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

The Commissioner's decision

1. The provisions of the Determination are as follows: "Pursuant to Section 115(2) of the Health Services Act 1997, and except as otherwise fixed in accordance with law, the Health Administration Corporation hereby determines as follows: 1. That the environmental allowance paid to nurses at Corrections Health Service as determined by the Industrial Relations Commission at an amount currently set at $1,854 per annum, and paid for all purposes, including shift penalties and overtime, to also apply on the same basis to non-nursing staff at Corrections Health who have substantial, regular and direct contact with inmates. 2. This determination to take effect from the first full pay period on or after 1 July 2002. 3. The allowance is to be adjusted in the future by State Wage Case decisions consistent with the nursing decision.
2. In addition to the s 175 Decision, the Commissioner made a recommendation under s 136(1)(a) of the Act that the appellant pay the environmental allowance referred to in the Determination to the Clinical Support Workers employed by the appellant in connection with the Connections Program, on the same basis and at the same rate that the allowance is paid to nurses employed in Justice Health ("the Recommendation").
3. The appellant appeals against the s 175 Decision and the Recommendation on the basis that the Commissioner misconstrued the Determination, erred in making the s175 Decision that the Clinical Support Workers had "substantial, regular and direct contact with inmates" and thus an entitlement to an environmental allowance.

Principles on leave to appeal

1. 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. 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].
2. These principles have since been approved in a number of decisions of the Full Bench: 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]; 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]; and Andrew Geza Schwartz and NSW Ministry of Health [2017] NSWIRComm 1034 at [8]. There was no suggestion that they should not be applied here. We will apply them.

Leave to appeal

1. The appellant contended that the appeal raised questions of such importance that, in the public interest, leave should be granted under s 188(2) of the Act. The impugned decision hinges on the correct interpretation and application of a statutory determination granting entitlements to certain classes of employees working at Justice Health. It was contended that the appeal amounted to a potential test case determining the entitlement to an environmental allowance in the Determination also extending to other employees working at Justice Health. In light of the reasons for the Decision, if the entitlement to an environmental allowance also extended to other employees working at Justice Health, that might result in unforeseen expenditure of further and significant public money.
2. The appellant's Narrative on Leave to Appeal submitted that it was appropriate to grant leave to appeal for the following reasons: 1. the appeal involved questions raising substantial issues of principle or law having wider implications for the jurisprudence of the Commission, including whether the impugned decision has widespread practical application: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 and Hosemans v Commissioner of Police (No.4) (2005) 150 IR 263 at [5]; 2. there was said to be a "demonstrable and cogent matter of principle or law": Parmjit Singh v Department of Community Services: Unreported, Full Bench, IRC No. 5638 of 1999, 20 July at [10], which includes the proper construction and application of legislation: Llandilo Staircases Pty Ltd v WorkCover Authority of NSW (2001) 104 IR 204 at 205; WorkCover Authority of NSW v Arbor Products International Australia Pty Ltd (2001) 105 IR 81 at 91/92 per Walton and Boland JJ and at 102 per Kavanagh J; 3. the ultimate conclusion reached by the Commission at first instance was not reasonable on the evidence: Parmjit Singh v Department of Community Services at [9]; and 4. there was demonstrable error: King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [54] and Allchin v Commissioner of Police (No.2) [2007] NSWIRComm 280 at [15].
3. The appellant's Outline of Submissions on the Appeal summarised what were characterised as the Commissioner's errors as follows: 1. the Commissioner erred in not determining that the words "on the same basis" in the Determination meant that Clinical Support Workers are entitled to payment of the environmental allowance only if the work environment in which they work is materially the same as the work environment in which nurses who work in correctional facilities; 2. the Commissioner erred in not properly having regard to the findings made in Re Corrections Health Service Nurses' (State) Award (No.2) [2001] NSWIRComm 58; (2002) 112 IR 402, where the Full Bench held that nurses working at Corrections Health Service (the predecessor to Justice Health) were entitled to receive an environmental allowance for "all incidents of employment experienced in prisons and prison hospitals and medical facilities" in light of "the everyday working environment for CHS nurses, particularly as it is to the exigencies associated with prisons and the characteristics of some prisoners, has features which may be acknowledged to be inherently and generally oppressive", in determining the circumstances justifying the payment of an environmental allowance to nurses; 3. the Commissioner erred in not determining that the entitlement to an environmental allowance in the Determination must be consistent with industrial principle found in other awards, namely, that the entitlement to an environmental allowance for working in a custodial environment arises in relation to employment in positions involving substantial, regular and direct contact with inmates on a daily basis or near daily basis; 4. the Commissioner erred in construing the expression "substantial, regular and direct contact with inmates" in the Determination as requiring that there must be, individually, "substantial contact", "regular contact" and "direct contact" with inmates, rather than the expression conveying a single composite notion regarding the overall level of contact required between non-nursing staff and inmates in order to be entitled to the environmental allowance in the Determination; 5. the Commissioner erred in not construing the content of the expression "substantial, regular and direct contact with inmates" in the context used in the Determination and its evident purpose, that is, the Determination extends the entitlement to an environmental allowance payable to nurses working at Justice Health to non-nursing staff working at Justice Health where non-nursing staff have materially the same contact with inmates as exists between nurses and inmates; and 6. to the extent that the expression "substantial, regular and direct contact with inmates" is to be construed as requiring, individually, "substantial contact", "regular contact" and "direct contact" with inmates, the Commissioner erred by not construing the word "substantial … contact" as involving both a quantitative and a qualitative assessment of contact which must be shown between the Clinical Support Worker and the inmate.

Consideration - Error

1. Leave to appeal is to be granted if the matter is of such importance that in the public interest leave should be granted. A key consideration in relation to the s 175 Decision is whether intervention is necessary to correct error. In relation to the Recommendation, which is clearly an exercise of discretion, Section 188(2) of the Act, as we have noted, limits appeals relating to discretionary decisions of the Commission to circumstances of demonstrated error, applying the principles set out in House v The King [1936] HCA 40. With these principles in mind, we turn to consider the areas of purported error identified by the appellant.
2. In essence, the appellant's case at first instance, and maintained on appeal, is that in order to be entitled to the environmental allowance, the relevant non-nursing employee's work environment must be the same as that of nurses who work in the corrections system.

Meaning of "on the same basis" in the Determination

1. The Commissioner determined that the words "on the same basis" in the Determination do not mean that non-nursing staff are entitled to be paid the environmental allowance only if the environment in which they work is materially the same as the work environment of nurses who receive the allowance.
2. While conceding that this point was not, as he put it, "the silver bullet" which would determine the outcome of the appeal, counsel for the appellant nevertheless placed heavy emphasis both in written and oral submissions on this aspect of the appeal. It was said that, properly understood, the words "on the same basis", contrary to the view reached by Murphy C, referred to the physical circumstances in which the work is performed, and that therefore those physical circumstances dictated whether the allowance was payable. Employees who did not work in the same way and in the same physical environment as nurses, the argument ran, could not be eligible for the allowance. Indeed it was conceded that this might well mean that no Clinical Support Workers, the occupational group about which such a great deal of evidence was brought before Murphy C, would receive the allowance.
3. We do not agree with the interpretative approach advanced by the appellant. We regard it as mistaken. Ultimately, in response to a question from the Full Bench, counsel for the appellant conceded, very properly, that the interpretation of the words adopted by Murphy C was open to him, and open to the Full Bench. But even without that concession, the construction advanced by the appellant is in our view strained beyond the boundaries of what the language of the determination can possibly provide. We reject it.
4. We consider that the Commissioner correctly found that the ordinary and natural meaning of the words "on the same basis", considered in the context of the paragraph in which the words appear, expresses the intention that the allowance is to be paid to non-nursing staff on the same basis as when it is paid to nurses, that is, as an all-purpose allowance. This is clear from the fact that the words "on the same basis" immediately follow the words "and paid for all purposes, including shift penalties and overtime".
5. We also consider that the interpretation contended for by the appellant is difficult to reconcile with the inclusion in the paragraph of a specific test for entitlement to the allowance, namely, that the non-nursing staff member has "substantial, regular and direct contact with inmates". We further agree with the submission advanced by the respondent that the intricate analysis engaged in by the appellant of the placement of commas within a sentence of the Determination is an example of a strict and technical approach inappropriate to the interpretation of industrial instruments. It places excessive weight on the use of punctuation, the use of which demonstrably changes with stylistic fashion over time, at the expense of the plain and ordinary meaning of the actual words used. Accordingly, we consider that the interpretation of "on the same basis" applied by the Commissioner was correct.
6. Moreover, we would observe in passing there appears to be merit in the respondent's submission that the test was one which applied in a range of arrangements applying to various groups of employees from about 1990. Although the evidence in relation to those arrangements was almost non-existent, it suggested that what the Determination took from the decision in Re Corrections Health Service Nurses' (State) Award (No.2) was not the test for entitlement but the revised quantum and the manner in which the allowance was to be treated.

Failure to have regard to relevant authority

1. The Commissioner similarly rejected the submission of the appellant that the reference to the "everyday working conditions of CHS nurses" in the decision of the Full Bench in Re Corrections Health Service Nurses' (State) Award (No 2) supports the proposition that Clinical Support Workers must have contact with inmates each and every working day to qualify for the environmental allowance.
2. The appellant submitted that the Commission incorrectly downplayed the use of the words "everyday work environment" in the Full Bench's decision, by not reading it in its full context. The word "everyday" is an adjective meaning commonplace or encountered or used routinely or typically (e.g. everyday chores). The appellant acknowledged that the meaning of the word "everyday" is different to the words "every day" meaning "on a daily basis," and therefore the use of the word "everyday work environment" refers to the routine or typical work environment of nursing staff working in the Justice Health facilities. However, it was submitted that this supports the construction that the allowance is compensation for workers working in the same (physical) correctional environment as nurses, rather than those who work outside that environment.
3. The respondent submitted, in our view correctly, that in Re Corrections Health Service Nurses' (State) Award, the Full Bench concluded (at [20]) that "the everyday working environment of CHS nurses, particularly as it is to the exigencies associated with prisons and the characteristics of some prisoners, has features which may be acknowledged to be inherently and generally oppressive." It is to be noted that the particular aspects of the "environment" to which the Full Bench referred was not only "prisons" as a location, but also "the characteristics of prisoners".
4. Arising from the Full Bench's decision, the appellant made the Determination relating to payment of the allowance to non-nursing staff. In so doing, it did not state that the allowance would be payable to non-nursing staff who work in prisons in "materially the same work environment" as nurses. Rather, the Determination created a test for entitlement to the allowance for non-nursing staff; the allowance was payable upon the staff member having "substantial, regular and direct contact" with inmates.
5. The Commissioner was required to and did construe the Determination in accordance with the terms as drafted. The submission that the purpose of the parties in agreeing to the Determination was to recognise that the Commission would make an award providing for an environmental allowance to be paid only to other staff members working in the same circumstances is an assertion unsupported by evidence.
6. Accordingly, we do not consider it has been demonstrated that the Commissioner fell into appellable error in his application of the decision in Re Corrections Health Service Nurses' (State) Award.

Construction of "substantial, regular and direct contact with inmates"

1. The appellant submitted that the Commissioner also erred in interpreting the expression "substantial, regular and direct contact with inmates" as requiring, individually, "substantial contact", "regular contact" and "direct contact" with inmates. The expression is instead intended to convey a single composite notion incorporating the overall nature and level of contact required between non-nursing staff and inmates to create an entitlement to the environmental allowance in the Determination. In this way, the nature and level of the contact between Clinical Support Workers and inmates must be comparable to the contact between nurses and inmates. Alternatively, if it were correct that the expression was to be construed as separate requirements, the element of "substantial…contact" requires a quantitative and qualitative assessment.
2. The expression was said to be a hendiatris, being a phrase which adds emphasis by using three words to express the one idea: Century 21 Real Estate LLC [2014] ATMO 15 at [23]. The appellant relied upon examples of hendiatris including "wine, women, song" (conveying a hedonistic lifestyle) or "Liberté, Egalité, Fraternité", French for "Liberty, equality, fraternity" (said to evoke brotherhood).
3. It was submitted that this construction was supported by the use of the phrase in the Crown Employees (Psychologists) Award. Psychologists working in juvenile justice centres are entitled to an environmental allowance based on "substantial, regular and direct contact with offenders/clients" pursuant to subcl 7.1 of that Award. In Crown Employees (Psychologists) Award [2006] NSWIRComm 315, the Full Bench considered the overall level of qualitative and quantitative contact between the psychologists and inmates in determining that such an allowance was appropriate, having regard to evidence that psychologists worked "an average of between one to five hours face to face with clients per day, or about 50 - 60 hours per month".
4. In particular, the appellant submitted that the Commission erred in finding that the concept of "substantial ... contact with inmates", as this term is used in the Determination, is chiefly directed at the quality of the interaction between a CSW and an inmate rather than the period of time. The Commissioner wrongly, it was said, isolated a single aspect of the interaction, namely, the in-depth nature of the interviews conducted by the Clinical Support Workers with inmates, and the range and sensitivity of the subject matters discussed, rather than the overall content and level of contact which exists between them.
5. We do not consider the phrase "substantial, regular and direct contact" is a hendiatris. With respect, it cannot reasonably be considered to be analogous to an expression such as "wine, women, song." The Determination uses three words to describe the contact by employees with inmates required to create an entitlement to the allowance, which are linked by the word "and". In our view, the word performs its ordinary conjunctive function, requiring that the contact with inmates be substantial and regular and direct. The work of the staff member must satisfy each descriptor. We agree with the submission of the respondent that this interpretation is consistent with the plain and ordinary meaning of the words used in the Determination.
6. The Crown Employees (Psychologists) Award decision was handed down 4 years after the Determination was promulgated. Accordingly it does not assist in, or indeed properly form part of, the exercise of ascertaining the intention of the drafter of the Determination, which the parties agreed must start with the words of the Determination itself.
7. We also do not consider that the Commissioner fell into error in his consideration of a quantitative element in his assessment of whether there was "substantial" contact with inmates. Rather, he rejected the proposition advanced by the appellant that whether an employee had "substantial" contact with inmates is to be measured simply in terms of the percentage of working time spent engaged in such contact. He concluded that whether the contact is "substantial" has more to do with the quality of the interaction, however not solely that quality. We also note that to the extent it was submitted by the appellant, the test of "substantial, regular and direct contact with inmates" does not require equal weight, or indeed any particular amount of weight, to be given to the quantitative (duration) aspect as opposed to the qualitative aspect.
8. The Commissioner expressly concluded that the contact with inmates was "substantial, regular and direct" having regard to the "duration, nature and quality" of the contact that each of the Clinical Support Workers had with inmates. The concept of substantial contact with inmates is not necessarily reducible to a simple assessment of the number of minutes a staff member is in the presence of an inmate. As the respondent submitted, contact with inmates which is of long duration may not be considered "substantial" if, for example, the non-nursing staff member is no more than sitting in a room with inmates. Contact which is of shorter duration may be substantial if the non-nursing staff member is involved in conducting a detailed assessment of an inmate by way of interview.
9. The Commissioner did not disregard the time taken in undertaking tasks such as conducting interviews. In his reasons, the Commissioner referred to the evidence of Justice Health's witness, Mr Grimmond, that initial assessment interviews with inmates conducted by Clinical Support Workers took "about an hour and in about 50% of cases up to about two hours". He disregarded the "statistical analysis" provided by Mr Grimmond, finding his evidence represented a "gross underestimate" of the time spent in direct contact with inmates.
10. The Commissioner also referred to the unchallenged evidence of the respondent's witnesses that second appointments were conducted taking between one and two hours, and that Clinical Support Workers would see patients a number of other times prior to release for between 15 minutes and one hour.
11. However the Commissioner accepted the submission of the respondent that the concept of "substantial … contact" should not be measured simply in terms of percentage of working time spent in the company of inmates. A consideration of the Commissioner's reasons discloses no error of principle or law.
12. In any event, we accept the submission of the respondent that even if the expression is properly interpreted as embodying a single composite notion of contact with inmates, there is insufficient basis upon which the decision of the Commissioner would be overturned. The Commissioner made findings on the evidence referred to above about the work undertaken by Clinical Support Workers and the nature and degree of contact with inmates. Those findings are not challenged and support a conclusion that the Clinical Support Workers have "substantial, regular and direct contact with inmates", even if that expression is construed as involving a single notion of the degree of contact with inmates.

History and context

1. Counsel for the respondent submitted that the Determination should be interpreted beneficially to provide for payment of the allowance to classes of employees that satisfy the relevant conditions. As we consider the words used are capable of being understood on their ordinary and natural meaning, it is unnecessary to apply any beneficial interpretation. On the same basis, it is similarly unnecessary to refer to extrinsic material to resolve ambiguity.
2. The appellant submitted it was not a "sensible industrial outcome" to extend the entitlement to the environmental allowance to non-nursing staff without reference to the working environment of nurses. Two contextual factors were said to be important in interpreting the intent and purpose of the Determination. Firstly, that the allowance is paid on an annualised and not pro-rata basis and second, that the Determination was drafted on the basis of an extension from nursing to non-nursing staff, thus using nurses as the applicable "benchmark".
3. We do not consider these factors outweigh the plain and ordinary meaning of the words of the Determination, which utilise the test of "substantial, regular and direct contact with inmates" to determine entitlement to the allowance. No contrary conclusion can safely be drawn from the fact that the drafters of the Determination elected to pay on the basis of an annualised allowance, once the conditions of "substantial, regular and direct contact with inmates" are established. Similarly, inferring an additional qualifying condition that the work environment be the same as that of nurses is not reasonably open on our view of the clear meaning of the words of the Determination.

Conclusion - error

1. In Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, the Full Bench held 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. It has long been held that an appellate body 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. Drake is also authority for the proposition that it is wrong to adopt a narrow approach on appeal, combing through the words of the first instance decision seeking error, or to transform error in form to one of substance (at 458).
2. In our view, for the reasons set out in this decision, the interpretation adopted by the Commissioner was correct. Applying these principles, and for the reasons set out above, we do not consider that the impugned decision demonstrates relevant error justifying the grant of leave to appeal.

Substantial issue of principle or law

1. The appellant further contended that the appeal raised substantial issues of principle or law having wider implications for the jurisprudence of the Commission. We do not agree. The dispute notification pursuant to s 130 of the Act raised a confined question of interpretation specifically addressed to the Clinical Support Workers working in the Connections Program of the Justice Health and Forensic Mental Health Network. The evidence adduced related to the work performed only by them. Any extension of entitlement of the environmental allowance to other classes of employees would not be automatic, but rather would require assessment under the Determination as interpreted by the Commissioner. The appeal raises no question of principle in relation to the jurisdiction of the Commission, or the proper approach to the interpretation of industrial instruments generally.
2. Further, we do not consider it is a "test case" determining the entitlement to the environmental allowance by employees more broadly. Indeed, the appellant's Narrative on Leave to Appeal quite properly put the matter no higher than a "potential" test case that "may also extend" to other employees and "may" result in unforeseen expenditure of further and significant public money, which was not in any way quantified. As submitted by the respondent, this is speculation and unsupported by any evidence.
3. In the circumstances, on the basis of these grounds the public interest does not warrant the confined question of construction of the Determination being reconsidered by the Full Bench.

Conclusions - Leave to appeal

1. An appeal does not lie as of right against a first-instance decision of the Commission. Leave has to be sought and granted before any appeal is heard.
2. The appellant did not challenge the jurisdiction of the Commissioner to grant the relief that he did and there was no challenge to any factual finding made. The grounds of appeal are limited to the assertion that the Commissioner erred in his interpretation of the Determination.
3. The appellant disagrees with the interpretation of the Determination applied by the Commissioner. This does not mean that the Commissioner fell into relevant error. The Commissioner referred to relevant authority, summarised the usual principles to be applied to interpretation and proceeded to apply such authority in an orthodox exercise of interpreting the Determination. It is not suggested that he misstated the proper approach to be applied.
4. The Commissioner then considered the evidence of the respondent's witnesses relating to the work performed which was unchallenged and the evidence of Mr Grimmond, which was challenged under cross-examination. He set out in the decision his analysis of that evidence. On the basis of that analysis, it was in our view reasonably open to the Commissioner to come to the view that the Clinical Support Workers had "substantial, regular and direct contact with inmates" and were thereby entitled to the environmental allowance.
5. We consider appellate intervention is not warranted. No error has been disclosed in the decision at first instance on the bases argued by the appellant in its application. Aside from the question of error, there are no matters of principle at large that justify an appeal being heard. That being so, there is no proper basis on which, in the public interest, leave should be granted.
6. It was for these reasons we refused leave.

Order

1. The Full Bench confirms its order: 1. Leave to appeal is refused. 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: 10 April 2018