Industrial Relations Commission

New South Wales

Case Name: New South Wales Nurses and Midwives’ Association v Health Secretary on behalf of Western NSW Local Health District

Medium Neutral Citation: [2018] NSWIRComm 1079

Hearing Date(s): 10 October 2018

Date of Orders: 17 December 2018

Decision Date: 17 December 2018

Jurisdiction: Industrial Relations Commission

Before: Commissioner Constant

Decision: Applications by the notifier in relation to alleged breaches of cl 48(vii) of the Public Health System Nurses’ and Midwives (State) Award (“the Status Quo Provision”) dismissed. Orders in relation to Status Quo Provision refused.

Catchwords: INDUSTRIAL DISPUTE – application for orders to preserve status quo – Award provision does not require freeze in time – Award requires work procedure and practices preserved while dispute procedures ongoing

Legislation Cited:Health Services Act 1997 (NSW), s 116HIndustrial Relations Act 1996 (NSW), ss 130, 135(6), 136(1), 137

Cases Cited:

Kucks v CSR Limited (1996) 66 IR 182Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary

for Industrial Relations [2018] NSWIRComm 1061Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2012] FWA 2045

Texts Cited: Macquarie Dictionary

Category: Principal judgment

Parties:New South Wales Nurses and Midwives’ Association (notifier)Health Secretary on behalf of Western NSW Local Health District (respondent)

Representation:

Counsel:Mr A Guy (notifier)Mr D Mahendra (respondent) Solicitors:Maddocks (respondent)

File Number(s): 2018/00018934 and 2018/00258109

JUDGMENT1 On 24 September 2018, the Chief Commissioner allocated to me for arbitration

two disputes notified by the New South Wales Nurses and Midwives’

Association (“the notifier”) against Western NSW Local Health District (“the

respondent”) pursuant to s 130 of the Industrial Relations Act 1996 (“the Act”)

(2018/18934 and 2018/258109) (“the Disputes”). The Chief Commissioner

indicated that the purpose of the allocation was for me to determine whether

there had been a breach of cl 48 (vii) (“the Status Quo Provision”) of the Public

Health System Nurses’ and Midwives (State) Award (“the Award”).

Procedural history

2 As I am allocated for arbitration a specific aspect of the Disputes, and matters

will remain to be resolved either between the parties or by further arbitration, it

is worthwhile setting out in brief the procedural history of the Disputes.

3 Dispute matter number 2018/18934 was filed on 18 January 2018 (“the First

Dispute”).

4 The First Dispute was subject to compulsory conference on 29 January 2018

and 6 February 2018. A certificate pursuant to s 135(6) of the Act was issued

on 6 February 2018. Procedural directions were made on 26 February 2018

and the First Dispute was initially set down for hearing on 23 and 24 May 2018.

5 On 10 April 2018 the respondent filed a notice of motion in the First Dispute.

This motion was heard on 23 May 2018 in lieu of the hearing on the

substantive matters in the First Dispute. The decision on this motion is

reserved.

6 Dispute matter number 2018/258109 was filed on 22 August 2018 (“the

Second Dispute”).

7 The Second Dispute was the subject of a compulsory conference before me on

28 August 2018. Following unsuccessful conciliation on that date, I issued a

certificate pursuant to s 135(6) of the Act and made procedural directions for

the arbitration of the Second Dispute.

8 In accordance with directions made on 28 August 2018, the notifier filed

evidence and submissions in the Second Dispute on 13 September 2018.

9 On 13 September 2018 the respondent wrote to the Commission requesting

that the Disputes be joined and heard together.

10 On 24 September 2018, at a Directions Hearing for the Disputes, the Chief

Commissioner considered, amongst other things, the respondent’s request of

13 September 2018 and allocated the Disputes to me to determine whether

there had been a breach by the respondent of the Status Quo Provision of the

Award. The Chief Commissioner did not formally join the Disputes and left the

question of procedural matters to be determined by me.

11 The respondent filed evidence and submissions on 27 September 2018 in the

Second Dispute in accordance with directions made in the Second Dispute on

28 August 2018, and on the basis of the Chief Commissioner’s allocation to me

of the Disputes on 24 September 2018, purportedly in the First Dispute.

Questions for determination

12 At commencement of the hearing on 10 October 2018, the parties agreed that

the Commission as presently constituted was to determine the following two

questions:

(1) Did the respondent 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 allegations against Ms Mines in circumstances where from at least 5 December 2017 the notifier has alleged that the respondent had failed to comply with the Managing Misconduct Policy Directive (“the Policy Directive”) as the respondent had refused to provide Ms Mines with a copy of the investigation report?

(2) Did the respondent breach 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?

Evidence and submissions for the determination of the questions regarding the Status Quo Provisions

13 At commencement of the hearing on 10 October 2018, the parties agreed that

evidence in the Second Dispute should be taken to be evidence in the First

Dispute, for the purpose of determining the questions in paragraph [12] only.

14 The notifier tendered two statements by Hannah Mines, the first dated 28

March 2018 (“Exhibit 4”) and the second dated 13 September 2018 (“Exhibit

5”).

15 The respondent tendered an Exhibit Folder which was marked “Exh 3” in the

proceedings and the following statements:

(1) Statement of Debra Bickerton dated 18 April 2018 (“Exhibit 1”);

(2) Statement of Jenny Johnson dated 17 April 2018 (“Exhibit 2”);

(3) Statement of Jenny Johnson dated 27 September 2018 (“Exhibit 6”);

(4) Statement of Tracey Wittich dated 27 September 2018 (“Exhibit 7”); and

(5) Statement of Sandra Duff dated 27 September 2018 (“Exhibit 8”).

16 No objections were taken to any evidence on the basis that the evidence was

admitted for the purpose of determining the questions in paragraph [12] only.

17 The notifier filed written submissions on 13 September 2018 and the

respondent filed written submissions on 27 August 2018.

Factual Background

18 For the purpose of determining the two questions set out at paragraph [12]

above, there is little dispute between the parties about the facts. As the

evidentiary material has been read on the basis that it should be accepted by

the Commission at this stage only in relation to the questions set out at

paragraph [12], I set out below matters of fact that are agreed, or where not

agreed, are set out as alleged by the relevant party, and I make factual

determinations only as necessary for the determination of the two agreed

questions on the Status Quo Provision.

19 Ms Mines is a Registered Nurse (“RN”). Ms Mines commenced employment

with the respondent at the Dubbo Base Hospital as a Trainee Registered Nurse

in August 2012. On 10 February 2014, Ms Mines commenced as a New

Graduate Registered Nurse.

20 In August 2015 Ms Mines was elected to the position of alternate delegate of

the Dubbo Base Hospital Branch of the notifier.

21 The notifier asserts that in Ms Mines’ role with the notifier, Ms Mines was

involved in campaigning and advocacy on behalf of nurses. The notifier alleges

that prior to Ms Mines’ involvement with the notifier, Ms Mines had an active

working relationship with Ms Johnson, but following Ms Mines’ election as set

out in paragraph [20], Ms Johnson’s attitude towards Ms Mines changed.

22 In the period from 23 May 2016 to 21 November 2017 Ms Mines worked in the

Ambulatory Care Unit at Dubbo Base Hospital; as this did not require Ms Mines

to work night shifts. This was approved by the Director of Nursing, Jenny

Johnson.

23 Ms Mines was placed in a Palliative Care CNS2 role for the month of October

2017.

24 On 27 October 2017, Ms Johnson wrote to Ms Mines informing Ms Mines of

allegations regarding Ms Mines’ conduct while working in Palliative Care (“the

Allegations”).

25 In November 2017, Ms Mines moved to the Extended Day Surgery Unit

(“EDSU”).

26 On 21 November 2017, Ms Debbie Bickerton wrote to Ms Mines setting out

proposed findings in relation to the Allegations, including a number of proposed

adverse findings in relation to Ms Mines’ conduct while working in Palliative

Care.

27 On 22 November 2017, the notifier wrote to Ms Bickerton seeking the

respondent’s investigation report and the information on which the respondent

relied to substantiate the allegations against Ms Mines.

28 On 1 December 2017, Ms Bickerton wrote to Ms Mines stating that the Local

Health District was under no obligation to provide a copy of the investigation

report and setting out an overview of the information Ms Bickerton took into

account in making the proposed findings.

29 On 5 December 2017, the notifier wrote to Ms Bickerton stating that the

information provided on 1 December 2017 was inadequate and invoking the

Status Quo Provisions under cl 48 of the Award. The notifier stated:

To be clear, the status quo in this instance would be that our member will not be responding to the proposed findings until the matter is resolved consistent with the procedures set out in Clause 48.

30 On 7 December 2017, Ms Bickerton wrote to Ms Mines setting out whether the

Allegations were substantiated or partially substantiated. This letter also

proposed remedial recommendations in relation to Ms Mines’ conduct.

31 On 12 December 2017 the notifier wrote to Ms Bickerton informing her that her

actions were in breach of cl 48(vii) of the Award.

32 On 14 December 2017 Ms Bickerton agreed to “maintain the status quo” and

agreed to hold the letter dated 7 December 2017 until Ms Mines had been

provided a further opportunity to comment on the proposed findings set out in

the letter of 21 November 2018.

33 On 12 January 2018 Ms Bickerton wrote to Ms Mines to inform Ms Mines that

she had concluded her investigation. Ms Bickerton made the same findings

and recommendations as contained in her letter of 7 December 2017 including

that Ms Mines undertake remedial action.

34 On 8 April 2018, Ms Mines applied for the temporary position of Clinical Nurse

Facilitator, in the Organisational Development Unit (“ODU”) at Dubbo Base

Hospital.

35 On or about 30 July 2018 Ms Mines was provided with a letter of appointment

from Mr Brett Meyers offering a temporary secondment to the ODU in the

position of Clinical Nurse Facilitator (“Letter of Appointment”). On 30 July 2018,

Ms Mines accepted the Letter of Appointment.

36 On 9 August 2018, Ms Sandra Duff (Executive Director, Workforce and

Culture) informed Ms Mines that her Letter of Appointment had been

withdrawn. Further, Ms Duff stated that recruitment to the temporary ODU

position would be put on hold until “outstanding matters have been resolved”. '

37 On 9 August 2018, the notifier wrote to the respondent and again invoked the

Status Quo Provision, seeking to maintain the status quo before the letter of

Appointment was rescinded. The notifier asserts that the respondent breached,

and remains in breach of, the Status Quo Provision by withdrawing the Letter

of Appointment.

38 The notifier asserts that, in addition to being in breach of the Status Quo

Provision, the respondent has engaged in behavior that constitutes continuing

victimisation of Ms Mines. As I am determining the questions on which the

parties agreed at the hearing on 10 October 2018, as a consequence of the

Chief Commissioner’s allocation of this matter to me on 24 September 2018, I

will only deal with the allegations of victimisation if these allegations touch on

matters relevant to whether there has been a breach of the Status Quo

Provision, and only to the extent necessary to determine the agreed questions.

Relevant Award clause

39 The Status Quo Provision (sub-clause 48(vii) of the Award) is in the following

terms:

(vii) The status quo before the emergence of the issue must continue whilst these procedures are being followed. For this purpose '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 caused the issue to arise, was made.

The Employer must ensure that all practices applied during the operation of these procedures are in accordance with safe working practices.

40 Relevantly, the immediately preceding sub-clause (sub-clause 48(vi) of the

Award) is in these terms:

(vi) 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.

Notifier’s submissions

41 The notifier submitted that by way of letter dated 5 December 2017, the notifier

advised the respondent that an issue had arisen, and that the status quo, as it

existed before the emergence of that issue, must remain.

42 The notifier submitted that as at 5 December 2017, no final decision had been

made about Ms Mines' conduct in Palliative Care, and no corrective action had

been taken by the respondent in relation to Ms Mines' employment. What

follows is that, inconsistent with the notifier invoking the Status Quo Provision,

the respondent continued its investigation into Ms Mines' conduct, made

findings and issued a letter to Ms Mines requiring her to undertake corrective

action. By continuing its investigation and issuing Ms Mines with a letter

requiring her to undertake corrective action, the respondent breached the

Status Quo Provision.

43 The orders sought by the notifier are set out in the written submissions filed on

13 September 2018. The notifier submitted that the Commission should make

an order requiring the respondent to maintain the status quo, as it existed as at

5 December 2017. In making an order that accurately reflects the status quo as

it existed as at 5 December 2017, the notifier submitted that it is appropriate for

the Commission to make an order rescinding the letter of 9 August 2018 which

withdrew the Letter of Appointment.

44 The notifier also sought an order that the respondent “cease its victimisation of

Ms Mines”. As I am only determining the questions set out at paragraph [12],

matters relating to alleged victimisation will not be determined by me at this

time.

Respondent’s submissions

45 The respondent submitted that the Status Quo Provision in the Award is

different from the status quo provisions which read, for example: "until the

matter is resolved by agreement, conciliation or arbitration, the status quo shall

remain" and the intention of the Status Quo Provision is to ensure that work

practices and procedures continue in accordance with the existing procedures

and practices until the relevant issue is resolved.

46 The respondent referred to the interpretation of a status quo clause by Senior

Deputy President Harrison of Fair Work Australia (as it then was) in Transport

Workers' Union of Australia v Linfox Australia Pty Ltd [2012] FWA 2045 (16

March 2012) (“Linfox”). In Linfox the relevant status quo provision read as

follows:

Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.

47 The Senior Deputy President stated at [26] to [29]:

[26] I first make a general observation about the absence in clause 22.3 of words that expressly provide for the type of freeze in time for which the TWU contends. I am aware of clauses which contain words to the effect the status quo "means the circumstances existing immediately prior to the change or action which has caused the disagreement" or that provide that "work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring". Clause 22.3 is to be contrasted with these types of clauses.

[27] I turn to a consideration of the opening words of clause 22. I first note the scope of the matters covered by the settlement of disputes procedure. It describes a very broad scope of disputes or grievances which can be dealt with. It covers "any dispute or grievance that arises at the workplace between an employee and Linfox about the Agreement or the employment relationship ...". It is against that broad scope of disputes or grievances that agreement has been reached that it is only "work" which will continue in accordance with the status quo. The reference only to "work" is significant. The clause does not provide that everything that existed prior to the dispute arising is to remain in place. The clause does not read, for example, "until the matter is resolved by agreement, conciliation or arbitration, the status quo shall remain".

[28] I am persuaded that the better construction to place on "work" in clause 22.3 is that it means the activity of employees involving mental or physical effort, their job, duty, task or undertaking. In this context it is used as part of the expression "work will continue", that is work is to be something that is capable of continuing. It is something which is to be carried on and not stop.

[29] To the extent the second sentence of clause 22.3 may support either the TWU or Linfox's constructions, I am inclined to find that it is more consistent with that urged upon me by Linfox. A provision like that in the second sentence is commonplace in agreements and ensures neither party is prejudiced by the arrangements put in place pending the final outcome of a dispute. It is however to be noted that it refers to "the continuance of work" which is not to prejudice any party is (sic) to the final settlement. The construction I have placed on work in the first sentence also sits comfortably with a similar construction on that word in this sentence.

48 The respondent submitted that in the present matter “status quo” is defined as

the "work procedures and practices" in place immediately before the issue

arose. The respondent submitted that the Status Quo Provision is clearly

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.

49 Further, according to the respondent even if "work practices and procedures"

included the process by which the respondent makes factual findings based on

an investigation, it is clear that this "practice or procedure" existed prior to the

"issue" of the respondent not agreeing to provide a full copy of the

investigator's report. Accordingly, the "status quo" did not change when the

respondent continued to follow the procedure it had in place prior to

5 December 2017.

50 The respondent submitted that there is no "work practice or procedure" that is

applicable to the withdrawal of the Letter of Appointment. Further, the

respondent contended that if a broader interpretation of the Status Quo

Provision applies such that nothing should change until the dispute is resolved

then the same would apply to Ms Mines. That is, the meaning of "status quo"

would include Ms Mines remaining in her current position and not being

appointed to the temporary secondment position of Clinical Nurse Facilitator.

51 The respondent read evidence in support of the submission that Ms Mines'

failure to demonstrate acceptance or willingness to address the remedial

actions set out in the 12 January 2018 letter was only one factor leading to the

decision to withdraw the Letter of Appointment. The respondent submitted that

even if the respondent was wrong to rely on Ms Mines' failure to address the

remedial action because of the Status Quo Provision, the practical outcome

would have been the same. That is, even absent the "issue" arising, Ms Duff

still would have withdrawn the Letter of Appointment due to concerns that Ms

Mines should not be performing work in an autonomous role given the nature

of the complaints and concerns about her communication style and conduct.

52 I am limited to determining the two questions at paragraph [12]. Submissions

and evidence about the reason for the withdrawal of the Letter of Appointment

will be considered only as they bear on these questions.

53 The respondent submitted that the practical effect of the matters outlined in

paragraph 51 is that even if the respondent has breached the Status Quo

Provision by relying on Ms Mines' failure to demonstrate acceptance or

willingness to address the remedial actions set out in the 12 January 2018

letter, the Commission still cannot order the respondent to appoint Ms Mines to

the temporary secondment position of Clinical Nurse Facilitator having regard

to the other matters of concern.

54 The respondent submitted that if the Commission determines that the

respondent has breached the Status Quo Provision, the relief sought by the

notifier appears to be orders for mandatory injunctions that the respondent

abide by unspecified obligations which it says are set out in the Policy Directive

and the Status Quo Provision. The respondent submitted that such orders are

beyond the power of the Commission. There is no industrial action taking

place, thus no orders are available under s 137 of the Act and the orders

sought are not orders of the kind authorised by s 136(1) of the Act.

55 In respect of the Commission’s powers to make orders as sought by the

notifier, the respondent referred to Notification under section 130 by the New

South Wales Local Government, Clerical, Administrative, Energy, Airlines and

Utilities Union of a dispute with the Sydney City Council and others [2003]

NSWIRComm 223, in which the Commission dealt with an application to

restrain the Council of the City of Sydney from, amongst other things, changing

the terms and conditions of employment, including the practice of job and

finish, of employees transferring to the Council of the City of Sydney from

South Sydney and Leichhardt Councils.

56 The employer in that case argued: there was no industrial action, thus no

orders were available under s 137; the orders sought were not orders of the

kind authorised by s 136(1)(d); it would be fruitless making any further

recommendations pursuant to s 136(1)(a); and, s 136(2) referred to actions

and not orders that the Commission might take.

57 The respondent submitted that the Commission should dismiss the notifier’s

applications insofar as the applications rely on the Status Quo Provision.

58 The respondent further submitted, that in respect of the Second Dispute, in

circumstances where it is clear on the evidence that the respondent's decision

makers deny making decisions because Ms Mines is a union member, and

there is no reason to reject their evidence, the Commission should dismiss the

notifier's application in its entirety. As I am limited to determining the two

questions at paragraph [12], I am unable to dismiss the notifier's application in

its entirety.

Consideration

59 The respondent accepted that on 5 December 2017, the notifier invoked the

disputes resolution clause in cl 48 of the Award. However, the respondent

submitted there was no basis for the disputes resolution clause to be invoked

at that time. The allegation as at 5 December 2017 was that the respondent

had not provided a full copy of the investigation report. The notifier argued that

the obligation to provide that investigation report arises out of the Policy

Directive. The parties are at odds as to the interpretation of the Policy

Directive.

60 Counsel for the respondent submitted that the Commission cannot determine

the interpretation of the Policy Directive in respect of whether there was an

obligation to provide the full copy of the investigation report because that issue

is not an award interpretation issue. In light of Public Service Association and

Professional Officers’ Association Amalgamated Union of New South Wales v

Secretary for Industrial Relations [2018] NSWIRComm 1061, it is not clear that

the respondent is correct in that the Commission is precluded from interpreting

the terms of the Policy Directive. However, the respondent subsequently

submitted that the real dispute between the parties is “What does the Status

Quo Provision mean?”, and whether the Status Quo Provision has any work to

do in this type of situation. I agree that this is the crux of the two questions set

out at paragraph [12]. Depending on my determination of these questions, it

may be unnecessary for me to interpret the Policy Directive, and accordingly

the question of whether or not the Commission has power to do so will not

arise.

What does the Status Quo Provision mean?

61 In oral submissions, counsel for the notifier referred to the principle of award

interpretation set out in Kucks v CSR Limited (1996) 66 IR 182 at 184

(“Kucks”), that the strict reading of an award clause or a narrow and pedantic

approach are misplaced. This submission was advanced in support of a

reading of the Status Quo Provision to the effect that the status quo means the

circumstances existing immediately prior to when the issue arose should

continue once the Status Quo Provision is (properly) invoked.

62 However, Madgwick J went on to say in Kucks at 184 (and cited in Linfox at

[18] and Health Services Union NSW v Ministry of Health; re infectious

cleaning allowances [2018] NSWIRComm 1009 at [12];

But the task remains one 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.

63 The notifier submitted that the simple and most appropriate reading of the

Status Quo Provision is that the status quo, as it existed at the time that the

disputes resolution clause was invoked, continues. That would mean that the

letter dated 12 January 2018 from Ms Bickerton has no effect and, as the

notifier submitted, no remedial action had been decided upon.

64 It is apparent that the language used in (vii) of cl 48 requires something

different from what the notifier seeks to invoke as the simple and most

appropriate reading. The Status Quo Provision says:

The status quo before the emergence of the issue must continue whilst these procedures are being followed.

65 The “procedures” referred to in the Status Quo Provision are the dispute

resolution procedures of the Award. The Status Quo Provision then says,

For this purpose “status quo” means the work procedures or practices in place:

(a) immediately before the issue arose;

(b) immediately before any change to those procedures or practices, which caused the issue to arise, was made.”

66 I am not free to give Status Quo Provision the meaning submitted by the

notifier on the basis that such an interpretation may be fair or just. What the

text of the Status Quo Provision requires is that the work procedures and

practices in place continue as they existed before the notification. The

subsequent question is: “what is the meaning of “work procedures and

practices”?”

67 In determining the meaning of “work procedures and practices”, I will apply the

principles governing the interpretation of awards which were set out by

President Walton in Public Service Association and Professional Officers'

Association Amalgamated Union of New South Wales v Secretary of the

Treasury [2014] NSWIRComm 23, at [115] (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 at [27]).

(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…;

(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) … the meaning of the text may require consideration of the context (which includes, … consideration … [of] 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;

(5) … it is proper to pay regard to "the purposes for which a provision is intended", … provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives …[and] 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. 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.

(Footnotes omitted)

68 While the parties submitted that proper construction of “work procedures or

practices” was that which supported their case, neither party provided me with

a definition of the term “work procedures and practices” which assisted

construction of the clause.

69 In Linfox Senior Deputy President Harrison dealt with the construction of a

status quo clause in the Linfox Road Transport and Distribution Centres

National Enterprise Agreement 2011 which included the requirement that “work

will continue”. The relevant provision in that agreement said:

Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.

70 In construing “work procedures and practices” in context, I consider the

construction given to the noun “work” in Linfox is relevant:

I am persuaded that the better construction to place on “work” in clause 22.3 is that it means the activity of employees involving mental or physical effort, their job, duty, task or undertaking. In this context it is used as part of the expression “work will continue”, that is work is to be something that is capable of continuing. It is something which is to be carried on and not stop.

71 However, the Status Quo Provision differs from the clause in Linfox in that cl

48(vii) is directed at something other than simply continuation of “work” during

a dispute, as this is required under cl 48(vi) of the Award. In this regard, the

respondent says that the relevant clause in Linfox is broader than what is

contemplated by the Status Quo Provision.

72 Counsel for the respondent submitted in oral submissions that what the Status

Quo Provision requires is that the work procedures and practices in place

before the emergence of the relevant issue must continue, and the Status Quo

Provision is directed at a situation where there has been a change to work

practices or procedures, for example, a change in shift time where the parties

are in dispute as to the change in that work practice or procedure, or a

restructure where the parties are in dispute as to redundancies arising from the

restructure. Counsel for the respondent submitted that in those types of

situations, the Status Quo Provision requires that the practices or the

procedures of the employer simply continue until the Commission or the parties

can resolve that dispute about what is occurring in the workplace.

73 In the Status Quo Provision “work” is used as an adjective. The Macquarie

Dictionary Online (seventh edition, 2018) defines the adjective “work” as “of,

for, or concerning work”. I do not consider it necessary to engage in a pedantic

approach (see Kucks at 184) as to the proper grammatical placement of the

adjective; it is readily apparent to me that the purpose of the adjective “work” is

to modify the nouns “practice” and “procedure”.

74 Looking to the ordinary and grammatical meanings of “practice” and

“procedure”, the Macquarie Dictionary Online (seventh edition, 2018) provides

14 definitions of “practice” and four definitions of “procedure”.

75 I consider that the relevant definition of “practice” as it is used in the Status

Quo Provision and the Award is “habitual or customary performance” and the

relevant definition of “procedure” as it is used in the Status Quo Provision and

the Award is “the act or manner of proceeding in any action or process;

conduct”.

76 Although his Honour said in Public Service Association and Professional

Officers' Association Amalgamated Union of New South Wales v Secretary of

the Treasury [2014] NSWIRComm 23 at [115] and set out above, “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” he went on to say at [127]-[128]:

127 Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself.

128 In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible.

77 I was not taken to any evidence as to the history of, or the parties’

understanding or intention about, or purpose of, the Status Quo Provision. No

documentation was tendered nor evidence led to persuade me that attention

was given to the words of the clause in the course of negotiating the Award

which would lead me to form a view that the words used in the Status Quo

Provision should be read as anything other than its ordinary and grammatical

meaning.

78 Neither party referred me to a decision in which this Commission has

interpreted a clause in terms similar to the Status Quo Provision, nor provided

assistance as to the Commission’s consideration of the term “work procedure

or practice”. However, the respondent referred me to the Linfox decision.

79 Relevantly, at paragraph [26] in Linfox Senior Deputy President Harrison

observed the absence in the relevant clause in that case

of words that expressly provide for the type of freeze in time for which the TWU contends [and noted that she was] aware of clauses which contain words to the effect the status quo "means the circumstances existing immediately prior to the change or action which has caused the disagreement" or that provide that "work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring". Clause 22.3 is to be contrasted with these types of clauses.

80 The type of clause to which her Honour referred would produce the result that

is urged by the notifier, that is that the situation as it existed before the clause

was invoked is preserved, and nothing may change without breaching the

clause. It is clear from the text that the Status Quo Provision does not mean

that nothing at all may change once the dispute resolution procedure is

invoked, or there is a “freeze in time” until the dispute between the parties is

resolved.

81 I consider that the correct construction of the Status Quo Provision in the

context of the Award using the principles enunciated by President Walton in

Public Service Association and Professional Officers' Association

Amalgamated Union of New South Wales v Secretary of the Treasury is that

the work practices or the procedures of the employer simply continue until the

Commission or the parties can resolve that dispute about what is occurring in

the workplace.

82 I consider this to be a reasonable and practical construction of the clause in

context. This construction deals with the mischief sought to be remedied; that

is, the intention of the clause is to prevent an employer moving to a new

practice (habitual or customary performance) or procedure (the act or manner

of proceeding in any action or process; conduct) while the dispute resolution

process is underway, provided that the relevant practices or procedures are

safe. This construction is not at odds with a beneficial or generous

construction, and is a desirable policy.

83 In agreeing with the respondent’s construction set out at paragraph [72] above,

it should not be inferred that I agree that the examples provided by the

respondent being “a change in shift time where the parties are in dispute as to

the change in that work practice or procedure or a restructure where the parties

as to redundancies arising from the restructure” necessarily restrict or limit the

work practices or procedures which may be subject to the status quo

requirement. 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.

Is the Policy Directive a work procedure or practice?

84 Counsel for the notifier submitted that if the Commission was to find that the

“status quo comprehends work procedures and practices”, which I have done,

that the Policy Directive is a work practice or procedure that continues pursuant

to the Status Quo Provision.

85 The respondent submitted that the Status Quo Provision is clearly 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.

86 Looking to the mischief that is sought to be remedied by the Status Quo

Provision, and the context and placement of the Status Quo provision directly

under sub-clause 48(vi) which requires the continuation of work I consider that

the Status Quo Provision is directed at ensuring that the manner in which work

is performed continues unchanged during the relevant period.

87 The Policy Directive sets out mandatory requirements for managing alleged or

suspected misconduct by staff of the NSW Health Service or visiting

practitioners. Such allegations will, in most circumstances, touch on the

employees’ jobs, duties, tasks or undertakings (or “work” in accordance with

Linfox). Based on my construction of the Status Quo Provision set out above,

and applying a beneficial approach, I consider that the Policy Directive sets out

or facilitates work practices and procedures which would be subject to the

Status Quo Provision.

Is the Letter of Appointment a work procedure or practice?

88 The Letter of Appointment was tendered as Annexure “B” to the Statement of

Ms Duff (Exh 8). The Letter of Appointment is a letter to an individual employee

offering a position for a temporary period. The Letter of Appointment clearly

touches on Ms Mines’ work, however it does not set out a procedure: (habitual

or customary performance) or a practice (the act or manner of proceeding in

any action or process; conduct).

89 I agree with the respondent that the Letter of Appointment was not concerned

with a "work practice or procedure" and retraction of the Letter of Appointment

did not result in a change to a work practice or procedure.

Was there a breach of the Status Quo Provision?

90 The respondent submitted that if I were to determine that "work practices and

procedures" included the Policy Directive, it is clear that this "practice or

procedure" existed prior to the "issue" of the respondent not agreeing to

provide a full copy of the investigator's report. Accordingly, the respondent

submitted that the "status quo", that is the work practice or procedure, did not

change when the respondent continued to follow the Policy Directive it had in

place prior to 5 December 2017.

91 There was no evidence relied on by the notifier to support a contention that a

work practice or procedure, or more specifically the Policy Directive, had been

changed in breach of the Status Quo Provision.

92 The statement of Ms Mines made on 28 March 2018 (Exh 4) provides evidence

of the notifier’s assertions as to what was required by the Status Quo Provision

(see for example, Annexure F, letter from Mr Brett Holmes to Ms Bickerton

dated 5 December 2017 and Annexure J, letter from Mr Holmes to Ms

Bickerton dated 21 December 2017). However, neither that statement nor the

statement of Ms Mines made on 13 September 2018 (Exh 5) provide evidence

about a change to the Policy Directive after 5 December 2017.

93 In the absence of evidence to the contrary, I accept the respondent’s

submission that the "status quo" for the purposes of the Award did not change

when the respondent continued to follow the Policy Directive it had in place

prior to 5 December 2017. As a consequence of this finding, it is not necessary

for me to determine whether or not the Commission has power to interpret the

Policy Directive in respect of whether there was an obligation to provide the full

copy of the investigation report.

94 I have determined that the Letter of Appointment was not concerned with a

"work practice or procedure" and retraction of the Letter of Appointment did not

result in a change to a work practice or procedure. For that reason, the "status

quo" for the purposes of the Award did not change when the respondent

retracted the Letter of Appointment.

95 I answer the questions posed in paragraph [12] as follows:

(1) no; and

(2) no.

96 As I have determined that there has been no breach of the Status Quo

Provision and that the answer to both questions is “no”, I do not need to

consider whether the Commission may make orders in the form sought by the

notifier and opposed by the respondent.

97 As the parties agreed at the hearing on 10 October 2018 that I am limited to

determining the two questions at paragraph [12], I have not made any findings

in relation to the alleged victimisation of Ms Mines. Nor have I made any

determination or findings as to whether Ms Mines was entitled to the full

investigation report. These are not matters before me for arbitration of the

questions agreed between the parties and set out at paragraph [12].

Proper name of the Respondent

98 As a final matter, I deal with the proper description of the respondent in

proceedings before the Industrial Relations Commission. The correct name of

the respondent, for the purposes of industrial proceedings, is the Health

Secretary (see Health Services Act 1997 (NSW) s 116H). The title of the

respondent for these proceedings will be amended to: “Health Secretary on

behalf of Western NSW Local Health District” and the title of the proceedings

will therefore be “New South Wales Nurses and Midwives’ Association v Health

Secretary on behalf of Western NSW Local Health District”.

Orders

99 I make the following orders:

(1) The named respondent in proceedings 2018/00018934 and 2018/00258109 be amended to “Health Secretary on behalf of Western NSW Local Health District”.

(2) For the purposes of determining whether there has been a breach of sub-clause 48(vii) of the Public Health System Nurses’ and Midwives (State) Award, evidence and submissions in matters 2018/00018934 and 2018/00258109 should be taken to be evidence and submissions in both matters.

(3) The notifier’s application for a determination in matters 2018/00018934 and 2018/00258109 that the respondent was in breach and/or remains in breach of sub-clause 48(vii) of the Public Health System Nurses’ and Midwives (State) Award, and for orders in the form sought at paragraphs 51(a) and 51(b) of the written submissions of the notifier filed 13 September 2018 are dismissed.

(4) The matter be listed before a member of the Commission for directions as to the determination of the issues outstanding in matter numbers 2018/00018934 and 2018/00258109.

N J Constant

Commissioner

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