Ministry of Health v Health Services Union NSW

Industrial Relations Commission (NSW)|2018-08-03|Before: Mr J

Mr J Fox with Ms S Harper (Respondent) File Number(s): 2018/00188429

DECISION

On Monday 18 June 2018, the Ministry of Health ("Ministry") filed in the Office of the Industrial Registrar a notification of an industrial dispute pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"). The notification was made in response to an apprehended threat of industrial action by members of the Health Service Union NSW ("HSU"). The threatened industrial action was in the form of bans by Patient Transport Officers ("PTOs") on cleaning patient transport vehicles after the transport of infectious patients. The threatened work bans were to commence on Tuesday 19 June 2018. These bans were in response to a decision made by the Ministry to cease paying PTOs the allowance provided for in clause 32, Infectious Cleaning, of the Health Employees' Conditions of Employment (State) Award ("Conditions Award").
Clause 32 of the Conditions Award is in the following terms: 32. Infectious Cleaning An allowance as set in Item 47 of Table 1- Other Rates and Allowances, of Part B, Monetary Rates, per shift or part thereof, is to be paid to employees who elect to and, in fact, perform cleaning duties in infectious areas where barrier nursing is being carried out. The allowance will also be payable to employees, who, in any shift, assist in the lifting and/or transporting of infectious patients. Employees are to be given the option of working in the infectious area. In the event of employees declining to work in the infectious area, hospitals are to seek guidance from the employer. Hospitals are to give written instructions on hygiene techniques and infection to employees who may be liable to work in infectious areas. Such instructions should be given to existing employees as soon as possible and to new employees at the point of engagement. In addition, supporting oral instructions should be given to relevant employees whenever a patient is admitted to hospital with a suspected or confirmed infectious condition and to those employees who work regularly in designated infectious areas. The instructions given to employees should be in such a manner as to remove any fears that the employees may have, and to give them an understanding of the methods of the spread of disease. The instructions should include the following subject matters: (a) Mode of transmission - 1. Droplet Infection 2. Faecal-oral route 3. Blood 4. Fomites 5. Discharges - Secretions 6. Urine (b) Disease not transmissible from person to person (c) Degree of communicability (d) Period of communicability (e) Personal hygiene (f) Protective clothing (g) Barrier nursing (h) Immunity - naturally acquired; - immunisation; (i) Cleaning methods which minimise spread of infection. As it is essential that the instructions be beneficial to the employees, simple language should be used which can be easily understood by them.

Previous proceedings

On 20 October 2015, the HSU filed a notification in the Industrial Registry of an industrial dispute pursuant to section 199 of the Act. The question, dispute or difficulty was described in the following terms: Local Health Districts (LHD) are interpreting and applying the "Infectious Cleaning" Allowance [the Allowance] described in the Health Employees' Conditions of Employment (State) Award [the Conditions Award] provisions for infectious cleaning allowance in different ways. The inconsistency in how the qualification for payment of the Allowance is met is causing confusion and creating inequality across the industry. The Allowance is described in clause 32 Infectious Cleaning of the Conditions Award. The clause, in part, states: An allowance as set in Item 47 of Table 1 - Other Rates and Allowances, of Part B, Monetary Rates, per shift or part thereof, is to be paid to employees who elect to and, in fact, perform cleaning duties in infectious areas where barrier nursing is being carried out. The allowance will also be payable to employees, who, in any shift, assist in the lifting and/or transporting of infectious patients. The clause does not list any exclusions. The clause does not restrict claiming for the Allowance to be restricted to cleaning duties were barrier nursing is being carried out. The Health Services Union seeks the assistance of the NSW Industrial Relations Commission, through the calling of the Public Health Industrial Committee, to clarify the conditions under which an employee is eligible for payment of the Allowance.
The matter was initially allocated to Commissioner Stanton who conducted a series of compulsory conferences throughout 2016. However, conciliation was ultimately unsuccessful and the parties remained in dispute as to the classifications of employees which were entitled to be paid the allowance. On 9 September 2016 Commissioner Stanton issued a certificate of attempted conciliation.
The matter was reallocated to Commissioner Newall for arbitration. In accordance with the directions made, the parties filed and served written submissions and witness statements.
Commissioner Newall conducted a hearing over two days, 20 and 21 June 2017, during which he received witness statements and heard evidence from HSU witnesses employed in the classifications of Radiographer, Chief Nuclear Medicine Technologist/Sonographer, Allied Health Assistant, Technical Assistant and Acting Senior Security Officer. Witness statements were also admitted into evidence, without objection, from employees in the classifications of Wardsperson, Technical Assistant and Cleaner, although I note that the classification of "Cleaner" is not one that appears in any relevant award.
The Commissioner also received into evidence a witness statement and heard oral evidence from Mr Gregory Driver, Industrial Relations Advisor of Corporate Programs at eHealth, a division of the NSW Health Service. Mr Driver outlined the history of the infectious cleaning allowance. That history included the transcript of dispute proceedings on 6 September 1979 before McClelland J, during which the representative of the Health and Research Employees' Association, the predecessor to the HSU, advised his Honour that the classifications of employee who were being required to clean infectious areas were "female domestic staff, male porter cleaners, wardsmen and surgical dressers…".
Mr Driver's evidence also dealt with an agreement reached between the parties, following the dispute proceedings before McClelland J, that an infectious cleaning allowance would be introduced. The initial Health Commission Circular, dated 12 May 1980, advised hospitals of the new allowance. The history also included an award application by the union before the Public Hospital Employees (State) Conciliation Committee, which included a claim that the infectious cleaning allowance be paid to any employee who elected to, and did in fact, carry out work in infectious areas. In his decision of 9 September 1982, Conciliation Commissioner Cansdell determined that the Hospital Employees' Conditions of Employment (State) Award be varied to include a clause based on the terms of the Health Commission Circular of 12 May 1980 and that the "provision relating to 'cleaning' in infectious areas will also apply to employees required to lift and transfer infectious patients". The clause, which was then inserted into the award, contained the term "transport" instead of the term "transfer" and the provision has remained essentially in the same terms as those set out at paragraph 2 above since that time. I note that the classification of "Patient Transport Officer" did not appear in any relevant award at the time when the infectious cleaning allowance was first introduced into the Conditions Award.
The Ministry also called Ms Jo Tallon, Clinical Nurse Consultant/Manager Infection Prevention and Control Unit, Westmead Hospital, to give evidence and also tendered into evidence, without objection, a number of other witness statements.
It was part of the Ministry's case before Commissioner Newall that clause 32 of the Conditions Award was wholly obsolete because "barrier nursing" is no longer practised in public hospitals, but has been replaced with what were described "additional precautions".
In opening the case for the HSU, Mr Brendan Edghill stated: The amounts, if we are correct Commissioner, would also be payable to the classifications such as patient transport officers, provided they perform the relevant duties. We don't have a witness from that classification but the argument is the same we say. It was submitted on behalf of the Ministry in the proceedings before me that, throughout the hearing before Commissioner Newall, the HSU made submissions in relation to PTOs. This submission was plainly wrong. Apart from this single mention by Mr Edghill, the classification of PTO was not referred to again in the proceedings and no evidence of the work performed by employees in that classification was placed before Commissioner Newall.
At the conclusion of the second day of the hearing, Commissioner Newall handed down a recommendation to the parties, part of which is set out below: As I say I formally reserve my decision and I will give a decision on the matter if I am obliged to and I have heard everything and have all the evidence I need to make that decision but before that occurs I wish to make a recommendation and I hope the parties will act upon it. I will go so far as to say, to make my position quite clear, that I make this recommendation that I am about to make because I think it has a capacity to lead to a fairer outcome, and I am speaking exactly about my concern that this is a case about payments to, in many cases, lower paid workers than if the matter is formally decided as an interpretation point which is the case that has been run before me. …………………… First, in my view the argument of the clause is in its whole obsolete because there is no such thing as "barrier nursing" anymore and does not convince me. I rely on a number of cases including the High Court decision in Aberdare Colliery to adopt the view that the award, like an act, is always speaking that in this case additional precautions are properly understood as being the successor within the meaning of the award clause to barrier nursing. If that is so, then the award clause continues to stand and it does provide that certain employees are to be paid the allowance contained in the schedule in certain circumstances and I think there are such employees and there are such circumstances. The question is of course, which employees in which circumstances? Remembering, I say again, that I can properly have regard to the intentions of those framing the award and I have, by both sides, been helpfully taken to its history. Several things about the award clause are in my view sufficiently clear. First of all, the allowance was introduced into the award in the first place to compensate cleaners. From all the material it is perfectly apparent that that was so. Later, after a period of a year or so, when it applied only to cleaners, it was extended to be paid to those who were required to lift or transport patients who should now be regarded as what is called "infectious patients". It is sufficiently clear that the allowance was always intended to be paid and the award clause provides for it to be paid to those who were employed as cleaners and those who were employed to, as a part of their duties, lift and transport patients. ………………….. More than that, it is my view, that the history as well as the actual wording of the clause itself, makes it sufficiently clear the award clause was never intended to be and did not but certainly was never intended to be by the framers of the award who after all were the HREA, the predecessors of the HSU and the predecessors of the Ministry, that the allowance to be paid to persons such as nuclear medicine technologists interalia. It was I think relevantly said to have to be explained in words of simple language to persons who are going to elect to go and do the work. It was on its face, so far as it goes to cleaning, payable to those persons who might elect to do cleaning work, that means, that it is not intended and was not intended and it does not apply to employees who would do that as part of their required duties and as to the transporting and lifting of patients it was intended to - it is clear from the submissions put to the Commission which are the submissions on which the Commission then ruled in making the award clause, it was intended to apply towards them and porters, that was expressly put to the Commission in respect of a lifting allowance by Harrier (HREA) in May 1982. Now I do not know exactly who receives the allowance now but I have become aware from the evidence in these proceedings that there are persons who are receiving it now, to whom, in my view, that the allowance is on any proper construction of the award not payable. I say this, it certainly, the award clause does not contemplate and does not mean that the allowance should be paid to any kind of clinical professional at all, it is not to be paid to anybody who would do the cleaning or the lifting as part of their clinical functions. ………………… I have referred twice in other effect that I am well aware that some of the employees receiving the allowance are lower paid workers, I do not wish to see those kinds of workers having their wages pared back by the outcome of this case and that is partly why I have taken the step of making the recommendation under s 136(1)(a) that I am now making and in the light of what I have just said the recommendation in its terms is this: As I have said I formally reserve my decision and I will give it if I need to do so but before I hand down that judgment, I recommend that the parties confer in an attempt to devise a consent variation to the award. The present clause has now given rise to disputation and it refers to circumstances that no longer apply, "election" and "barrier nursing", the clause warrants updating. In inviting the parties to confer to see if they can devise a consent variation to the award, I emphasise two things. The award clause I invite you to attempt to formulate is not intended to go beyond the parameters of the clause as I presently read it to be. That is, it is intended to provide for an allowance to be paid to cleaners and persons who are employed, as a part of their required duties, to lift and transport patients. That last point I think is made abundantly clear if it were not clear before from the submissions put before Commissioner Cansdell by HREA and also by the material contained GD15, the letter from the Commissioner and the reply to the union in November 1983.
As it transpired the dispute was not settled on the basis of the recommendation made by Commissioner Newall and, on 21 February 2018, the Commissioner handed down his decision in in Health Services Union NSW v Ministry of Health; re infectious cleaning allowances ([2018] NSWIRComm 1009) in which he interpreted the scope and application of clause 32 of the Conditions Award. Extracts from that decision are set out below: Consideration 14 Firstly, I expressed the view in the recommendation I made that the words 'barrier nursing' which was a term of art at the time the award was made, are now properly read to apply to circumstances where 'additional precautions,' the present term of art to describe essentially the same clinical process. The Ministry's submission - put, I think, faintly - that the clause is obsolete and does not apply to any circumstance, falls away. The allowance is certainly still payable. The question is, to what classification of employees in what circumstances? 15 The answer to that in my view is to be found from a reading of the plain words of the clause in the context of all of the surrounding circumstances which were known to the parties at the time the document was created, as it was held in SDAEA v Woolworths cited above. 16 The award clause, not uncommonly for award clauses of this kind, had its genesis in an industrial dispute. The history of the clause was helpfully and comprehensively set out in evidence given by Mr Gregory Driver, who has been engaged in various positions in the industrial relations elements of the Ministry of Health, in its various forms, since 1972. I note that Mr Driver was directly involved in the dispute at that time, including by appearing before the Commission in dispute proceedings, and was then involved in the insertion of the clause with which this decision is concerned into the award. 17 Mr Driver's evidence can be summarised relevantly as follows. In August 1979 a dispute arose concerning the cleaning of areas where there were what were described as infectious patients. Bans were placed by members of the then-industrial association, the Health and Research Employees' Association ('HREA') on carrying out cleaning in those areas. The State Secretary of HREA advised the Ministry that "it is not part of the duties of the current classifications in our awards to perform cleaning and disinfection in such areas". 18 The classifications contained within the awards to which HREA was then a party, as the Commission was informed in proceedings before it in September 1979, were "domestic staff, male porter cleaners, wardsmen and surgical dressers." As counsel for the Ministry emphasised in the present proceedings, it was not a ban on cleaning medical equipment or the provision of clinical services. 19 As an outcome of the dispute proceedings the Ministry wrote to HREA proposing that an allowance be paid to employees, members of HREA, "who may be required to, and in fact do, carry out cleaning work in infectious areas where barrier nursing is being carried out." That is, I observe, the allowance which is under consideration in this dispute. 20 HREA responded in writing accepting that proposal, subject to the proviso that there be an election to work in those areas. That is, a distinction was expressly drawn between employees who elected to perform cleaning work in those areas and other employees who worked in those areas, including any cleaning that they might carry out, as a matter of course. 21 A circular was then issued by the Ministry on 12 May 1980 which contained essentially the terms of the award provision as it exists today, providing for the payment of an allowance. The award provision itself was inserted in 1982. In the proceedings before Conciliation Commissioner Cansdell in May 1982 which led to the making of the award, the advocate appearing for HREA pressed that the allowance, already payable by virtue of the existing circular, be extended so as to include all employees who perform any work in areas where there are infectious patients. That extension of the allowance was opposed by the Ministry. 22 In the Conciliation Committee's decision handed down on 9 September 1982, the Committee held that "the provisions relating to "cleaning" in infectious areas will also apply to employees required to lift and transport infectious patients." The broader extension of the allowance sought by HREA, to all employees performing work in such areas, was not granted. 23 That history all points in one direction; that the allowance was created expressly to be paid to cleaners who elected to work in areas where infectious patients were to be found, and was then expressly extended by decision of the Commission beyond persons who elected to perform cleaning in those areas to those employees within HREA's coverage required to lift and transport infectious patients, that is, porters and wardsmen. 24 That history is entirely consistent with the ordinary and natural meaning of the words in the clause. The clause was intended to, and does, create an entitlement to an allowance for persons in the classification of cleaner, wardsman and porter, or their equivalent in title in today's award, in circumstances where they elect to clean infectious areas, or relevantly are required to lift and transport infectious patients. The award clause on any reading of its plain words creates no entitlement to the payment of the allowance to security officers, as argued by the notifier, nor to persons employed under the Medical Radiation Scientists (State) Award. Demonstrably it does not extend to clinicians of any sort. That is clear from a range of matters, not least the provisions of the award clause that the staff performing the cleaning were to have clinical concepts explained to them in simple language they could understand. A provision of that nature could not possibly apply to persons who are by the nature of their training and skill aware of those matters. 25 Equally, it is clear on the plain words of the clause, as well as the history, that the clause was never intended to, and does not, provide for payment of an allowance for persons who may be obliged, as a non-elective part of their duties, to clean a piece of equipment, such as, for example, a radiographer. The salary levels paid to clinicians who are required to come into contact with infectious patients or work in areas where they are to be found, or clean equipment used in their treatment, already comprehend the fact that they have no election in the performance of these duties. 26 In this context it is proper to have regard to the fact that the Commission's practice in making awards has consistently been to provide for an allowance, which is by its nature an incidental payment, for performance of tasks outside the employee's usual run of duties, not those which fall within those usual duties:. Re Painters (State) Award 1964 AR 204 at 206. An employee who ordinarily as a part of their duty comes into contact with such a patient, has to move or lift them, or has to clean a piece of equipment in an area where such patients are treated is simply not entitled to an incidental allowance for doing so. Again, it is a part of the job for which they are already paid. Conclusion 27 Clause 32, correctly read, provides for an allowance, which is to be found in Table 1 of part B of the Award, to be paid to cleaners who elect to perform cleaning work in areas where special precautions in relation to patients are taken. The allowance has, since 1982, also, by effect of a decision of the Commission, been payable to porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients. The allowance is not payable to any other classification of employee. So far as it has been or is being paid to any other classification of employee than those I set out above, it is being paid in error. The payment should cease. As the award provides absolutely no entitlement to payment of the allowance to other employees, it would not be appropriate to maintain payments of the allowance to them, whether by way of 'grandfathering' or otherwise. 28 I observe that as far back as 2016, in conciliation proceedings before Stanton C, the union was warned that to press this dispute to arbitration, seemingly on behalf of some radiographers, might well have negative consequences for its members; indeed the union was expressly invited by Stanton C in June 2016 to rethink its position. As my recommendation set out above makes clear, I expressed the same view. Once they are pressed to arbitration, award interpretation cases must be decided according to law, as Madgwick J made very clear in Kucks' case, set out above. 29 I recommend, however, pursuant to the Commission's powers under s.136 of the Act, that while the payments to classes of employees other than those identified above must cease, there be no attempt by the Ministry to recover monies paid in error to employees up to the end of the pay period in which the date of this decision falls.
The HSU did not appeal the decision of Commissioner Newall.
I made it clear to the parties at the outset of the hearing before me that I was not sitting on some sort of quasi appeal from the decision of Commissioner Newall and that, in the interests of comity, I would not be making any decision which was contrary to his decision. However, with the greatest of respect to him, it is not entirely clear to me precisely what it was that the Commissioner actually decided.
At paragraph 23 of his decision, the Commissioner refers to "cleaners who elected to work in areas where infectious patients were to be found…". He again refers to the "classification of cleaner" at paragraph 24 and to "cleaners" at paragraph 27. The problem with this is that none of the relevant awards at any relevant time contained the classification of "cleaner". At the time when the infectious cleaning allowance was first introduced by way of the Health Commission Circular in 1980, the Hospital Employees' (State) Award contained the classifications of "Ward Assistant", "Maid" and "Porter/Cleaner", which were the classifications primarily responsible for the performance of cleaning duties in public hospitals. The classification of "cleaner" was not contained in this award. In 1981 the award was varied by the creation of the classification of "Hospital Assistant Grade 1", which absorbed the previous classifications of "Ward Assistant" and "Maid", amongst others. The classification of "Hospital Assistant Grade 2" was also created, which absorbed the classification of "Porter/Cleaner", amongst others. It may be that the Commissioner's repeated references to "cleaners" was as a consequence of the tender into evidence by the HSU of the witness statement of Mr Michael Wyatt, who stated "I am currently employed as a Cleaner at Nepean Hospital". As stated previously, there is no such classification in any relevant award.
It is clear from the decision of Commissioner Newall that he has determined that the allowance is not payable to "security officers", "persons employed under the Medical Radiation Scientists (State) Award" or to "clinicians of any sort" (see paragraph 24 of the decision). He also determined that the allowance was not payable to "persons who may be obliged, as a non-elective part of their duties, to clean a piece of equipment, such as, for example, a radiographer" (paragraph 25). The Commissioner did have before him evidence of the work of persons employed within these classifications of employee.
The Commissioner exposed his reasoning in relation to "clinicians" at paragraphs 24-26 of his decision. He took into account that such employees, by the nature of their training and skill, are aware of matters such as the clinical concepts which clause 32 of the Conditions Award requires to be the subject of written instructions to employees who are entitled to receive the allowance. The Commissioner also stated that the salary levels paid to "clinicians" who are required to come into contact with infectious patients, or who work in areas where they are to be found, or who clean equipment used in their treatment, already comprehend the fact that they have no election in the performance of these duties.
The Commissioner's reasoning in relation to "security officers" is not so apparent on the face of his decision and I note that the rate of pay for this classification is not significantly higher (approximately 1.33%) than the "thereafter" rate paid to Wardspersons, a classification which Commissioner Newall determined was entitled to be paid the allowance when, in any shift, the Wardsperson assists in the lifting and/or transporting of infectious patients, but is significantly lower than the rates of pay available to "clinicians".
In addition to the evidence of "clinicians", the Commissioner had before him evidence of the work of Technical Assistants and Allied Health Assistants. Although these classifications are not specifically referred to in Commissioner Newall's decision, it may be assumed that, on his interpretation of clause 32 of the Conditions Award, the allowance would not be payable to employees in those classifications.
The Commissioner's observation, at paragraph 26 of the decision, that an employee who ordinarily, as part of their duty, comes into contact with an infectious patient, has to move or lift them, or has to clean a piece of equipment in an area where such patients are treated, is not entitled to an incidental allowance for doing so as it is a part of the job for which they are already paid, is somewhat perplexing in the context of this matter. Undoubtedly there are Hospital Assistants Grade 1 and 2 and Wardspersons who would only rarely come into contact with infectious patients and be paid the allowance on those occasions. On the other hand, depending on the area of the hospital where the employees are working, there are just as likely to be Hospital Assistants Grades 1 and 2 and Wardspersons who clean in infectious areas, or who assist in the lifting and/or transporting of infectious patients, on a regular, if not daily basis, and are paid the allowance for each shift they work when this occurs.
At paragraph 27 of his decision, Commissioner Newall notes that the allowance is to be paid to "cleaners who elect to perform cleaning work in areas where special precautions in relation to patients are taken". The Commissioner also notes that the allowance "has, since 1982, been payable to porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients". He then states that the allowance "is not payable to any other classification of employee". The question remains, however, as to what are the "equivalent classifications in the award".
Following are the definitions of the classifications which the Ministry concedes are entitled to be paid the allowance pursuant to Commissioner Newall's decision, together with the weekly rates of pay as at 1 July 2017: Hospital Assistant - (a) Grade I means an employee appointed as such who is required to perform general cleaning duties and other duties of a house-hold-chore type, excepting those specified in the definition of Hospital Assistant, Grade II. Without limiting the generality of the foregoing, it shall include duties traditionally associated with the former classifications of Ward Assistant (save as to those duties specified in the definition of Hospital Assistant, Grade II), Maid, Seamstress, and/or Female Attendant. $886.40 (b) Grade II means an employee, male or female, appointed as such who is required to perform, in addition to the duties appropriate to a Hospital Assistant, Grade I, duties such as high cleaning, outside cleaning, stripping and/or sealing of floors, portering of patients and/or heavy equipment, etc, loading and/or unloading of commercial-type washing machines, cleaning of tooth and vomit bowls, sanitising of bed pans and other equipment, the cooking and/or preparing of light refreshments (e.g., eggs, toast, salads), making unoccupied beds. Without limiting the generality of the foregoing it shall include duties traditionally associated with the former classifications of Dressmaker, Kitchenman, Laundry Employee (male), Laundry Employee-Female, Porter (all grades), Porter/Cleaner (all grades), Lift Attendant, Laboratory Attendant-Male, Attendant-Vehicle Parking, General Useful, Incinerator Attendant, Gardener's Labourer, General Reliever (male). $906.80 Wardsperson means an employee who is required to undertake limited duties associated with the care of patients such as pre-operative shaves, routine enemata, bathing of patients, general assistance in wards and cleaning duties. $939.80….1st year $946.80….thereafter
It is not clear from Commissioner Newall's decision whether the classifications of Chief Wardsman ($989.40….1st year; $997.70….thereafter) and Senior Chief Wardsman ($1,017.80….1st year; $1,025.10….thereafter) are entitled to be paid the infectious cleaning allowance. When I put it to counsel for the Ministry, during the hearing, that I didn't see anything in Commissioner Newall's decision that says the allowance would only apply to the base grade Wardsperson, rather than to the more senior classifications, no issue was taken with that proposition. It would seem an odd result if it were otherwise. A Chief Wardsman working side by side a Wardsperson, both on the thereafter rate, in a non-infectious area of a hospital for a week (Monday-Friday), would receive a margin for seniority of $50.90 or 5.38%. If the same two employees worked together in an infectious area, and only the Wardsperson was paid the allowance, the margin in favour of the Chief Wardsman would be reduced to $22.55 or 2.38%, which would be a strange outcome, given that both employees would be working under the same conditions in either scenario.
In my opinion, the Commissioner's reference, at paragraph 27 of his decision, to "cleaners who elect to perform cleaning work in areas where special precautions in relation to patients are taken", bearing in mind that there is no such classification of employee in any relevant award, and his reference to "porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients", have to be construed by reference to the nature of the work being performed by employees in the classification under consideration, rather than just by reference to the classification title.

Patient Transport Officers

"Patient Transport Officer" was a classification first introduced into the Operational Ambulance Officers (State) Award ("Ambulance Award") from 6 February 1998. That award contained no allowance for assisting in the lifting and/or transporting of infectious patients. Employees covered by the Ambulance Award work in NSW Ambulance. The Ambulance Award contains the following definitions and rates of pay as at 1 July 2017: (i) Trainee Patient Transport Officer means an employee who is undertaking the necessary and relevant training and work experience as determined by the Service to become a Patient Transport Officer and who is appointed to an approved Trainee Patient Transport Officer position. This category of employee will be involved in routine and non-emergency patient transport utilising basic life support skills. Inter alia, this category of employee will receive training and certification in occupational health and safety, ambulance first aid, driver training, patient handling, oxygen administration, equal employment opportunity, anti-discrimination and anti-harassment. (ii) Patient Transport Officer means an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Patient Transport Officer and who is appointed to an approved Patient Transport Officer position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for Patient Transport Officers as determined by the Service. This category of employee will be involved in routine and non-emergency patient transport utilising basic life support skills. This category of employee will not be utilised to crew ambulances engaged in emergency/casualty response. Provided that such an officer shall be required to undertake and successfully complete further instruction/in service courses and certification examinations as required by the Service every three years. The parties agree that this classification will remain a source of alternative duties for injured officers requiring rehabilitation as a result of workplace injury. PTO $993.20….1st year $1,037.50..2nd year Since September 2008, the Ambulance Award has not contained a separate rate of pay for Trainee PTOs
In 2004, the classification of PTO was also introduced into the Health Employees' (State) Award. PTOs covered by that award worked in LHDs and were entitled to be paid, and were paid, the allowance contained in clause 32 of the Conditions Award for shifts during which they assisted in the lifting and/or transporting of infectious patients. The definition of Trainee PTO and PTO in the Hospital Employees' (State) Award, and rates of pay as at 1 July 2017, are as follows: Trainee Patient Transport Officer - means an employee who is undertaking training and workplace mentoring in order to successfully complete the requirements for appointment to a 'Patient Transport Officer' position. Patient Transport Officer - means an employee who has successfully completed the requirements for appointment as a Patient Transport Officer and who has been appointed as such. A Patient Transport Officer is required to have completed training in, and to undergo any mandatory periodic refresher training required, in the following: Advanced Cardio Pulmonary Resuscitation (CPR), Gueddels Airways, Basic life support skills, Advanced first-aid, Patient handling and lifting techniques, Driver training, Oxygen administration, and Transport and handling of specialised equipment (e.g. cardiac defibrillators). The duties of a Patient Transport Officer include the routine and non-emergency transportation of hospital patients utilising basic life support skills. Transportation can include single driver transports (no escort if appropriate), or transportations with an appropriate escort. The decision on whether or not a nurse accompanies a patient is made by the relevant Nurse Unit Manager. The employer and Union shall consult, monitor and review the operation of this classification. In the case of an emergency arising during the course of a non-escorted transportation, the Patient Transport Officer is expected to apply the procedures from the training referred to above, and in the case of an emergency arising during an escorted transportation, to assist or respond to the direction of the clinical escort in the application of these procedures. A Patient Transport Officer is responsible for maintaining the cleanliness of the vehicle, maintaining appropriate stock levels, for carrying out equipment checks, and other associated duties. $935.10….Trainee PTO $976.80….PTO
Documents tendered by the HSU in the proceedings before me disclosed that, during 2015, there were negotiations between the Ministry and the HSU in relation to the transition of PTOs into Non-Emergency Patient Transport (NEPT) in HealthShare NSW, a division of the Health Administration Corporation. In correspondence from Ms Carolyn Synnott, Associate Director, Workplace Relations of the Ministry, to the HSU dated 20 November 2015, it was proposed that the salaries and conditions of employment for the transitioning employees and new employees would be reflected in an exchange of letters and then formalised by a Determination made under section 116A of the Health Services Act 1997.
The rates of pay proposed for new and transitioning employees were said to be "consistent" with the PTO rates in the Ambulance Award and to "recognise the duties associated with infectious cleaning and nauseous linen and roll up these allowances into the new rate". It was also proposed that the provisions of the Conditions Award would apply, with some specified clauses excluded. Clause 32 was one of the specified exclusions.
All NSW Ambulance PTOs were to be transitioned into NEPT in HealthShare NSW with certain conditions of employment from the Ambulance Award being "grandparented" and others being replaced by certain provisions from the Conditions Award. No reference was made to clause 32 of the Conditions Award being applied to transitioning PTOs.
In relation to PTOs transitioning from LHDs to HealthShare NSW, it was proposed that the provisions of the Conditions Award would apply with some specified exclusions. As already stated, Clause 32 was one such exclusion. Ultimately, not all PTOs employed in LHDs were transitioned to HealthShare NSW.
However, by way of an email dated 21 January 2016 from Ms Marion Szalay, Principal Workplace Relations Advisor, Workplace Relations Branch of the Ministry, to the HSU, which had attached to it a draft Determination to be made under section 116A of the Health Services Act, the following was stated: It is considered that the draft Determination reflects the agreement on wages and conditions for the transition to NEPT arising from meetings between HSU and HealthShare at the highest levels and correspondence between those parties dated 17 December 2015 and 14 December 2015. I wish to highlight two particular issues in the attached Determination that have changed arising from the discussions/correspondence: 1. Nauseous Linen and Infectious Cleaning - the entitlement to claim these allowances has been extended to all PTOs as shown in Schedules 1, 2, 3 and 4 of the Determination.
The "Schedules" referred to by Ms Szalay were actually entitled "Appendix 1-4". Contrary to the submission put by counsel for the Ministry, this email correspondence was not "pre-negotiation correspondence" or "pre-determination correspondence" from the Ministry, rather it reflected the agreement that had reached between the Ministry and the HSU, which followed negotiations between the parties and which reversed the position originally put by the Ministry with respect to the non-entitlement of PTOs to claim the infectious cleaning allowance. The Determination, which was ultimately made under delegation by Mr Trevor Craft, Deputy Director, Workplace Relations Branch of the Ministry, on 1 February 2016, was in identical terms to the draft Determination which was attached to Ms Szalay's email of 21 January 2016.
Appendix 1 to the Determination dealt with new employees and provided that conditions of employment would be in accordance with the Conditions Award except for the paid crib break and certain specified provisions of the Conditions Award which were specifically excluded. Clause 32 was not one of the specified excluded provisions.
Appendix 2 to the Determination dealt with PTOs transitioning from NSW Ambulance and provided that certain specified conditions of employment from the Conditions Award would apply in lieu of, or in addition to, the "grandparented" conditions from the Ambulance Award. Clause 32 of the Conditions Award was one of the specified conditions which was to apply to these transitioning PTOs.
Appendix 3 to the Determination dealt with PTOs transitioning from LHDs and provided that conditions of employment would be in accordance with the Conditions Award, except for the paid crib break and certain specified provisions of the Conditions Award which were specifically excluded. Clause 32 of the Conditions Award was not one of the specified excluded provisions.
In accordance with the Determination, all PTOs employed in HealthShare have been paid the allowance for shifts during which they assisted in the lifting and/or transporting of infectious patients, as were the PTOs who remained employed in LHDs and covered by the Conditions Award.
During the proceedings before me, the Ministry accepted that the Determination made on 1 February 2016 has not been revoked or rescinded and remains in force.
The HealthShare NSW Patient Transport Officers' Salaries (State) Award ("HealthShare Award") was made with the consent of the Ministry and the HSU and took effect from 1 July 2016. Clause 3, Conditions of Employment, of that award is as follows: 3. Conditions of Employment 3.1 The following awards as varied or replaced from time to time shall apply except in so far as any term of any of those awards are inconsistent with this award: Health Employees Conditions of Employment (State) Award, as varied from time to time, except for: Clause 3(xii) and (xiii) - the meal break and tea break provisions do not apply; and Clause 14(i) and (vi) - do not apply, and Health Employees (State) Award as varied from time to time, and, Health Industry Status of Employment (State) Award.
As will be seen from the above, clause 32 of the Conditions Award is not one of the excluded provisions.
The definition of Trainee PTO and PTO in the HealthShare Award, together with the weekly rates of pay as at 1 July 2016 are as follows (PTOs under this award have not yet received a 2.5% increase in pay effective from 1 July 2017): A Trainee Patient Transport Officer is an employee who is undertaking the necessary and relevant training and work experience as determined by HealthShare NSW to become a Patient Transport Officer and who is appointed to an approved Trainee Patient Transport Officer position. This category of employee will be involved in routine and non-emergency patient transport utilising basic life support skills. Inter alia, this category of employee will receive training and certification in work health and safety, first aid, driver training, patient handling, oxygen administration, equal employment opportunity, anti-discrimination and anti-harassment. $969.00 A Patient Transport Officer is an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Patient Transport Officer and who is appointed to an approved Patient Transport Officer position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for Patient Transport Officers as determined by the Service. This category of employee will be involved in routine and non-emergency patient transport utilising basic life support skills. This category of employee will not be utilised to crew ambulances engaged in emergency/casualty response. Provided that such officers shall be required to undertake and successfully complete further instruction/in-service courses and certification examinations as required by HealthShare NSW. $1,012.20
No explanation has been provided to the Commission for the discrepancy in rates of pay for PTOs covered by the HealthShare Award and those covered by the Health Employees' (State) Award.
A Statement of Agreed Facts was tendered in the proceedings before me. It contained the following: 2. Broadly speaking, Patient Transport Officers are required to transport patients (including from hospitals, private residence, nursing homes or other locations) to another location (e.g. another hospital). Patient Transport Officers are responsible for the cleaning of vehicles after patients. 3. 'Transporting' can include collecting a patient (including one with an infectious status) from a ward, moving them to a stretcher, lifting patients, placing them into a vehicle, and driving them to the required location. ………………….. 7. All Patient Transport Officers, like all Health staff, are required to undertake mandatory training in infection control procedures. …………………… 10. Patient Transport Officers are required to clean any shared equipment between each patient use, regardless of their infectious status. In the circumstances of (non-infectious) patients - a neutral detergent may be used when cleaning between patients. Where a patient has an 'infectious status' a hospital grade disinfectant may be required to be used instead. 11. Patient Transport Officers were subject to a Determination which appears at HSU4a.
HSU4a is the Determination referred to at paragraphs 34-44 above.
None of the matters referred to at paragraphs 32-49 above was placed before Commissioner Newall during the previous proceedings.

Submissions of the HSU

In a document filed by the HSU the following submissions were made: PTOs are entitled to the allowance. 4. The HSU submits there are two bases by which the allowance can be found payable to PTOs. 5. First, Determination No 6 of 2016, signed 1 February 2016 (the Determination) fixed the conditions of employment for PTOs. a. The Determination by combination of express term and implied incorporation fixes the entitlement to the payment of the allowance. b. The discussions between the parties was based on a common understanding of the Determination acting to fix the entitlement to the allowance. The Determination was developed in a manner consistent with 116A(3) of the Health Services Act 1997 and should be read as such. c. In the alternative that the Ministry's conduct in the negotiation and making of the Determination are taken to have made a representation on which the HSU was entitled to rely. This was relied on by the HSU. The Ministry is estopped from resiling from that representation. 6. Second, the decision of Newall C (Health Services Union NSW v Ministry of Health; re infectious cleaning allowances [2018] NSWIRComm 1009) at paragraph 27 refers to 'porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport patients.' This should be read to include PTOs as employees eligible to receive the allowance. PTOs are the industrial progeny of these classifications.

Submissions of the Ministry

In its written outline of submissions, the Ministry put the following: 3 The Ministry's position is that: (a) as the decision of Commissioner Newall was not the subject of an appeal, the Commission as currently constituted is bound (by principles of comity) to follow and apply that decision; (b) the decision of Commissioner Newall had the effect of determining that PTOs are not entitled to the payment of the infectious cleaning allowance; (c) the principles arising from Commissioner Newall's decision are also inconsistent with the payment of the allowance to PTOs; (d) the Determination No 6 of 2016 (Determination) does not confer upon the PTOs any entitlement to payment of the allowance. 4 For the above reasons, the HSU's application should be rejected. The HSU's further application as to whether PTOs are required to perform infectious cleaning duties does not arise for the reasons submitted below.
The written submissions then canvassed the decision of Commissioner Newall in detail and the history of the classification of PTO and concluded as follows: PTOs are not entitled to the infectious cleaning allowance 32 It is evident from the above that: (a) Commissioner Newall's decision made it plain that only cleaners, wardspersons or porters, or their equivalent in title, were entitled to the allowance; (b) PTOs are not an equivalent in title to cleaners, wardspersons or porters and are thus not entitled to the allowance. 33 To the extent that the HSU submits that Commissioner Newall's reference to "equivalent" was a reference to other classifications beyond an equivalency in title, the Ministry submits that this is a reading that ignores the Commissioner's full reasons. The Ministry submits that the words "or their equivalent in title in today's awards" is a reference to the classifications such as 'cleaner' being called 'Hospital Assistants' (rather than a Cleaner) in the award. This is clearly what Commissioner Newall had in mind, as explained above. 34 In any event, the Ministry submits that the word 'equivalent' means the same as, rather than, for example 'similar'. The Ministry does not accept the argument that 'equivalent' could mean classifications that have the same 'industrial progeny' of these classifications, and even if that was the case, the 'industrial progeny' of the PTO is based in Ambulance Awards that did not provide for infectious cleaning allowances at all. 35 The functions of a PTO are not equivalent to, and are significantly different to, a cleaner/porter/wardsmen. For example, PTOs require particular educational qualifications, and can be required to transport patients of certain acuity levels, without other medical supervision (which is contrasted to porters where patients are supervised by, for example, by nursing or other clinical staff). 36 It would be difficult to rationalise an argument that Allied Health Assistants, Security Officers and Technical Officers would not be entitled to the allowance but PTOs would. 37 Further, it is plain from Commissioner Newall's decision at [25]-[27] that the allowance is not payable to classifications where employees are required as an ordinary part of their duties to deal with and clean infectious areas/equipment. That is the position with PTOs who are required to do these very things. 38 The Ministry submits that the recommendation of Commission Newall handed down on 21 June 2017 supports the Ministry's interpretation of the decision. For example, at page 3 of the recommendation, Commissioner Newall states "I make this recommendation that I am about to make because I think it has a capacity to lead to a fairer outcome, and I am speaking exactly about my concern that this is a case about payments to, in many cases, lower paid workers than if the matter is formally decided as an interpretation point which is the case that has been run before me.." Clearly, the Commission appeared to expressly contemplate that staff other than highly paid workers such as Medical Radiation Scientists may also not be entitled to the allowance. The Determination 39 In relation to the HSU's inference that the Determination provides an entitlement to the allowance, the Ministry responds that the Determination (which was made prior to the decision of the Commission in this matter), refers merely to the award provision of the allowance. It was not intended to provide an entitlement in circumstances such as where the award does not. 40 To this extent, the Ministry disputes the HSU's argument that the Determination 'fixed' the allowance. Should that have been the case, then there would have been no need to refer to the Award. 41 The Ministry submits that the HealthShare NSW Patient Transport Officers' Salaries (State) Award supersedes the Determination. 42 The Ministry submits that there is no basis to continue to pay the allowance "until final determination the allowance (sic) should be paid to PTOs". The Ministry advised the HSU of the intention to implement the IRC's decision and has already significantly delayed implementation to allow consideration of PTOs. Performance of duties by PTOs 43 The Ministry submits there is no basis to suggest that PTOs should not be required to perform infectious cleaning duties. It is noted that the 'infectious cleaning' duties can require a different product to be used than when performing ordinary cleaning duties. That is, the method and duties are often the same, the products used may differ. Conclusion 44 The HSU's application should be dismissed.

Principles governing award interpretation

Section 175 of the Act 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).
When exercising its function under section 175, the Commission is obligated to apply well settled principles which govern the interpretation of industrial instruments.
In Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales ([2004] NSWIRComm 85) a Full Bench of the Commission (Wright J, President; Walton J, Vice-President; McLeay C) stated: 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.
This passage from the Full Bench's decision was specifically endorsed by a subsequent decision of a Full Bench (Boland J, President; Walton J, Vice-President; Sams DP) in 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 it was stated as follows: 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) 147 CLR 297 at 321 (per Mason and Wilson JJ).
In the present matter, the focus of the interpretive task is on the words "The allowance will also be payable to employees, who, in any shift, assist in the lifting and/or transporting of infectious patients".

Are Patient Transport Officers entitled to be paid the allowance?

The simple answer to this question is yes. Clause 32 of the Conditions Award is poorly drafted. No classification of employee is either specified as being entitled to be paid the allowance or, on the other hand, excluded from being paid it. This has led to the past practice of the allowance being paid to employees in classifications which, as Commissioner Newall found, were never intended to be the recipients of it, such as "clinicians of any sort".
However, putting aside the question of whether PTOs qualify for payment of the allowance for cleaning the patient transport vehicle after it has transported an infectious patient, the undisputed facts are that PTOs lift and transport patients, including infectious patients. The plain and ordinary meaning of the words "The allowance will also be payable to employees, who, in any shift, assist in the lifting and/or transporting of infectious patients" could not be any clearer. This is precisely what PTOs do. They are entitled to be paid the allowance when they assist in the lifting and/or transporting of infectious patients.
I do not regard the previous decision of Commissioner Newall as a barrier to a determination that PTOs employed under the HealthShare Award and under the Health Employees' (State) Award are entitled to be paid the allowance under clause 32 of the Conditions Award when they perform the work described in that clause, for the following reasons: 1. Commissioner Newall had no evidence before him, and no submissions were made to him, about the work of PTOs, in particular, their involvement in assisting in the lifting and/or transporting of patients, including infectious patients. 2. The Commissioner was not made aware of history relating to the classification of PTO, in particular, the deliberate decision made by the Ministry in 2016, following negotiation and agreement with the HSU, to extend payment of the allowance to new employees and to PTOs transitioning to HealthShare NSW from NSW Ambulance, where there had been no entitlement to be paid it, and to retain the allowance for PTOs transitioning to HealthShare NSW from LHDs, where there was an award entitlement to be paid the allowance. 3. The reasoning of Commissioner Newall in relation to "clinicians", in particular, the high level of salaries paid to them and the nature of their training and skill cannot be applied to PTOs. The situation with Security Officers is a little more difficult to reconcile but, clearly, in relation to the task of assisting in the lifting and/or transporting of patients, including infectious patients, the work of PTOs is much more closely aligned to that of Hospital Assistants Grades 1 and 2 and Wardspersons than it is with the work of "clinicians" or with the work of Security Officers. To make the point, two Wardspersons, who lift an infectious patient from a hospital bed onto a trolley and then transport that patient to another area of the hospital, will get paid the allowance without question. On the Ministry's approach, if, on the following day, two PTOs lifted the same patient from the same bed, placed the patient onto their trolley and then transported the patient to another hospital in a patient transport vehicle, they would not get paid the allowance. Industrial instruments should not be interpreted in such a way as to produce such anomalous outcomes. 4. At paragraph 27 of Commissioner Newall's decision, he states that the allowance has, since 1982, by effect of a decision of the Commission, been paid to "porters or wardsmen, or their equivalent classifications in the award, who are required to lift and transport infectious patients". The classification of PTO was not introduced into the Hospital Employees (State) Award until 2004. With respect to the requirement to lift and transport patients, I regard the PTO classification an "equivalent classification" to the classifications of "porters or wardsmen" or, in terms of current terminology, Hospital Assistant Grade 2 or Wardsperson.
The Ministry has complained in these proceedings that the HSU elected not to call any evidence touching on PTOs in the previous proceedings before Commissioner Newall. There is some force in this submission. However, it would be unfair and inequitable for the Commission to make a determination that a particular class of employees, such as PTOs, was ineligible to be paid an allowance to which they were otherwise clearly entitled, simply because the HSU did not place before Commissioner Newall, in the previous proceedings, the material that has been placed before me in the present proceedings.

What was the effect of the Determination made in 2016?

A matter of significant concern to me is the fact that, shortly after the original dispute notification was lodged by the HSU on 20 October 2015 (see paragraph 9 above), the parties were in negotiations in relation to the Ministry's proposal to transition PTOs from NSW Ambulance and from LHDs to HealthShare NSW. Those negotiations resulted in the Determination which is discussed at paragraphs 34-44 above. That Determination does not require interpretation by me. Its meaning and effect is crystal clear. There is no ambiguity. As Ms Szalay stated in her email to the HSU of 21 January 2016, "1. Nauseous Linen and Infectious Cleaning - the entitlement to claim these allowances has been extended to all PTOs as shown in Schedules 1, 2, 3 and 4 of the Determination". This was a reversal of the position which the Ministry originally put to the union in correspondence of 20 November 2015 and followed "meetings between HSU and HealthShare at the highest levels and correspondence between those parties dated 17 December 2015 and 14 December 2015".
Why the history of the Determination was not brought to the attention of Commissioner Newall in the previous proceedings was never satisfactorily explained, but it has been raised in the present proceedings and I do not propose to simply ignore it.
During the proceedings, I raised the issue of the Determination with counsel for the Ministry. The following exchanges occurred: COMMISSIONER: All right, we will resume at 2 o'clock. Mr Shariff, I follow the line of argument that's being put by Mr Fox. The initial proposal, which seems to be set out in HSU 1A, from Ms Sinnett (Synnott) on 20 November 2015, was fairly clear, that these employees, the patient transport officers, would not be paid the infectious cleaning allowance, it would in some way be rolled up into their new rate of pay. That's what's set out at the bottom of page 1. And on page 2 it's specified that it doesn't apply. Then there seems to have been-- SHARIFF: That's in relation to that class. COMMISSIONER: In relation to patient transport officers. ……………………… COMMISSIONER: And then there seems to have been some negotiation, and you have correspondence from Ms Saleh (Szalay), as she then was, saying that the entitlement to claim these allowances has been extended to all PTO's as shown in schedules 1, 2, 3 and 4 of the determination, and that's reflected in each version of the determination that Mr Fox put me through. SHARIFF: Yes. So what is said is, I think in that covering email, is the entitlement to claim the allowance, not the entitlement to the allowance. COMMISSIONER: Well, it's a fairly hollow statement if the entitlement to claim the allowance never arises because these people are said to be excluded from it. SHARIFF: This was being done, with respect, before Commissioner Newall's determination of the matter. …………………….. SHARIFF: Can I just answer the question, because I think I was answering the question. What seems to have been said in the email is the entitlement to claim the allowances, which at that time, I think we've in arguendo said that there might have been a practice in some LHD's or elsewhere, where the allowance was being paid to some, maybe some in all parts, or some in others. So the entitlement to claim the allowance, whatever that was, was being stated with those state of affairs as they all existed. COMMISSIONER: It's being extended to all PTO's. SHARIFF: What is being extended is an entitlement to claim it. And so-- COMMISSIONER: And that claim rejected. SHARIFF: And so the only - in the ultimate determination, the only appendix in which clause 32 is specifically mentioned is that in appendix 2, not in the others. So with respect to the others, you haven't - it is said that the conditions of award applies-- COMMISSIONER: With certain exceptions. SHARIFF: With certain exceptions. If you think you've got a right to claim the allowance, you come along and you claim the allowance. COMMISSIONER: But that's this circular. They're saying you've got a right to claim an allowance that you're not entitled to. SHARIFF: You might have a right to claim overtime; you've got to work the overtime to get it. COMMISSIONER: Yes. SHARIFF: So, that is just saying you have a right to claim the infectious allowance, specifically in relation to clause 32, with all the other appendices, the Health Conditions Award applies with these exceptions, so if you think you can claim the allowance, come along and claim it. In the meantime, Commissioner Newall has made a determination, or resolved a dispute about these very issues. COMMISSIONER: Well, let me just deal with that, because it seems sufficiently clear that the original proposal associated with the transition of PTO's to HealthShare was that they don't get this allowance, they're not entitled to it. That's clearly set out. SHARIFF: What is said is that the wage rates that we are proposing to pay to them will incorporate any-- COMMISSIONER: Yes. That's what's said in that proposal. But then in the one of January-- SHARIFF: For that class of employee. COMMISSIONER: For PTO's. SHARIFF: For new PTO's. What you're referring to-- COMMISSIONER: No, all PTO's, new or transitioning from wherever-- SHARIFF: Which is reflected in-- COMMISSIONER: --were not going to get the allowance. SHARIFF: Yes, that's what's reflected in appendix 1. COMMISSIONER: Yes. But then in HSU 2 (the email from Ms Szalay of 21 January 2016), that position appears to have been reversed, otherwise that paragraph numbered 1 has no meaning. SHARIFF: What is said in HSU 2 is that an offer has been made, acknowledging an entitlement to claim the allowance, not to receive it. To receive it, you have to make good that you have the entitlement to claim it. COMMISSIONER: That, with respect, Mr Shariff, that's just nonsense. You're saying an entitlement to claim something you're not entitled to, as a result of Commissioner Newall's determination. SHARIFF: No, that's not what I'm saying, and that's really not fair. We're dealing with the historical situation that we've got, all right. We know that as a matter of practice throughout the broader health organisation, some people were being paid these allowances, rightly or wrongly, as a matter of error not. COMMISSIONER: Well, let's assume that's right. Let's assume it was a matter of error, and that they were never entitled to it. What Ms Saleh (Szalay) is saying here in this correspondence to the union, that that entitlement will now be extended to all PTO's. SHARIFF: The right to claim it. That's right. That's what she says in the letter. And then the ultimate determinations that are made enshrine that to the extent that it's enshrined for appendix 2, which are the transferring-- COMMISSIONER: From the Ambulance Service. SHARIFF: For Ambulance. In respect to the others-- COMMISSIONER: And on one view, it's enshrined because it's not excluded from the conditions award as some other clauses are. SHARIFF: Sure. COMMISSIONER: Now, I know it's speculation, but if Commissioner Newall had had this material in front of him, the history relating to this particular classification, the outcome might be quite different from what you say it is. SHARIFF: The outcome being what? COMMISSIONER: His determination. You say his determination means no PTO can ever be paid the infectious cleaning allowance. Here's evidence of an entitlement being extended to them to claim it. Now, I can't see Commissioner Newall countenancing a situation where an entitlement to claim something has been extended to a whole classification of employee, and then say, but they're not entitled to it. ………………………… COMMISSIONER: But he clearly interpreted the award based on the history of the provision. This is a fairly significant part of that history, which wasn't before him. SHARIFF: So can I then take that if there is to be some exception on that basis, the question that that then raises is, which of the PTO's was the entitlement then reflected upon. COMMISSIONER: Anyone who, in any shift, lifts and/or transports an infectious patient. SHARIFF: And that's where I think I'm having a disagreement with you. COMMISSIONER: Well, that's what-- SHARIFF: No, what I'm saying to you is that the only part of the determination that expressly recognises, and I think I put a primary view earlier today, which I've dealt with pretty shortly, the only one of the determination, you've got to interpret, if you're differently constituted and dealing with some dispute arising from a determination, which you're not, but the only part of the determination that refers to clause 32 is appendix 2. COMMISSIONER: "This correspondence is extended to all PTO's as shown in schedule 1, 2, 3 and 4." SHARIFF: That is pre-negotiation correspondence, and what I'm saying to you-- COMMISSIONER: Well, the form of the determination as was attached to that letter was the form it was signed in. SHARIFF: As I keep saying, one, it's pre-determination correspondence. Two, to the extent you're going to take it into account as a matter of interpretation, all that we're saying was that the right to claim the allowance would be extended, not that you would get the allowance. COMMISSIONER: That, to me, just strikes me as a non sequitur. I unkindly used the term nonsense before. I withdraw that. But it's certainly a non sequitur to say you can claim something that you're not entitled to, again. SHARIFF: No, I think you are telling me it's nonsense, not a non sequitur, because a non sequitur would be a matter that didn't arise, but I appreciate that, I appreciate you've got a different view on that. COMMISSIONER: And the other thing, too, that I'm concerned about, is that you're asking me to apply a determination made by Commissioner Newall, who had regard to history, as he was perfectly entitled to do, and there was a glaring gap in relation to this particular classification in that history which he was presumably completely unaware of.
The Ministry's position, as emerges from these exchanges, is that the entitlement of PTOs to be paid the infectious cleaning allowance in accordance with clause 32 of the Conditions Award, which PTOs in LHDs were entitled to be paid and were paid, was extended to PTOs, upon their transition to HealthShare NSW from NSW Ambulance, by the Determination. However, at that point, it became only an entitlement to claim the allowance, but not be paid it, even though they were getting paid it from the time they transitioned to HealthShare NSW up until the Ministry's recent decision to stop paying it, which led to the current dispute. Further, the entitlement to claim the allowance, but not be paid it, even though they were being paid it, was effectively snuffed out for PTOs by Commissioner Newall's interpretation of clause 32 of the Conditions Award in circumstances where the Commissioner had not been made aware of the Determination or the history which preceded it and which followed it and had no evidence before him of the work performed by PTOs. These propositions have an almost "Monty Pythonesque" feel about them. Upon reflection, my characterisation, during the proceedings, of the Ministry's propositions as being "nonsense", was a gross understatement.
Other submissions put on behalf of the Ministry in relation to the Determination equally lacked merit.
Counsel for the Ministry put the following submission: SHARIFF: Well, I think as a matter of technicality, the determination hasn't been terminated. But the award has come into operation and the award now covers the subject matter. Now, to be perfectly technical about this, if what our friend says is that there's a class of PTO's who have an entitlement to the infectious cleaning allowance, not because it arises under clause 32 but because the determination recognised such a right-- …then that's probably a right, if it is a right, it's a right that arises under the determination and that's not before you at the moment. The only question is "Is there an entitlement under clause 32?"
Why it was that the Determination was not before me "at the moment" was never explained. The Determination was a critical plank of the HSU's case. I reject entirely this submission of the Ministry.
As set out in the extract from the transcript at paragraph 66 above, at one point, counsel for the Ministry seemed to be suggesting that there was some significance in the fact that only Appendix 2 specifically mentioned clause 32 of the Conditions Award. There is no significance. Appendix 2 covered PTOs transitioning from NSW Ambulance who were to be entitled to conditions in the Ambulance Award "grandparented", plus certain specified provisions from the Conditions Award, including clause 32. Appendices 1, 3 and 4 related to new employees and employees transitioning from LHDs. They were to be covered by the Conditions Award with certain specified clauses excluded. Clause 32 was not one of the specified excluded clauses. In any event, Ms Szalay's covering email made it clear that "the entitlement to claim these allowances has been extended to all PTOs as shown in Schedules 1, 2, 3 and 4 of the Determination". However, on the Ministry's case in these proceedings the concept of an "entitlement to claim" is entirely meaningless because, on its interpretation of clause 32, PTOs do not have, and never have had, a right to be paid the allowance when they claimed it, even though they did claim it and were paid it both before and after the transition to HealthShare NSW.
It was further submitted that, even though the Determination hasn't been terminated, the creation of the HealthShare Award had the effect of "replacing" the Determination. By what legal mechanism this was said to have occurred was never explained. There is no reference in the HealthShare Award to it rescinding and replacing the Determination. If the Ministry's submission is correct, then the "grandparented" conditions from the Ambulance Award, which covered PTOs who transitioned from NSW Ambulance, will have been effectively snuffed out without any notice to, or negotiation with, the HSU. This would seem an odd result, given that these conditions had only recently been negotiated "at the highest levels". The true position is that the Determination and the HealthShare Award stand side by side and continue to remain in force. There is no inconsistency between the two instruments. When the HealthShare Award came into effect from 1 July 2016, the PTOs covered by it continued to claim and be paid the allowance as they had been under the Determination. That remained the case until their employer erroneously ceased paying the allowance based on Commissioner Newall's decision handed down on 21 February this year.
The better view is that, following negotiation "at the highest levels" and agreement with the HSU, the Ministry determined that PTOs employed in HealthShare NSW were entitled to claim and to be paid the allowance when they assisted in the lifting and/or transporting of infectious patients. This constituted recognition by the Ministry that clause 32 of the Conditions Award was properly applied to the classification of PTO and to the work performed by employees in that classification and would continue to be so applied after the transition of PTOs to HealthShare NSW.

Interpretation

Pursuant to section 175 of the Industrial Relations Act 1996 it is determined that clause 32 of the Health Employees' Conditions of Employment (State) Award applies to employees employed as Patient Transport Officers in HealthShare NSW and in Local Health Districts and that they are entitled to be paid the allowance provided for in that clause for any shift during which they assist in the lifting and/or transporting of infectious patients.
I will hear the parties further in relation to the form of any further relief which should be granted as a consequence of this determination. 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: 03 August 2018

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (6)

Cited By (1)