New South Wales Nurses' Association v Sydney South West Area Health Service

Re Hospital Nurses (State) Award (No. 2) [1947] 46 NSWR 515 CASES CITED: Re Public Hospitals Nurses (State) Award No.909 of 1984, 29 November 1984 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 14

APPLICANT Mr C Blair, industrial officer New South Wales Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT Mr G Driver, Deputy Manager, Human Resources Sydney South West Area Health Service

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by New South Wales Nurses' Association of a dispute with Sydney South West Area Health Service re sock and stocking allowance

1 This is a notification by the New South Wales Nurses' Association ("the Association") pursuant to s130 of the Industrial Relations Act 1996 ("the Act") of a dispute with Sydney South West Area Health Service ("the AHS"). Background 2 At the outset, the dispute was one concerning the payment to nurses of the socks and stockings allowances under the Public Health System Nurses' (State) Award ("the Award") both retrospectively and prospectively at Bankstown-Lidcombe Hospital ("the hospital"). The Association has been in disagreement with the hospital since at least February 2004 regarding the non-payment of the allowances, resulting in the notification of the dispute to the Commission on 23 August 2005. 3 In the course of conciliation of the dispute, the AHS informed the Association that they would require socks and stockings to be worn and would commence payment of the socks and stockings allowances to nurses at the hospital from the beginning of the first pay period on or after 1 January 2006. 4 The Association now seeks the retrospective payment of these allowance for the period of six years from 24 August 1999 to 23 August 2005. 5 A Certificate of Attempted Conciliation was issued on 30 November 2005 and the matter proceeded to hearing. Award provision 6 Clause 23(iii) of the Award provides that, in lieu of the employer supplying stockings (to females only) and socks to a nurse who is required to wear a uniform, they are required to pay the sums set out in the Award. The relevant part of Clause 23 is as follows: 23. Uniform and Laundry Allowances (i) Subject to subclause (ii) of this clause, sufficient, suitable and serviceable uniforms, including one pair of shoes per annum which shall be of a recognised acceptable standard for the performance of nursing duties, shall be supplied free of cost to each employee required to wear a uniform. An employee to whom a new uniform or part of a uniform has been issued who, without good reason, fails to return the corresponding article last supplied shall not be entitled to have such article replaced without payment therefore at a reasonable price. (ii) ...... (iii) (a) In lieu of supplying uniforms and shoes to an employee, an employer shall pay the said employee the sum as set in Item 13 of Table 2 of Part B per week, which includes a sum as set in the said Item 13 per week for shoes. Provided, however, that if a uniform includes a cardigan or jacket an additional amount as set in the said Item 13 per week shall also be paid. (b) In lieu of supplying stockings to a female employee an employer shall pay the said employee the sum as set in the said Item 13 per week. (c) In lieu of supplying socks to an employee, an employer shall pay the said employee the sum as set in the said Item 13 per week. (d) The allowances prescribed in this subclause continue to be payable during any period of paid leave. (iv) ….. 7 The current amounts of the allowances, from 1 July 2005, are $2.86 per week for stockings and 56 cents per week for socks. The claim is said to have effect on some 700 to 800 employees at the hospital. History of the allowances 8 The parties traced the history of the relevant award provisions from the decision of Kinsella J in Re Hospital Nurses (State) Award (No. 2) [1947] 46 NSWR 515. In this decision it was noted that the form of the relevant clause was as follows: (i) Subject to subclause (iii) hereof sufficient suitable and serviceable uniforms including hospital shoes and stockings shall be supplied free of cost to each employee required to wear a uniform: Provided that any employee to whom a new uniform or part of a uniform has been supplied by her employer who, without good reason, fails to return the corresponding article last supplied to her shall not be entitled to have such article replaced without payment therefore at a reasonable price. (ii) An employee on leaving the service of an employer shall return any uniform or part thereof supplied by that employer which is still in use by her immediately prior to her leaving. (iii) In lieu of supplying hospital shoes and stockings to an employee an employer may pay to such employee the sum of 2s. per week, and in lieu of supplying the balance of a uniform to an employee an employer may pay to such employee the sum of 3s. per week. (iv) If in any hospital the uniform of an employee is not laundered by staff other than the nursing staff, and at the expense of the hospital, an allowance of 3s. 6d. per week shall be paid to such employee. 9 His Honour found no case for the provision of shoes at the hospital's expense. In regard to stockings, he said: The position is rather different in respect of stockings. Justice is not so blind that I am precluded from judicially noticing that many young ladies have dispensed with the use of stockings, which no longer are essential to be worn for convention or comfort. Hospital authorities in requiring stockings to be worn, particularly stockings of drab type, are compelling nurses to an expenditure which otherwise is not necessarily incurred. For this I consider that reimbursement should be made, unless the hospital itself supplies the articles. Stockings, when prescribed, are to be included as uniform. As to amount of allowance, it is clear that the sum of 2s. per week fixed in 1936 is inadequate in view of current prices. I think that, where uniforms, in which I include stockings, are not provided by the employer, an allowance of 4s. per week is not too great, although it is considerably more than in any other award. The primary obligation is that the employer shall provide the uniform. If he can do so at less cost than the allowance he is free to do so. 10 In doing so, his Honour separated the issues of stockings and shoes. Having found no case for the provision of shoes or an allowance in lieu thereof, he independently considered whether reimbursement for the cost of stockings should be made, determining that stockings were part of the uniform. The allowance then made was for uniform, including stockings. There was no linkage between any requirement to wear stockings and the requirement to wear shoes. 11 A decision of Commissioner Cansdell on 6 April 1983 was subject to appeal before her Honour Glynn J, whose decision was then appealed to a Full Bench of the Commission in Court Session (Re Public Hospital Nurses (State) Award, No 909 of 1984, 29 Nov 1984). The 1984 Full Bench noted that the employers had vigorously raised an issue as to the inclusion of shoes and stockings as part of the uniform, resulting in the claim in respect of stockings being granted and that in respect of shoes being refused. The Full Bench determined to grant the claim for shoes by inserting the following into the award: Provided that, where duty shoes are required to be worn as part of the uniform, the employer shall not be required to supply more than one pair of shoes per annum. The following sub-clause was added: (c) In lieu of supplying duty shoes required to be worn as part of the uniform, an employer may pay to the employee the sum of $1 per week. 12 In considering the claim for the inclusion of cardigans and a jacket in the uniform, the Full Bench said: The second reason for not favouring the provision sought by the Association and awarded by the chairman is that it represents quite a significant departure from the concept of the uniforms clause of the award. As we read that clause it is for the employer to determine whether a uniform shall be worn or not and, if he decides affirmatively in that respect, it is also his decision as to what shall comprise the uniform. In such a case the employer is then required to supply such uniforms - sufficient, suitable and serviceable - or to pay the "in lieu" amounts prescribed by the clause. The nature of the Association's claim is that, rather than the employer deciding what uniform should be prescribed, the industrial tribunal should make that decision - a decision which would be general in nature and applicable in all hospitals where uniforms are required to be worn. To accede to a claim of that nature would be an undesirable departure from the manner in which the uniforms clause has operated and in our opinion the evidence presented was insufficient to warrant that course being taken in this particular case. 13 In 1978 there was an implied recognition that some nurses were male. The provision in the 1978 award read as follows: In lieu of supplying stockings to female employees an employer may pay the said employee the sum of 45 cents per week. 14 The findings of Commissioner Cansdell in Matter No 1043 of 1981 and 1099 of 1982 (handed down on 6 April 1983) resulted in a number of changes to the award, including a variation to the uniform allowance. Included as "Matters considered to be outside 'Guidelines' and granted by [the] Chairman", were the following, without reasons being given: Uniform and Laundry Allowances Subclause (i) - shoes sought to be provided. Subclause (iii)(a) and (b) - "shall" to be substituted for "may" in respect of uniform and stocking allowances.

Subsequent awards replaced the word "may" with "shall" with respect to stockings. 15 The reference to the socks allowance followed this change. The award gazetted on 15 May 1985 illustrates the change which follows through to the current award. The relevant provision of that award, at clause 28 (iii) is: (b) In lieu of supplying stockings to a female employee an employer shall pay the said employee the sum of $1.50 per week. (c) In lieu of supplying socks to an employee, an employer shall pay the said employee the sum of 30 cents per week.

The parties did not make reference to how the socks provisions came into the award, and it would appear to be a matter inserted by consent. The case for the Applicant 16 The resolution of the dispute appears to centre on the issue of whether stockings and/or socks have been required to be worn as part of the uniform at the hospital over the period in question. There has not been provided in evidence any formal notice of a requirement to wear stockings or socks, and the AHS has denied that any such requirement exists. The Association, on the other hand, claimed that the requirement was inferred by various means. Statutory interpretation 17 Mr Blair for the Association submitted that the rules of statutory interpretation (which apply equally to the reading of a statutory instrument such as an award) indicate that the socks and stockings are not optional components of a uniform, but must be either compulsorily supplied or the allowance must be paid in lieu. There is simply no other interpretation which can be applied to clause 23(iii), he said. Unlike the cardigan and jacket, which are specifically identified as optional components, the socks and stockings are not given this optional status. 18 Further, it was submitted that, on any reading of the award, clause 23(iii) stands alone from clause 23(i). There is no prerequisite that a nurse must wear a uniform in order to be supplied socks or stockings or paid the allowance in lieu. 19 The Association submitted an alternative argument to those regarding the interpretation of clause 23. Nurses have always been required to wear nursing shoes and it is unacceptable for socks and stockings not to be supplied or the allowance paid where the hospital requires shoes of an appropriate standard.

Shoes require stockings or socks 20 It is the Association's understanding that the hospital, for well over the period of 6 years has required nurses to wear nurses' shoes and has paid the shoe allowance. It is also the Association's understanding that nurses at the hospital have worn nursing shoes as required. It is also the Association's understanding that nurses have worn socks and stockings as a consequence of the requirement to wear appropriate shoes. 21 The Association submits that if an employer requires a nurse to wear nursing shoes of an appropriate standard, the wearing of such shoes will require a nurse for a range of reasons to wear socks or stockings. The Association submits that it is not suitable to have a uniform where nurses are required to wear nursing shoes but are not required to wear socks or stockings. 22 Karen Fernance, a Registered Nurse who is a Nurse Unit Manager employed at the hospital since 1982 gave evidence regarding the history of the allowance and the background to the dispute at the hospital. She provided a copy of the Bankstown Health Service's Footwear Policy (as at February 2005) which provides that employees should wear footwear which has a non-slip sole, enclosed and waterproof or leather uppers, low heels, laces (or similar) and be a good fit. It also states: It is important for all health care employees to: · Wear appropriate footwear for the task being conducted. · Keep feet and footwear clean. · Check footwear regularly for wear and tear and repair or replace as appropriate. · Wash and thoroughly dry feet daily. · Change socks daily and encourage the use of socks made from natural fibres. · Allow the perspiration within the footwear to evaporate when not being worn. · Clean up any spills immediately. · Record any slip, trip and fall incidents. 23 Ms Fernance stated her belief that nurses at the hospital are "sensible enough to have worn appropriate closed toe shoes, socks and stockings during at least the past 6 years". Health and safety 24 Nurses are on their feet during much of their working day. One reason for a nurse to wear socks or stockings is simply one of reasonable comfort to their feet. It would be unsuitable for a nurse to be required to wear shoes of an appropriate standard and to wear these shoes bare foot. Such a uniform would be unsuitable as it would be uncomfortable. 25 The employer is required to provide a safe workplace for their employees and this includes the protection of nurses against infection at work. If a nurse did not wear socks or stockings with the required shoes, the nurse could suffer the effect of the friction which allows skin to rub on the inside of their shoes. This friction can cause blisters and other superficial lesions. Shoes are an optimal breeding place for bacteria. Multi-resistant organisms are known to occur in hospitals. An admission that the hospital has not required nurses to wear socks and stockings with their shoes would indicate an unsuitable uniform and an admission that the hospital had failed their occupational health and safety duties to nurse. 26 Stockings and socks cover the skin and act as a barrier to biological and other hazardous material for nurses. Nurses, using common sense and accepted industry practice, have known this and have worn socks or stockings as part of their uniform as a protection against such agents. 27 With the introduction of the payment of the sock and stocking allowance at the hospital in January 2006, the hospital is simply recognising the long standing requirement for nurses to wear socks and stockings with their required shoes. There has in effect been no change in the practice of nurses. They have always worn socks or stockings with their required shoes. 28 An argument by the hospital that stockings and socks are not part of the uniform and therefore there is no requirement for them to pay the relevant allowance is not persuasive. In the case of shoes, the hospital has required and continues to require nurses to wear shoes of an appropriate standard and they have paid the shoe allowance to nurses. Shoes are however not part of the corporate uniform. The hospital has had a draft Footwear Policy since February 2005 which requires employees of the hospital to "wear suitable footwear at all times". This policy reflects what has been the hospital general policy of footwear, for nurses for many years. Whilst socks and stockings have not been part of the corporate uniform, like shoes, they have been a necessary requirement. 29 The Association called evidence from a podiatrist, Frank Stewart, that it was inappropriate and unsafe for nurses not to be required to wear socks or stockings in conjunction with work shoes, in his opinion. His reasons related to the support and protection of feet from the effects of skin rubbing on the inside of shoes, potentially causing lesions which may become infected, as well as providing protective wear within the nursing environment. Applicant's conclusion 30 When all the matters set out above are considered, it is clear that the award requires the hospital to either supply socks and stockings to nurses or pay the allowance in lieu. The hospital has not supplied these articles nor paid the allowances. It is also clear that the hospital has required nurses to wear nursing shoes which in turn require, for a range of reasons including occupational health and safety, the wearing of socks or stockings. 31 The Association seeks an order for the payment of the appropriate allowance, as set out in clause 23(iii) of the award, to all staff for the period 24 August 1999 to 23 August 2005.

The case for the Respondent 32 The AHS does not consider that there is any entitlement to retrospectivity of the payment of the allowance prior to 1 January 2006 when the requirement to wear socks or stockings was introduced at the hospital. Statutory interpretation 33 The AHS acknowledged that clause 23 of the Award provides for Uniform and Laundry Allowances and has contained a provision relating to Uniform and Laundry allowances since at least 1973 (IG, 20 March 1974). 34 The Area, Incidence and Duration clause stipulates that the Award shall "apply to persons engaged in the industry of nursing as defined herein within the State of New South Wales, excluding the County of Yancowinna within the jurisdiction of the Public Hospital Nurses' State Conciliation Committee." 35 The Public Hospital Nurses' State Conciliation Committee Industries and Callings applied to all "Trained nurses, trainees and assistants in nursing, and all persons employed as nurses in the industry and calling of nursing and employed in or in connection with public hospitals and institutions other than Crown employees in the State, excluding the County of Yancowinna; excepting all persons employed by The Sydney County Council." 36 The Area Incidence and Duration clause of the Award as well as the Award name was amended with the Award which took effect from 5 December 2005. The current Award name is the Public Health System Nurses & Midwives (State) Award and the current Area Incidence and Duration clause states: (i) This Award rescinds and replaces the Public Hospital Nurses' (State) Interim Award published 12 June 2002 and all variations thereof. (ii) It shall apply to persons engaged in the industry of nursing. (iii) Industry of nursing means the industry of persons engaged in New South Wales in the profession or occupation of nursing including midwifery and employed in or in connection with the New South Wales Health Service as defined in section 16 of the Health Services Act 1997, or the Ambulance Service of New South Wales as defined in s.4 of the Ambulance Services Act 1990, or their successors, assignees or transmittees. (iv) It shall take effect from 5 December 2005 and shall remain in force thereafter until 30th June 2008." 37 Therefore, as a State award it must be interpreted in a state wide context and not on an individual hospital or health service basis, submitted Mr Driver. Consequently, he said, the interpretation of the award provisions has to apply in the same way, and equally, irrespective of the location of the hospital be it at Tumut, Hay, Bourke or Tweed Heads. 38 The interpretation of the Award must produce a meaning of the clause and subclause which is not illogical and absurd, submitted the AHS. To interpret the award as is being sought by the Association in these proceedings would produce an absurd result. Health and safety 39 The AHS disputed the assertions that the feet of an employee are a "breeding place" for multi-resistant organisms, that it is unsafe for nurses to wear shoes without wearing socks or stockings, or that it is unsuitable for nurses to wear shoes without wearing socks or stockings. 40 Ms Rosalind Kidd, Chief Podiatrist at Liverpool Hospital, disagreed with the evidence of Mr Stewart that it is inappropriate and unsafe not to wear socks or stockings with their work shoes. She believes it is not possible to demonstrate that socks or stockings provide support to the foot and that they are not marketed as being suited to that purpose, except in the case of medical grade compression stockings. 41 Further, Ms Kidd stated that she was not aware of studies that have identified the interior surface of a shoe as a known breeding site for multi resistant organisms. Nor was she aware of instances of hospital staff contracting or transmitting multi-resistant organisms as a consequence of lesions on their feet. She said she believed that adults would not purchase shoes with the expectation that the shoes would cause rubbing or blisters to their feet. No requirement by the employer 42 At the hospital, socks and stockings have not been part of the uniform and as such there has not been a requirement to pay the respective allowances in lieu of supplying these items of apparel. 43 The Director of Nursing at the hospital, Margaret Brown, provided a copy of the Uniform and Dress Code Policy issued in December 1996, which contains no reference to socks and stockings. The revised policy of September 2003 also contains no such reference. Ms Brown said that no requirement existed to wear socks or stockings. 44 The requirement to wear stockings or socks appears in the Nurse and Midwife Uniform and Dress Code issued in January 2006, and was effective from 11 January 2006. This is consistent with the AHS' decision to pay the allowance from 1 January 2006. Ms Brown stated that Trainee Enrolled Nurses were required to wear socks or stockings from September 2005, and this requirement should have been incorporated into the Dress Code at that time.

Respondent's conclusion 45 The AHS submitted that when having regard to the history of the Uniform and Laundry Allowance clause in the Award to give a sensible interpretation of the clause it cannot be said that the nurses at Bankstown/Lidcombe Hospital who are required to wear a uniform are entitled to be paid the sock or stocking allowance when neither socks nor stockings have been part of the uniform prior to January 2006. The AHS said that the Order for payment as sought by the Association should not be made.

46 The power to address the issues raised in these proceedings is set out in the Act as follows: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). ( 2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 47 The Association is seeking an Order that the AHS pay the socks and stockings allowances to nurses at the hospital for a period of six years up to the date of the claim coming before the Commission. Shoes require stockings or socks 48 While it was not an explicitly stated requirement that nurses were to wear socks or stockings, it is arguable that it is implicit in the requirement to wear appropriate shoes that socks or stockings were also required. Footwear which would not require the wearing of socks and stockings, such as open toed sandals, for example, is inappropriate footwear for nurses and therefore is not included in the footwear guidelines provided to nurses employed at the hospital. However, the evidence of Ms Kidd is that it is not necessary to wear socks or stockings with nurses' shoes. She said that the wearing of socks or stockings was a personal choice based on such reasons as comfort, climate and fashion. 49 The Footwear Policy, while suggesting that socks be changed daily and be of natural fibre, does not require that socks should be worn. Ms Kidd said that the evidence in regard to the wearing of socks and the wearing of socks of natural fibre, did not cause her to give general professional advice that socks ought to be worn with shoes of the type worn by nurses. She reiterated that it was a matter of personal choice. 50 It is uncontested between the parties that shoes have been required to be worn as part of the uniform. The type of shoes are reflected in the Footwear Policy. The evidence of Ms Fernance, a registered nurse and Nurse Unit Manager at the hospital, was that nurses have worn socks or stockings throughout the period in question. This was contested by Ms Brown, who has held the position of Director of Nursing since July 1999. Ms Brown stated in evidence that she observed that many nurses did not wear socks or stockings. 51 The history of the award shows that the question of stockings being included in uniform was considered as a separate item to the inclusion of shoes in the uniform, and that the reasons for the provisions of these two allowances in the award was entirely separate. Kinsella J in 1947 found that "many young ladies had dispensed with the use of stockings", a perception consistent with the views expressed by Ms Kidd and Ms Brown in these proceedings. The consideration in turn by Cansdell CC, Glynn J and the 1984 Full Bench maintained the separation of these items. 52 It follows from the analysis of the history of the award provision as well as from the expert evidence that there can be read no implied term that the wearing of shoes necessarily infers that socks or stockings are required, as argued by Mr Blair. In all, I am satisfied that the argument that the requirement to wear shoes of the type worn by nurses inferred a requirement to wear stockings or socks was not made out on the evidence. Health and safety 53 The evidence of Mr Stewart that it is unsafe to wear shoes without stockings or socks was contested by Ms Kidd. Mr Stewart is a self employed podiatrist who is a Student Clinical Supervisor for the University of Western Sydney Macarthur Campus. Ms Kidd is a Lecturer at the University of Western Sydney, she is the Area Director, Podiatry, Sydney South West Area Health Service (Western Zone) and, as Chief Podiatrist at the hospital, she is the Director of the Western Zone regional "High Risk" Foot Clinic. Based on their relative experience and appointments, where there is conflict between their respective opinions I have to prefer that of Ms Kidd. It follows that I must reject the assertion that it is unsafe to wear shoes without stockings or socks. Statutory interpretation 54 The principles for award interpretation are well established. In Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135, the Full Bench said: 44 The reliance on the subjective intention of the parties in the interpretation of the industrial instruments involves error in principle thus requiring appellate intervention: see, for example, House v The King (1936) 55 CLR 499. Further, we consider that, by adopting that approach, the Commissioner erred by failing to have sufficient regard to the actual terms of the instruments being construed, namely the terms of the award and the agreement. Nor was the Commissioner's approach consistent with the normal approach to interpretation, including interpretation of awards, which requires the particular words or phrases under consideration to be considered in their context (for example, Fox v GIO Australia Ltd [2002] NSWIRComm 318 and Perisher Blue Pty Ltd v Australian Workers' Union (1999) 91 IR 274 at 283). The evidence of Mr Jones does little to provide material which is likely to assist in the construction of the instruments, save to the extent that it placed in evidence part of the history of the various provisions (which is a matter often relevant to the interpretation of awards and agreements: Perisher Blue at 284). 45 We note that the Commissioner did correctly endeavour to give a purposive construction to the relevant provisions but the attempt was affected by the reliance on the subjective intention of the parties.

46 When the respective instruments are considered, having regard to the orthodox approach to interpretation (see, for example, the authorities cited above; Kingmill Australia Pty Ltd T/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 at 228 - 230; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159 and CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408), the resolution of the issues in this matter is relatively straightforward. The plain words of the agreement permit a relief day worker to elect to be paid in accordance with the award. This interpretation is derived from the words "or pay as per roster" which is found within the clause entitled "12 hour roster" in the agreement. This approach does not require too literal an interpretation of the instrument. In any event, the same conclusion is reached whatever analytical approach to the construction is adopted. 55 Thus the orthodox approach to interpretation is found in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 141, among others, where it was confirmed that the interpretation relies on "the actual words used and their plain, ordinary English meaning" taken in context. 56 In the Award, the ordinary meaning of the words in paragraphs (b) and (c) of subclause 23 (iii), including the words "the employer shall pay", appear to require the payment of the socks and stockings allowances to nurses. It would follow, if this was the case, that the stockings allowance referred to in paragraph (b) must be paid to all female employees and the socks allowance in paragraph (c) must be paid to all employees, both male and female, since there is no limitation in the subclause for the payment of socks to male employees only. This would result in the obvious absurdity of female employees being paid both a stockings allowance and a socks allowance. 57 It follows that a literal interpretation of the words used, taken out of context, is simply not available in this case. 58 A similar absurdity arises from the submission that clause 23 (iii) stands alone from clause 23 (i). Subclause (iii) standing alone would appear to require the payment of a uniform allowances as well as stockings and socks allowances to all employees, whether or not they were required to wear a uniform. This conflicts with subclause (i) which makes specific reference to "each employee required to wear a uniform". 59 It is not only appropriate, but indeed necessary, to examine the context in which the paragraphs are written. Paragraphs (b) and (c) are in identical terms to paragraph (a) which provides that payment shall be made in lieu of supplying uniforms and shoes. However, it is clear that an allowance in lieu of the provision of uniforms and shoes is only required to be paid to "each employee required to wear a uniform". Although those words are not repeated in subclause (iii), it is obvious that uniform allowances are only required to be paid to nurses who are required to wear a uniform and who are not provided with a uniform. 60 Reasons were not provided at the time the words were changed from "shall" to "may". However, I cannot accept that the intention was to pay socks allowances to all employees, whether or not they were required to wear a uniform. Rather, the socks allowance must be paid in lieu of the provisions of socks in circumstances where, otherwise, socks would have been provided. The only such circumstances are where socks were required to be worn. Similarly, the same could be said of the stockings allowances. 61 The lack of specificity provided in clause 23 as to who is to receive the stockings and socks allowances is reinforced by lack of clarity about the socks allowance. While the words "females only" apply to the stockings allowance, no such clarifying words apply to the socks allowance. Over the last six years, some female nurses employed at the hospital may have chosen the option of wearing stockings, others may have worn socks, others may have chosen to wear neither stockings nor socks.

62 The logical outcome of the consideration of the words in their context is that the allowances for uniforms and shoes are payable only when uniforms and shoes are required to be worn. Similarly, the allowances for stockings and/or socks are payable only when stockings and/or socks are required to be worn. Conclusion 63 The well established principles of statutory interpretation lead to the result that stockings and socks allowances shall be paid by the employer only when they are required to be worn. 64 The Association's claim is uncontested in so far as the wording of the award clause makes it clear that shoes are not optional for those required to wear a uniform. A necessary linkage between the wearing of shoes and the wearing of stockings or socks has not been made out. Therefore, the requirement to wear shoes does not require the wearing of stockings or socks. 65 Nor has the argument been made out that stockings or socks are required to be worn with nurses' shoes on the basis of health and safety. 66 Further, as suggested by Mr Driver, it would be absurd to require compensation for an expense not incurred or not needed to incur. On the evidence of Ms Brown, socks or stockings have not been required to be worn at the hospital, nor has it been the practice, on her observation, that all nurses have worn socks or stockings. The evidence of Ms Brown was inconsistent with that of Ms Fernance in regard to the practice of wearing stockings or socks over the last six years. Without concluding as to the accuracy of either perception, relying as it must on memory over a substantial period, I am satisfied that it is possible, even likely, that some nurses have chosen not to wear stockings or socks for at least some part of the period in question. 67 I am satisfied that the introduction of the requirement to wear socks or stockings at the hospital this year is not, as was submitted by Mr Blair, a recognition of a long standing requirement. 68 Mr Driver's submission that the Uniform clause must be interpreted in a State wide context was not opposed. Indeed, a sensible interpretation based on established principles of award interpretation does not allow for a localised interpretation of an award clause. If Ms Fernance's observation of her colleagues was correct, such observation cannot be sufficiently persuasive to determine the meaning of the Award clause which must apply generally across the State. 69 The 1984 Full Bench commented that it would be "undesirable" that an industrial tribunal would prescribe what would comprise the uniform. The effect of the Association's claim in these proceedings would be for this Commission to prescribe that socks or stockings were a part of the uniform, against the express statement of the respondent that they were not required. 70 In all, I am satisfied that there was no requirement at the hospital for nurses to wear either stockings or socks during the period from 24 August 1999 to 23 August 2005. Accordingly, I decline to make the order sought by the Association.

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