New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District

Background

1. By way of background, the decision at first instance was made in partial resolution to a broader dispute between the parties arising out of an investigation by the Respondent into complaints made against Ms Hannah Mines, Registered Midwife, a member and elected Vice President of the Dubbo Base Hospital Branch of the Appellant. The Appellant sought to ventilate these issues through the notification of two disputes to the Commission.
2. In the first dispute notification lodged on 18 January 2018, the Appellant contended that: 1. Ms Mines was being victimised by the Director of Nursing and General Manager of the Dubbo Base Hospital because of her industrial activities; 2. The Respondent had breached its Policy Directive in investigating allegations made against Ms Mines relating to her conduct in the Palliative Care Unit in that: 1. a copy of the investigation report procured by the Respondent was not provided to her prior to requiring her response to the allegations; and 2. a decision was made as to the outcome of the complaint prior to Ms Mines providing her response. 1. The Respondent had breached the requirement to maintain the status quo in subclause 48(vii) of the Award in continuing the investigation after the issue of whether the Policy Directive required the production of the investigation report became a dispute between the parties. 2. the Respondent had breached its Policy Directive in issuing Ms Mines with a formal warning for breaching a requirement that she keep confidential matters relating to the investigation.
3. The second dispute notification lodged on 23 August 2018 alleged the Respondent: 1. had breached the requirement to maintain the status quo in subclause 48(vii) of the Award by denying Ms Mines the opportunity to take the role of clinical nurse facilitator whilst the investigation was the subject of an industrial dispute; and 2. continued to victimise Ms Mines through the conduct as alleged above.
4. The decision at first instance sought only to determine the issues set out above at paragraph [3] relating to the alleged breaches of the Status Quo Provision of the Award.

Leave to appeal

1. Section 188 of the Industrial Relations Act 1996 ("the Act") is in the following terms: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister.
2. In support of its application for leave to appeal, the Appellant submitted that the matter concerned issues of such importance that leave should be granted in the public interest or that, in any event, leave to appeal should be granted pursuant to the general discretion of the Full Bench because the appeal raises issues of principle appropriate for a grant of leave, including as follows: 1. The appeal raises significant questions in relation to the management of disputes involving any of the thousands of employees covered by the Award and the proper interpretation of the status quo requirement imposed by the Status Quo Provision. 2. The status quo requirement contained in the Status Quo Provision does not appear to have previously been subject of detailed consideration by a Full Bench of the Commission and it is in the public interest that the interpretation of this significant award provision be considered by the Full Bench of the Commission. 3. The decision at first instance gave the Status Quo Provision a narrow and limited reading contrary to the apparent purposes and objects of the provision and would, if followed in other matters, inhibit the orderly resolution of disputes involving employees covered by the Award by permitting an employer to take action which may prejudice the parties to the dispute or render a dispute nugatory. 4. The decision at first instance would, if correct, have resulted in the status quo requirement imposed by the Status Quo Provision applying only to a limited class of disputes which involved some change to an existing procedure or practice of the employer and not to the majority of disputes arising in the workplace.
3. In opposing the grant of leave to appeal, the Respondent submitted that: 1. the appeal is of no utility in that, even if the Appellant was wholly successful in its appeal, there would be no practical consequences for the parties; 2. the appeal does not involve issues of such importance that, in the public interest, leave to appeal should be granted; and 3. the appeal does not raise substantial issues of principle or law having wider implications for the jurisprudence of the Commission.
4. In Secretary, NSW Ministry of Health v Health Services Union NSW [2018] NSWIRComm 1007 the Full Bench (Chief Commissioner Kite SC, Stanton C and Murphy C) set out the following principles governing the grant of leave under section 188 of the Act at [28]: Principles on leave to appeal The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16; 250 IR 412. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. That statement has been approved since in a number of decisions: Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 at [6]-[7]; Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [11]; Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 at [11]. In Wattie, the Full Bench also observed at [12]-[13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State." We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. These principles were recently endorsed in Commissioner of Police v Morris [2017] NSWIRComm 1010 at [6] and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 at [10]-[11]. As no party to the appeal has suggested that the Full Bench should not apply these principles, we propose to apply them.
5. In applying the above principles to the matter currently before the Full Bench, we have decided to grant leave to appeal on the basis that the matter, which is the subject of the appeal, is of such importance that, in the public interest, leave should be granted under section 188 of the Act. We do so for the following reasons: 1. The appeal raises significant questions in relation to the management of disputes involving all employees covered by the Award and the proper interpretation of the status quo requirement imposed by the Status Quo Provision. 2. The status quo requirement contained in the Status Quo Provision has not previously been subject of detailed consideration by a Full Bench of the Commission and it is in the public interest that the interpretation of this significant award provision be considered by the Full Bench of the Commission to provide clarity to workplace participants in the future.

The appeal

1. The appeal proceeded on the basis of the written and oral submissions by the Appellant and Respondent to the proceedings.

Submissions of the Appellant

1. In its submission on the merits of the appeal, the Appellant argued the approach of the Commission to interpreting industrial instruments is well-known, referencing authorities including Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Secretary of the Treasury (2014) 87 NSWLR 41 at [115]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 at [51-[52]; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96]; Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award (2008) 181 IR 245 at [21]; George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-50; Re State Rail Authority Firefighters Award 2001 (2002) 122 IR 13 at [22]-[24]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]; Endeavour Coal Pty Ltd v CFMEU (2007) 161 IR 96 at [44].
2. After setting out a summary of the decision at first instance, the Appellant provided the following with respect to the interpretation of subclause 48(vii)(footnotes omitted): It was accepted below, correctly, that the Association invoked the status quo provision on 5 December 2017 for the purposes of clause 48(vii). The issue between the parties was whether clause 48(vii) had been breached in the circumstances. The submissions of the respondent and the findings of the Commissioner were based upon interpreting clause 48(vii) such that the status quo requirement applied only to a dispute about a change to an existing procedure or practice of the employer and no other dispute. With respect, that interpretation should not have been accepted. The interpretation of the clause must commence with the text, properly understood having regard to the context and purposes of the Award. Clause 48(vii) commences with a clear statement that "the status quo before the emergence of the issue must continue whilst these procedures are being followed." If the clause finished at that point, there would be no doubt as to its meaning. However, the provision continues by providing an indication as to what the "status quo" means for the purposes of the clause. The definition was, presumably, intended to assist in understanding the clause. Regrettably, it has failed in that task and has obscured rather than illuminated the operation of the provision. The second part of the clause indicates that "status quo" means "the work procedures and practices in place: (a) immediately before the issue arose; or (b) immediately before any change to those procedures or practices, which cause the issue to arise, was made." The Commissioner interpreted the clause such that the status quo requirement applied only where there has been a change in work practices or procedures and concluded that the clause requires no more than that the established work practices or the procedures of the employer must continue until the Commission or the parties can resolve that dispute. In particular, the Commissioner concluded that clause 48(vii) has no application where there is a dispute as to whether the employer's procedures, or indeed the Award, are being complied with. Whilst it must be accepted that there is some ambiguity in the provision, a number of textual and purposive considerations tell persuasively against the interpretation advanced by the respondent and accepted by the Commissioner. Firstly, whilst there is no definition of the term "dispute" in the Award, it is clear that the type of dispute to which clause 48 applies is not restricted to a dispute about an employer changing or proposing to change an established or published practice or procedure. Clause 48 applies, in terms, to "any grievances and/or disputes" (clause 48(i)), including a dispute that "relates to an individual nurse or to a group of nurses" (clause 48(ii)). Various other provisions of the Award demonstrate that the type of dispute to which clause 48 applies is broad, including clause 13(xiii) (continuing education allowance), clause 29(I)(ii) (proportion of part-time employees), clause 29(II)(B)(ii) and (viii) (casual conversion), clause 53(IX)(vii) (workload disputes) and clause 57(iv) (contractors and labour hire). If the interpretation advanced by the respondent were correct, clause 48(vii) could potentially apply only to a subset of grievances or disputes to which the procedure in the dispute settlement procedure applies. Indeed, it is likely that only a small proportion of disputes falling within the operation of the clause would be disputes in relation to a decision of an employer to change an established work practice or procedure. Most grievances or disputes are likely to concern individual matters relating to the fairness of the actions of the employer or compliance with existing procedures or practices of the employer or a compliance with an industrial instrument. If the Commissioner's interpretation were correct, no status quo requirement is imposed in relation to those disputes at all despite the fact that the clause compels the Association and an employee to following the disputes settlement procedure. Secondly, the definition in clause 48(vii) indicates that the "status quo" means the work procedures and practices in place either "immediately before the issue arose" or "immediately before any change to those procedures or practices, which caused the issue, was made". If the interpretation adopted by the Commissioner were correct, clause 48(vii) applies only where the dispute concerns a change to the procedures or practices of the employer. That is the circumstance contemplated by paragraph (b) of the definition of the "status quo". That is, paragraph (b) deals with the situation in which there has been a change to the procedures or practices of the employer and provides that, in those circumstances, the "status quo" means the work procedures or practices in place immediately before the change. However, paragraph (a) of clause 48(vii) contemplates that the clause applies not only where there has been a change of some established procedure or practice of the employer. The clause also applies whenever an "issue" has arisen and requires that the procedures and practices in place immediately before the issue arose continue whilst the dispute settlement procedures are followed. If the interpretation adopted by the Commissioner were correct, paragraph (a) of the definition is entirely superfluous and of no effect. Words in a statutory provision, or an industrial instrument, will not be interpreted so as to give them no effect: Commonwealth v Bourne (1905) 2 CLR 405 at 414; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. The inclusion of paragraph (a) to the explanation of the "status quo" irresistibly leads to the conclusion that the interpretation advanced by the Commissioner is wrong. Thirdly, the interpretation advanced by the respondent and adopted by the Commissioner appears to assume that clause (vii) refers to a formal established "Procedure" or "Practice" of the employer. Although the Commissioner did not embrace the examples provided by the respondent, the decision suggests that clause 48(vii) only applies where an employer has made a formal decision to alter a generally applicable practice or procedure. The text of clause 48(vii) does not support that conclusion. The clause merely refers to the work practices and procedures in place before the issue resulting in the dispute had arisen. The clause is wide enough to encompass the work practices and procedures of or applicable to a particular employee not some generally applicable change in practice or procedure. There is no warrant for reading clause 48(vii) in the narrow and limited way proposed by the respondent and adopted by the Commissioner. It is important to remember that the instrument being construed here is an award of the Commissioner intended to govern the relations between employees and employers across New South Wales. Whilst it is correct that the task remains one of interpreting a document produced by others, an award should not be read in a narrow or pedantic manner and meanings which "avoid inconvenience or injustice may reasonably be strained for": Kucks v CSR Ltd (1996) 66 IR 182 at 184; Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award (2008) 181 IR 245 at [21]. Fourthly, the interpretation adopted by the Commissioner runs contrary to the apparent purpose and intent of a status quo provision. Dispute settlement procedures are included in awards to encourage the orderly and fair disposition of disputes and to avoid, if possible, industrial disputation. A status quo provision within a dispute settlement procedure has the obvious purpose of ensuring that, where a dispute arises in the workplace, the position of the parties to the dispute must be maintained and not prejudiced whilst that procedure is being followed. The interpretation adopted by the Commissioner would permit an employer, other than in the case of a formal change to a generally applicable practice or policy, to change the existing arrangements of an employee or employees in a manner that may prejudice or prevent the resolution of the dispute through application of the dispute settlement procedure. The clause would not be interpreted in a manner which would defeat its purpose. This case provides an example. The status quo provision was invoked by the Association on 5 December 2017. The situation at that point in time was that Ms Mines was subject of certain allegations which were (sic) had been subject of investigation, but no findings had been made in relation to the allegations and no determination made in relation to any action to be taken. The substance of the dispute was an assertion by the Association, on Ms Mines' behalf, that the process adopted was unfair and the Local Health District was failing to comply with the Managing Misconduct policy directive. lf the Local Health District was at liberty to proceed with the disciplinary process notwithstanding the dispute, the position of Ms Mines' is likely to be prejudiced and the fair and efficient resolution of the dispute stymied. That is what occurred. The Local Health District made findings adverse to Ms Mines and relied on those findings to Ms Mines' prejudice prior to the dispute as to the fairness of the process having been dealt with. Adverse findings were made against Ms Mines based on a process which the Commission might subsequently find was unfair or contrary to the Policy Directive. Those findings cannot be removed other than, perhaps, by the investigation and disciplinary process being redone. That is an inefficient and unsatisfactory outcome which the Commission would not infer was intended by clause 48(vii). In light of those textual and purposive considerations, the expression "work procedures and practices" in clause 48(vii) cannot have the restricted meaning attributed to it by the Commissioner. It is submitted that clause 48(vii) is intended to mean what it says in the first sentence of the clause, that is, that the status quo before the emergence of the issue must continue whilst these procedures are being followed. The explanation of what is meant by the "status quo" is intended to do no more than dictate the timing of the application of the status quo provision, that is, that the status quo refers to the situation existing immediately before the issue arose or, if the dispute involved a change to procedures or practices, before that change was made. The reference to "work procedures and practices" is no more than a reference to the working arrangements of the employee or employees affected by the dispute. For these reasons, the limited interpretation of clause 48(vii) advanced by the respondent and accepted by the Commissioner cannot be accepted. The Commissioner, with respect, erred in her interpretation of the Award. Clause 48(vii) requires the employer to maintain the status quo in the sense of the working arrangements of the employee or employees affected by the dispute whilst the dispute settlement procedure is followed.

Submissions of the Respondent

1. The Respondent submitted that the Commissioner did not err in her construction of subclause 48(vii) of the Award. The Respondent agreed with the Appellant that the principles applying to the construction of Industrial Instruments is well-settled, however, explicitly referring the Commission to what was described as a key passage from the Kucks v CSR Ltd (1996) 66 IR 182 at 184: "But the task remains on of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award."
2. Submitting the appeal should be dismissed, the Respondent argued: Contrary to the Appellant's submissions at [13], the clarifying words in clause 48(vii) (a) and (b) of the Award do not obscure the operation of the provision. Rather, the words make it clear that the "status quo" is only intended to apply to a range of circumstances in which "work procedures or practices" are affected by the "emergence" of an "issue". The Respondent agrees that clause 48, generally, is intended to cover a broad range of disputes. However, as suggested by the Appellant, clause 48(vii) is clearly intended to apply only to a subset of grievances or disputes where "work procedures or practices" are affected. So much is obvious from the text of the Award. If the "status quo" provision was intended to apply more broadly, the limiting words in clause 48(vii) would not have been used. At [16] of its submissions, the Appellant asserts that if the Commissioner's construction is correct then the status quo would not apply to disputes concerning compliance with existing procedures or practices of the employer. Such a submission ignores the intention of the clause. There certainly are circumstances in which the status quo provision would apply where there is a dispute about whether or not the employer is complying with existing procedures or practices. Namely, in circumstances where the employer decides to do something (or not to do something) that it has historically done (or not done) in respect of that work procedure or practice. For example, the employer may consider (rightly or wrongly) that it has been applying a work practice or procedure incorrectly for a number of years and then decides to correct its application of the work practice or procedure. The decision by the employer may give rise to a dispute about what is required by that work procedure or practice. However, in that situation, the "status quo" clause compels the parties to continue applying the work procedure or practice as it had been applied until such time as the Commission can determine the dispute. The clear intention of the clause is to ensure that work procedures and practices continue as they have been applied historically (even if that application is wrong) until the Commission can resolve the issue (namely what is the correct application of the work procedure or practice). At [18] of its submissions the Appellant asserts that sub-paragraph (a) of clause 48(vii) is rendered superfluous and of no effect by the Commissioner's interpretation. Such an argument ignores the context of the clause. The two sub-paragraphs are clearly intended to address two different situations. Sub-paragraph (a) is intended to address situations where a decision is made that will affect work procedures and practices but it has not yet been implemented and an issue arises as to whether the decision should be implemented. In that situation sub-paragraph (a) requires that the existing work procedures and practices continue as in place immediately prior to the issue arising (ie before the decision is implemented). Sub-paragraph (b) is intended to address situations where a decision is made and implemented and an issue arises (for example, an allegation that by implementing the decision the employer has breached the Award). In that situation sub-paragraph (b) requires that the work procedures and practices that were in place before the implementation of the decision continue until the procedures in clause 48 are followed. That is, the parties are required to go back to the way things were before the decision was implemented until the procedures in clause 48 are followed. A very basic example of this is a roster change that is implemented and there is a dispute about its implementation. The Appellant's submissions at [19] and [20] are simply not correct. The Decision does not mention the words "formal" or "established" at all. Rather, the Commissioner (quite correctly) states at [83]: ...Whether a matter or issue which is subject to dispute is a work procedure or practice and thus subject to the status quo requirement will be a matter of a factual determination. There is no error in such an approach. The only error the Commission made, in this regard, was to find that the Managing Misconduct Policy Directive (Policy) was a work procedure or practice. For the reasons advanced below, the Respondent contends that a "work procedure or practice" is limited to the manner in which work is performed, arranged or structured. In this regard, "work" "means the activity of employees involving mental or physical effort, their job, duty task or undertaking." Respectfully, the Respondent submits that clause 48(vii) of the Award is directed at the manner in which work is performed rather than placing any restriction on the Respondent in terms of investigations, making factual findings arising out of any investigation or withdrawing letters of appointment. At [21] to [25] of its submissions, the Appellant provides an example of what it is says is an "inefficient and unsatisfactory outcome" if the Commissioner's interpretation was accepted. With respect, there are a myriad of examples of potential "inefficient and unsatisfactory outcomes" that would result if the Appellant's interpretation was accepted. This case is a perfect example of why the Appellant's interpretation should not be accepted. If the Appellant's interpretation had been accepted there would have been a freeze in time from 5 December 2017 (over 12 months ago) and continuing presently where the investigation into allegations against Ms Mines could not be completed. Obviously, the delay would have prejudiced the investigation. For example, relevant witnesses may have moved on, witness recollection would be poorer, and it's entirely possible that the person who started the investigation would have moved on with the result that the investigation would have to commence again. That would also be an "inefficient and unsatisfactory outcome." If, as a further example, Ms Mines had engaged in serious misconduct (assume harassment or bullying) warranting summary dismissal, the Appellant's interpretation would allow a situation where Ms Mines remains employed and continues to perform work (and get paid) as normal, potentially with the same people she has harassed or bullied, for over a year whilst the Commission attempts to determine an alleged (and somewhat innocuous) procedural deficiency. That is clearly not the intention of clause 48(vii) of the Award. The example the Appellant provides is one of such limited application that it should have no bearing on the Commission's interpretation of clause 48(vii) of the Award. That is, the Appellant points to a situation where arguably adverse findings are made against an employee but no action is taken to then suggest that the only available avenue to remove the findings is to re-commence the process again. The Appellant then says clause 48(vii) is not intended to allow such a course of conduct. However, such a submission not only disregards the examples provided above, it also ignores the avenues that are available to employees if disciplinary action is taken against them. Realistically, that is the only situation where challenging adverse findings may be considered necessary.

Consideration

1. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ).
2. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading."
3. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038.
4. For completeness, we affirm these principles and apply them to the construction of the Status Quo Provision the subject of this appeal.

The meaning of the Status Quo Provision

1. The parties are at odds with respect to the meaning to be given to the words in the Status Quo Provision.
2. The Appellant contends that in the context of the current dispute, the Status Quo Provision would operate so to require the employer to "freeze" the investigation with respect to Ms Mines at the point at which the parties fell into the dispute as to whether there was a requirement for the investigation report to be provided to her.
3. The Appellant submitted that a number of textual and purposive considerations tell against the Commissioner's interpretation at first instance of the Status Quo Provision, including: 1. The Status Quo Provision would have no application where a dispute as to whether the employer's procedures or indeed the Award, are being complied with: [14]-[16] of the Appellant's submissions; 2. Subclause 48(vii)(a), which requires the maintenance of work practices and procedure immediately prior to the issue arising, would have no work to do as the Status Quo Provision would only have impact where an established practice or procedure was departed from: [17]-[18] of the Appellant's submissions. 3. The meaning of work procedure and practice should be interpreted not as formal work practices and procedures, but instead be considered wide enough to encompass the work procedure and practices of or applicable to a particular employee: [19]-[20] of the Appellant's submissions. 4. The Status Quo Provision within a dispute settlement procedure has the obvious purpose of ensuring that, where a dispute arises in the workplace, the position of the parties to the dispute must be maintained and not prejudiced whilst that procedure is be in followed: [21]-[25] of the Appellant's submissions.
4. We disagree with the interpretation put forward by the Appellant.
5. In interpreting the Status Quo Provision, consideration must be given to the ordinary and grammatical meaning of the words that make up that provision. This is the starting point.
6. The words "work", "procedures" and "practices" within the context of the Status Quo Provision were considered by the Commission at first instance with reference to the Macquarie Dictionary Online (seventh edition, 2018). The Commission found that the word "work" was an adjective to modify the nouns procedures and practices. In turn, the Commission found that "practice" means "habitual or customary performance" and "procedure" means "the act or manner of proceeding in any action or process; conduct." The Commissioner continued, finding that this was a reasonable and practical construction of the subclause in context and not at odds with the beneficial or generous construction, and is a desirable policy: see paragraphs [73]-[82]. We can see no error in this approach and the conclusions reached by the Commissioner with respect to the meaning of the words "work procedures and practices" in the Status Quo Provision.
7. The Appellant submitted that the words in the Status Quo Provision "work procedures and practices" should be read broadly to encompass the particular circumstances of the employee. If this interpretation of the Appellant is accepted this would require the Commission to ignore the plain words of the provision which on their face operate to define what is meant by the words 'status quo' in the Status Quo Provision, namely, the established work practices and procedures at the relevant point in time. The Appellant nonetheless submitted that the interpretation it advanced should be accepted, noting an award should not be read in a narrow or pedantic manner and meanings which "avoid inconvenience or injustice may reasonable be strained for": Kucks v CSR Ltd (1996) 66 IR 182 at 184.
8. Whilst we accept the authorities allow for a meaning to be strained for in appropriate cases, upon analysis, the purpose of the provision does not tell against adopting the plain meaning of the words of the text being interpreted. It is necessary to consider the purpose of the Status Quo Provision in greater detail.
9. To understand the Status Quo Provision one may ask how work was done prior to the notification of the dispute or prior to any change of work procedure or practice that is the subject of the dispute.
10. In this case, that question is directed to establishing the relevant work procedure or practice relating to the conduct of investigations into employee behaviour or performance. The first dispute notification referred to the Respondent's "Policy Directive". There is no suggestion that there was a change of the Policy Directive and therefore no issue arises under clause 48 (vii)(b). Rather, the Appellant suggested that the Respondent had not followed the Policy Directive by failing to supply a copy of the investigation report.
11. We may conclude therefore that the Status Quo Provision requires work, and more broadly the employment relationship, to continue in accordance with the Policy Directive (which represents the established work practice in this case).
12. The particular Policy Directive entitled Managing Misconduct was in evidence. It requires in section 7.3 that the investigation report be provided to the decision-maker. The decision-maker is required to consider the report and, if the decision-maker proposes to make adverse findings against the employee, give the employee an opportunity to respond.
13. Section 7.5.2 provides that the employee is entitled to access relevant information in order to make that response. In that regard the following is said: "In order to be able to provide a considered response, the staff member has a right to access relevant information that has been taken into consideration by the decision-maker in making an adverse finding. The material should be sufficient to enable the staff member to understand fully any alleged misconduct, but need not include all information in the possession of the decision-maker, particularly where the interests of other members of staff may need to be protected or the material is not relevant to the findings."
14. It is evident that there is no express requirement in the policy directive that the investigation report be provided to the staff member. The general language of section 7.5.2 leaves open the possibility that, in an appropriate case, the investigation report may be provided. That is a matter for judgement by the decision-maker at least in the first instance. We note in this regard that the Appellant did not contend that the work procedure and practice of the employer was to provide a copy of the investigation report to employees in the circumstances of Ms Mines.
15. It should be noted that the appellant sought to compel production of the report and other relevant documents by summons. The respondent moved to set aside that summons and another member of the Commission is reserved in relation to that motion. We should not therefore comment further on whether this is an "appropriate case". What we can observe is that the Policy Directive not only does not require the investigation report to be supplied but expressly contemplates that it may not be supplied.
16. The Appellant contended in its written and oral submissions that the purpose of dispute settlement procedures included in awards is to encourage the orderly and fair disposition of disputes and to avoid, if possible industrial disputation. The Appellant continued that the obvious purpose of the Status Quo Provision is to ensure the interests of the parties in a dispute are not prejudiced while the parties follow the dispute resolution process. Those submissions may be accepted but they are not in themselves sufficient to define the purpose of a Status Quo Provision. The second proposition begs the question as to what the relevant "interests" of the parties which are to be protected.
17. The Appellant argued that it is consistent with the purpose for which it contends to construe the words "work procedures and practices" as used in the Status Quo Provision broadly and to mean the particular circumstances that affect an employee at the time a dispute arises. Accordingly, in this matter, the particular circumstances relating to Ms Mines at the time the dispute was notified were that whilst allegations were being investigated in respect of her, she had no adverse findings against her and this was the status quo that should be retained while the dispute remained unresolved.
18. The difficulty with that contention is that it requires the Status Quo Provision to change the status quo, a result which is clearly antithetical or at least oxymoronic. In this case for example if the Policy Directive does not require production of the investigation report, the Status Quo Provision cannot be used to force a change in or departure from the established work practice. That is clearly contrary to the express terms of the subclause.
19. As the authorities make clear, in interpreting the Status Quo Provision, its context must be considered. Consistent with the overall purpose of the dispute resolution clause (to provide for the orderly and fair disposition of disputes and to avoid, if possible, industrial disputation), subclause 48(vi) provides that, "During these procedures normal work must continue and there must be no stoppages of work, lockouts, or any other bans or limitations on the performance of work". In interpreting subclause 48 (vii), it must be read in conjunction with, and not in isolation from subclause 48 (vi). The Status Quo Provision informs the parties of how work is to continue while the dispute remains unresolved. It is consistent with the broader purpose of the dispute resolution clause that the purpose of subclause 48(vii), read with subclause 48(vi), is to facilitate a means by which "business will continue as is it usually does" whilst a dispute remains unresolved.
20. It would be inconsistent with this purpose, if the Status Quo Provision were to be interpreted as operating to stop a party from continuing in their business as they usually would while the dispute remains unresolved.
21. A particular issue with the contention put by the Appellant with respect to the purpose of the Status Quo Provision is that while it argued that it operated so to prevent prejudice to either party, it was unable to explain how the status quo would be determined where prejudice might be visited upon more than one party to an award while the dispute resolution procedure was being worked through.
22. So for example, in the context of the current dispute relating to the provision of an investigation report to Ms Mines in her investigation, if the Status Quo Provision operates to freeze the investigation while that issue works its way through the dispute resolution process, the Respondent is not able to complete its investigation, possibly for an extended period, which may prejudice its accuracy as witnesses' memories of relevant events fade and the evidence becomes stale. Accordingly, if the Appellant's contention were accepted, a dispute about the way in which the Policy Directive was being applied to a particular employee in respect of alleged misconduct would have the effect of immediately staying the investigation. That is work would not continue in conformity with established practice.
23. The potential mischief this situation would visit upon the parties to the Award if the Status Quo Provision were to be interpreted this way was not adequately addressed by the Appellant. It would be significant for the Commission to make an Award where one party could effectively stop the other from doing what they would otherwise be legally and contractually entitled to do by notifying a dispute to the other. Further, if the Appellant's interpretation were accepted, there is no clear means by which a party who is negatively impacted by such a freeze could seek to have it lifted until the dispute were resolved. Had it been intended that the Status Quo Provision operate in this way, the text of the Award would have clearly articulated that intent. It does not. Indeed, the Commission is being asked to strain to find this alternative meaning advanced by the Appellant. The justification to strain in that way is not, however, present.
24. That is not to say that a party is without remedy. To the extent that there is material prejudice to a party in a dispute, the party is able to make application to the Commission for relief, including interim relief pursuant to s.136(1)(d) of the Act. Indeed, this was a course open to the Appellant in this matter, where the Commission could have undertaken a proper analysis of the appropriateness of making an order preventing the employer from continuing the investigation, pursuant to the relevant principles. In determining such an application, the Commission would apply the principles generally applicable to the granting of interim orders for relief, including whether there is a serious question to be tried; whether irreparable harm will be suffered by Ms Mines; and where the balance of convenience lies.
25. Accordingly we have concluded that the interpretation argued by the Appellant is inconsistent with the purpose of the provision, namely to provide for a means by which the parties can "continue business as usual" while the dispute resolution procedure is being worked through.
26. The Appellant submitted that the Commissioner interpreted subclause 48(vii) such that the status quo requirement applied only to a dispute about a change to an existing procedure or practice of the employer and no other dispute. We are unable to read this as the outcome of the Commissioner's decision at first instance. The Status Quo Provision will apply to the broad range of disputes that may arise within the context of the employment relationship and requires that the established work practices and procedures will continue as they were immediately before the dispute arose, or as they were immediately before any change to those procedures or practices, which caused the issue to arise (provided these are safe).
27. Contrary to the Appellant's submissions, the subclause will apply in every dispute. As we have noted, the Status Quo Provision requires in such matters that what has happened historically (the work practices and procedures in place), must continue until the resolution of the dispute, or if the dispute is about the work practice or procedure, what was in place immediately prior to the dispute must be retained during the currency of the dispute.
28. Accordingly we confirm the interpretation of the Status Quo Provision consistent with the Commission at first instance.

Was there a breach of the Status Quo Provision?

1. As the Commissioner found at first instance at [83]: "Whether a matter or issue which is subject to dispute is a work procedure or practice and thus subject to the status quo requirement will be a matter of a factual determination."
2. The issue does not arise in this case; however it would be open to the Commission to find that a work practice or procedure is something less than a documented policy of the workplace, for example, where the usual practice was for employees to accept overtime, though there be no formal requirement for them to do so. Such an interpretation is consistent with the plain words of the provision and the overall intention of the subclause to encourage the orderly and fair disposition of disputes and to avoid, if possible industrial disputation. Further, it facilitates the resolution of the mischief it is designed to cure, namely to provide the manner in which the parties are to continue in their business while the dispute remains unresolved.
3. We agree with the Commission at first instance that what is a work procedure or practice is a matter of fact to be determined in each case. The Respondent submitted that the Commissioner erred in finding that the Policy Directive was a work procedure or practice, though the Respondent conceded that this would not ultimately impact upon the outcome of the matter. We can see no error in the Commission's finding that the Policy Directive was a work procedure and practice.
4. It follows that the Status Quo Provision requires that the Policy Directive (a work practice or procedure in place immediately before the dispute arose) continue to apply to the parties while the dispute remains unresolved. Accordingly the Respondent was required to follow the Policy Directive and continue to investigate the matters relating to Ms Mines while the dispute about whether it required the provision of the investigation report remained.
5. Accordingly, the Commission at first instance was correct that the Respondent did not breach the Status Quo Provision on 12 January 2018 when it made findings and a recommendation that Ms Mines undertake remedial action following investigation into the allegations against Ms Mines.
6. The Appellant also contended that the Respondent breached the Status Quo Provision on 9 August 2018, by withdrawing the letter dated 30 July 2018 to Ms Mines appointing Ms Mines to a temporary secondment position of clinical nurse facilitator in light of her not having demonstrated acceptance or willingness to address remedial action as set out in the 12 January 2018 letter. The Appellant submitted that in relying on the remedial actions decided upon after the dispute had arisen, the Western NSW Local Health District did not respect the status quo. In making this submission the Appellant did not point to a particular work practice or procedure that applied at the time the dispute arose that has been departed from by withdrawing the letter of offer.
7. As we have noted, the Status Quo Provision did not prevent the investigation from continuing in accordance with the Policy Directive (for the reasons set out above). Further, there was no evidence or submission that a particular work procedure or practice had been departed from in relying on the outcome of the investigation process in withdrawing the letter of appointment for the position of clinical nurse facilitator. Accordingly, we are unable to find that there has been a breach of the Status Quo Provision with respect to the withdrawal of the letter of offer.
8. It follows that the Commission at first instance did not fall into error and the appeal must be dismissed for the reasons contained in this decision.

Orders 1. Leave to appeal is granted. 2. The appeal is dismissed.

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: 12 August 2019