Health Services Union NSW v NSW Ministry of Health in respect of the Illawarra Shoalhaven Health District [2014] NSWIRComm 58

Industrial Court New South Wales

Medium Neutral Citation: Health Services Union NSW v NSW Ministry of Health in respect of the Illawarra Shoalhaven Health District [2014] NSWIRComm 58 Hearing dates: 13/08/2014 and 15/08/2014 Decision date: 16 December 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President Decision: The Court orders: 1.The application for declaration filed on 16 May 2014, as amended, is dismissed. 2.Costs reserved. Catchwords: AWARD - application for declaratory relief pursuant to s 154 of the IR Act - proposal to remove the Assistant Chief Radiographer position at Wollongong Hospital - whether proposal was inconsistent with the award - whether the award required the position of Assistant Chief Radiographer to be established and maintained in a hospital with a Diagnostic Radiography department in which in excess of 24 FTE Medical Radiation Scientists (Diagnostic Radiographers) are employed and that a diagnostic radiographer be appointed to the same - construction of award - relevant principles - ordinary grammatical meaning of the phrase 'is an' - meaning of the expression 'at this level' - opening words of the provision read in context suggest that an employee is classified at that level once appointed to the position of Assistant Chief Radiographer - contextual factors support conclusion that classification structure affixes rates of pay after appointment - effect of award history - award history supports conclusion reached by textual and contextual analysis - no obligation exists under the Award by implication - tests for drawing an implication - application of rules applicable to the construction of contacts - implication not so obvious that it goes without saying - implication not necessary to give efficacy to the Award - may be distinguishable from position of Chief Radiographer - implication sought neither reasonable or equitable - managerial prerogative - technical issue - no legal obligation to establish in a hospital with a Diagnostic Radiography department in which in excess of 24 FTE diagnostic radiographers are employed, in addition to the position of Chief Radiographer, a position which is classified as Assistant Chief Radiographer Level 5 Grade 3 or to appoint a diagnostic radiographer to the same - declaration refused. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering [2003] FCA 260; (2003) 53 AILR 100-013 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Bryce v Apperley (1998) 82 IR 448 Canty v Paperlinx Australia Pty Ltd [2014] NSWCA 309 Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd [2001] FCA 1009; (2001) 108 IR 409 Health Employees Medical Radiation Scientists (State) Award and Anor [2006] NSWIRComm 34 Kucks v CSR Ltd (1996) 66 IR 182 McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 National Wage Case - August 1988 (1988) 25 IR 170 National Wage Case August 1989 (1989) 30 IR 81 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 Re Hospital Employees Medical Radiation Scientists (State) Award 1997, (Cahill J, 24 March 1997, unrep) Re Hospital Employees Medical Radiation Scientists (State) Award 1997, (Cahill J, 24 March 1997, unrep) Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Short v F W Hercus (1993) 40 FCR 511 State Wage Case - August 1997 (1997) 73 IR 200 State Wage Case - December 1993 (1993) 52 IR 157 State Wage Case - December 1994 (1994) 57 IR 1 State Wage Case 2001 [2001] NSWIRComm 119; (2001) 104 IR 438 State Wage Case April 1996 (1996) 64 IR 439 State Wage Case August 1989 (1989) 30 IR 107 State Wage Case February 1988 (NSW) (1988) 23 IR 340 State Wage Case June 1999 (1999) 88 IR 363 University of Western Australia v National Tertiary Education Industry Union [2003] FCA 1264 Category: Principal judgment Parties: Health Services Union NSW (Applicant) Illawarra Shoalhaven Local Health District (First Respondent) NSW Ministry of Health (Second Respondent) Representation: J V Murphy (Applicant) A B Gotting (First and Second Respondents) File Number(s): IRC 384 of 2014