• (d) The dispute in Matter No. C2024/343 is remitted to Deputy President Colman to be determined in accordance with this decision.

J Fetter, counsel, instructed by D Harika for the HSU.

S Kelly, counsel, instructed by the Victorian Government Solicitor's Office for Northern Health.

[1] Health Services Union v Northern Health [2024] FWC 1946.

[2] [2024] FWC 1946 at [11].

[3] [2024] FWC 1946 at [7]- [9].

[4] [2024] FWC 1946 at [10].

[5] [2024] FWC 1946 at [11].

[6] [2024] FWC 1946 at [12].

[7] [2024] FWC 1946 at [13].

[8] [2024] FWC 1946 at [14].

[9] [2024] FWC 1946 at [15].

[10] [2024] FWC 1946 at [17].

[11] [2024] FWC 1946 at [19]- [20].

[12] See, for example, Victoria Police Force v Police Federation of Australia [2009] AIRCFB 146; (2009) 178 IR 275 at [13]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash [2024] FWCFB 396 at [16].

[13] Clause 17.4(c) and 17.5 of the Agreement.

[16] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [46] and [48]-[49] (Gageler J); Rail Commissioner v Rogers [2021] FWCFB 371 at [61]; FreshFood Management Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2023] FWCFB 97 at [29]; Clinical Laboratories Pty Ltd T/A Australian Clinical Labs v Health Services Union [2024] FWCFB 296 at [18].

[17] James Cook University v Ridd [2020] FCAFC 123, (2020) 278 FCR 566 at [65] and the authorities cited therein; Workpac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131 at [197] and the authorities cited therein.

[18] Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495 at [17] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); Hempel (Wattyl) Australia Pty Ltd v United Workers' Union [2024] FCAFC 298 at [64]- [66] (Rangiah, Snaden and Abraham JJ).

[19] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 379 (French J).

[21] Including by reference to the functions of the board of a public health service listed in s 65S(2)(b) and (d) of the Health Services Act 1988 (Vic).

[22] [2024] FWC 1946 at [14].

[23] Health and Allied Services - Public Sector - Victoria Consolidated Award 1998, clause 17.1.

[24] Health and Allied Services - Public Sector - Victoria Consolidated Award 1998, clause 2.1.18 and 2.1.19.

[25] Health Services Union of Australia - Health and Allied Services - Victorian Public Health Multi Employer Certified Agreement 2002-2006, clause 26.2.

[26] Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Health - Multi Employer Certified Agreement 2006-2009, Appendix B - Instrument and Theatre Technicians.

[27] Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2009-2011, clause 9 of Schedule D.

[28] Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015, clause 11.

[29] Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015, clause 11.4 and 11.7.

[30] Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020, clause 10.2 of Schedule 2D.

[31] [2024] FWC 1946 at [19].

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