Australian Nursing Federation v Eastern Health

REASONS FOR JUDGMENT 1 This is an application by the Australian Nursing Federation for an order pursuant to subss (1) and (2)(a) of s 545 of the Fair Work Act 2009 (Cth) ("the Act") to restrain the respondent, Eastern Health, from contravening s 50 of the Act by ceasing to pay the uniform allowance for which cl 46.1(b) of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 ("the agreement") provides. The respondent has traditionally paid the allowance to employees covered by the agreement, but has recently taken the view that it is not, with certain presently irrelevant exceptions, obliged to do so, and proposes, as a result, to cease paying the allowance. 2 The agreement covers registered nurses, midwives and enrolled nurses. Clause 46 of the agreement, titled "Other Allowances", contains the presently controversial provisions. Clause 46.1 reads as follows: (a) Where an Employer requires an Employee to wear a particular type or style of uniform then the Employer shall provide this at no cost to the Employee. Payment in lieu of providing the uniform is not permitted. (b) Where a uniform is not provided by the Employer the Employee shall be paid a uniform allowance at daily or weekly rate [sic] set out in section C of Schedule B, whichever is the lesser amount in total. (c) Where laundering by or at the expense of the Employer is not provided, the Employee shall be paid a laundry allowance at the daily or weekly rate set out in section C of Schedule B, whichever is the lesser amount in total. (d) The uniform allowances but not the laundry [sic] shall be paid during all absences on leave, except absence on long service leave and absence on sick leave beyond 21 days. Where, prior to taking leave, an Employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave shall be the average of the allowance paid during the four weeks immediately preceding the taking of leave. (e) Where an Employer provides an Employee with uniforms, all articles so provided remain the property of the Employer. Also relevant is cl 39, which sets out a series of definitions applicable to the circumstances of registered nurses and midwives. The definition of "uniform" is "such apparel as may be required by the [e]mployer". 3 It is common ground that the respondent does not provide a uniform for the employees whose circumstances are presently relevant. According to the applicant, this has the result that the respondent is obliged, pursuant to cl 46.1(b) of the agreement, to pay a uniform allowance. It contends that para (b) is a free-standing provision which operates whenever a uniform is not provided. It is not dependent, according to the applicant, upon the respondent requiring its employees to wear a particular type or style of uniform, such as would invoke the terms of para (a) of cl 46.1. For the respondent, it is contended that paras (a) and (b) should be read together, such that, under para (a), where there is a requirement for a uniform to be worn, this must be provided at no cost to the employee, but, where the uniform is not so provided, the allowance must be paid under para (b). 4 In an agreed statement of facts, the parties placed into evidence a series of extracts from industrial instruments which contained antecedents of the provisions of the agreement which are presently of interest. Historically, the terms and conditions of registered nurses in Victoria were regulated by determinations of the Registered Nurses Board ("the Board") under the Labour and Industry Act 1958 (Vic). Clause 17 of Determination No 9 of 1975 was headed "Uniforms" and was in the following terms: (a) On commencing the first year of training a female trainee nurse shall be provided with dresses, aprons, caps, collars, cuffs and cape according to the specific requirements of the individual hospital, and a male trainee nurse shall be provided with the equivalent uniform according to the specific requirements of the individual hospital. Articles so provided remain the property of the hospital and if a trainee nurse leaves the hospital during the first year of training she shall hand in her uniform. After the first year of training the hospital shall provide such trainee with sufficient uniforms during each subsequent year or part thereof. (b) Any employee (other than a general trainee) shall be provided from the commencement of his or her service with an institution with necessary caps and also with sufficient uniforms. In lieu of the provision of such caps and uniforms the institution may, however, pay such employee an allowance at the rate of $1.00 per week (maximum) with a minimum payment of 20 cents for any one day or part thereof. Such allowance shall be paid during all absences on leave, except absence on long service leave and absence on sick leave beyond 21 days. In the interpretation clause of that determination, "uniform" was defined as "such dresses, aprons and headwear as may be required by the employer." 5 In 1976, the Industrial Appeals Court amended the then current determination of the Board (No 2 of 1976) to delete cl 17 and to substitute a new clause with the same number. So far as I can see, subcl (a) was unchanged, but subcl (b) became: Where uniforms are not provided for an employee (other than a general trainee) such employee shall be paid a uniform allowance at the rate of 38c per day or part thereof on duty or $1.90 per week whichever be the lesser amount. Where such employee's uniforms are not laundered by or at the expense of the hospital, the employee shall be paid a laundry allowance of 10c per day or part thereof on duty or 50c per week whichever be the lesser amount. The uniform allowance but not the laundry allowance shall be paid during all absences on leave, except absence on long service leave and absence on sick leave beyond 21 days. Where, prior to the taking of leave, an employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave shall be the average of the allowance paid during the four weeks immediately preceding the taking of leave. The definition of "uniform" remained unchanged. The effect of the new cl 17(b) was that an employer was no longer under an obligation to provide employees with uniforms. Now, the provision obliged the employer to pay the allowance if a uniform (as defined) was not provided. For reasons which will appear, it is appropriate to note that, at this stage, cl 17(b) was to no extent dependent upon, or interrelated with, subcl (a) of the clause. Subclause (a) continued to be concerned with trainees only. For the generality of nurses, subcl (b) had the effect referred to. 6 By the time of an Industrial Appeals Court National Wage Determination made in April 1977 (but not as the result of that determination), cl 17 of the Registered Nurses Board's Determination had acquired a subcl (c) in the following terms: Where an employer provides an employee with uniforms, all articles so provided remain the property of the hospital. 7 When the regulation of the terms and conditions of registered nurses in Victoria came under the Industrial Relations Act 1979 (Vic), the first award adopted the provisions of the previous determinations of the Registered Nurses Board. Clause 17(b), and the definition of "uniform", were as I have set them out above. 8 Extracts from the Registered Nurses Award No 3 of 1987 are in evidence, and they show that cl 17 had by then become cl 16, but was otherwise unchanged (save as to the amount of the allowance). The definition of "uniform" had by then become "such apparel as may be required by the employer". 9 In December 1992, the regulation of the terms and conditions of registered nurses in Victoria came under the Industrial Relations Act 1988 (Cth). The first federal award was the Nurses (Victorian Health Services) Award 1992. Clause 24 of Pt B of that award (which related to registered nurses) dealt with allowances of various kinds, including the "uniform and laundry allowance". Relevantly, the terms of that provision reflected those that had existed in the Victorian determinations, as set out above. The definition of "uniform" was unchanged. 10 An aspect of the 1992 award was that it covered, for the first time in a single instrument, enrolled nurses as well as registered nurses. The former had previously been covered by the Hospital and Benevolent Homes Award made under the Industrial Relations Act 1979 (Vic). Clause 26 of that award, as made in March 1988, was as follows: UNIFORMS, PROTECTIVE CLOTHING, &c. (a) Employees required by the employer to wear uniforms shall be supplied with an adequate number of such uniforms, overalls, caps, or aprons appropriate to the occupation free of cost to employees. (b) Uniforms, overalls, caps or aprons shall remain the property of the employer and be laundered and maintained by such employer free of cost to the employee. (c) In lieu of the provision of such caps and uniforms the employer may, by agreement with the employee, pay such employee a uniform allowance at the rate of 77c per day or part thereof on duty or $3.85 per week whichever be the lesser amount. Where such employee's uniforms are not laundered by or at the expense of the employer, the employee shall be paid a laundry allowance of 19c per day or part thereof on duty or 95c per week whichever be the lesser amount. The uniform allowance but not the laundry allowance shall be paid during all absences on leave, except absences on long service leave and absence on sick leave beyond 21 days. Where, prior to the taking of leave, an employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave shall be the average of the allowance paid during the four weeks immediately preceding the taking of leave. (d) Rubber gloves and all necessary protective clothing and safety appliances shall be provided free of cost for the use of employees and an adequate supply of same shall be maintained. This provision passed unchanged (save for the amount of the allowance) into the federal award of 1992 (as cl 63(f) of Pt C). 11 With the increased emphasis upon agreement making in federal industrial legislation from about the early 1990s, the applicant and employers in the Victorian public health sector engaged in enterprise bargaining which resulted in the making of the Nurses Public Health Sector Agreement 1995 and, later, the ANF and the HSUA and the Inner and Eastern Health Care Network 1997 Public Sector Agreement. Neither agreement dealt with the subject of uniforms, but both were to be read in conjunction with the award of 1992, which continued to operate. 12 In the period 1999-2000, there was an industrial dispute which did not concern the parties to this proceeding, but which explains the subsequent development of the terms of the agreement. It seems that the Bairnsdale Regional Health Service had decided to introduce a very specific uniform for nurses which had to be purchased from the Service itself. According to the applicant, the cost of this uniform exceeded the allowance payable under the 1992 award. The other option offered to nurses by the Service was to supply a limited number of clothing items free of charge, and to withdraw the uniform allowance. Again, the applicant took the view that the items so provided were insufficient, such that nurses felt obliged to purchase additional uniform items to meet their needs. 13 It is not entirely clear from the parties' agreed statement of facts, but I would infer that the Bairnsdale dispute, and possibly its resolution, led the applicant to make a demand upon the respondent and other employers in the Victorian public health sector in the following terms: Where a particular style or quality of uniform or clothing is required by the employer, at least one set per shift per week must be provided by the employer. This and other industrial issues were considered in 2000 by a body known as the Central Agreement Implementation Committee. Ultimately, a decision of a member of the Australian Industrial Relations Commission, made on 31 August 2000 under s 111AA of the Workplace Relations Act 1996 (Cth) ("the WR Act"), included the following prescription: Where an employer requires a nurse to wear a particular type or style of uniform then the employer shall provide this at no cost to the employee. By a circular of 1 December 2000, the organisation of which the respondent was a member advised that the Commissioner's decision had "the status of a binding decision". 14 All of the clauses in the 1992 award were deleted in 2000 and replaced with new provisions which thereby became the Nurses (Victorian Health Services) Award 2000. The presently relevant provision of that award which related to registered nurses was cl 43.5, as follows: 43.5.1 Where uniforms are not provided by the employer the employee shall be paid a uniform allowance at the rate of 94 cents per day or for Mothercraft Nurses $1.11 per day, or part thereof on duty or $4.72 per week, or $4.52 per week for Mothercraft Nurses whichever be the lesser amount. Where such employee's uniforms are not laundered by or at the expense of the hospital, the employee shall be paid a laundry allowance of 25 cents, or for Mothercraft Nurses 21.8 cents per day or part thereof on duty or $1.23 or for Mothercraft Nurses 88.7 cents, per week whichever be the lesser amount. 43.5.2 Employees required by the employer to wear uniforms shall be reimbursed by the employer for an adequate number of such uniforms and aprons appropriate to the occupation. 43.5.3 The uniform allowances but not the laundry [sic] shall be paid during all absences on leave, except absence on long service leave and absence on sick leave beyond 21 days. Where, prior to taking leave, an employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave shall be the average of the allowance paid during the four weeks immediately preceding the taking of leave. 43.5.4 Where an employer provides an employee with uniforms, all articles so provided remain the property of the hospital. It will be noted that the provision no longer dealt separately with the position of trainees. By default, the general prescription requiring the payment of an allowance where uniforms were not provided became the opening subclause in the clause. It may also be noted that cl 43.5.2 was new in relation to registered nurses. As noted above, it had previously been part of the provision applying to enrolled nurses. It was, I would have to say, a curiously worded provision and was not the subject of any submission in the present case. 15 In the 2000 award, the provisions applicable to enrolled nurses were to be found in cl 61.7, and were as follows: 61.7.1 Employees required by the employer to wear uniforms shall be reimbursed by the employer for an adequate number of such uniforms and aprons appropriate to the occupation. 61.7.2 Uniforms and aprons supplied by the employer shall remain the property of the employer and be laundered and maintained by such employer free of cost to the employee or the employee shall be reimbursed by the employer for the cost of laundering such items. 61.7.3 In lieu of the provision of such caps and uniforms the employer may, by agreement with the employee, pay such employee a uniform allowance at the rate of $1.03 per day or part thereof on duty or $5.13 per week whichever be the lesser amount. Where such employee's uniforms are not laundered by or at the expense of the employer, the employee shall be paid a laundry allowance of 24.1c per day or part thereof on duty or $1.24 per week whichever be the lesser amount. 61.7.4 The uniform allowance but not the laundry allowance shall be paid during all absences on leave, except absences on long service leave and absence on sick leave beyond 21 days. Where, prior to the taking of leave, an employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave shall be the average of the allowance paid during the four weeks immediately preceding the taking of leave. 16 On 25 March 2003, a new agreement was certified under the WR Act: the Nurses (Victorian Public Sector) Multi-Employer Agreement 2000-2004. It was to be read in conjunction with the award of 2000. The only provision about uniforms which the agreement made was the following clause, which, as will be noted, picked up (and slightly modified) the terms of the August 2000 settlement: Where an employer requires an employee to wear a particular type or style of uniform then the employer shall provide this at no cost to the employee. 17 On 20 June 2005, a new agreement was certified under the Act of 1996: the Nurses (Victorian Public Sector) Multiple Employer Agreement 2004-2007. Relevantly to the present matter, it repeated the terms of the previous agreement. The nominal expiry date of the new agreement was extended on 19 June 2009 to 1 November 2011. However, that agreement was at the same time varied by way of the deletion of all its provisions and their replacement with a "revised consolidated agreement". The consolidated agreement included, for the first time, the uniform provisions which had hitherto been found only in awards. The substantive provisions were to be found in cl 48.1, as follows: 48.1 Uniform and Laundry Allowance (a) Where an Employer requires an Employee to wear a particular type or style of uniform then the Employer shall provide this at no cost to the Employee. Payment in lieu of providing the uniform is not permitted. (b) Where a uniform is not provided by the Employer the Employee shall be paid a uniform allowance at [sic] daily or weekly rate set out in section C of Schedule B, whichever be the lesser amount in total. (c) Where such Employee's uniforms are not laundered by or at the expense of the Employer, the Employee shall be paid a laundry allowance at the daily or weekly rate set out in section C of Schedule B, whichever be the lesser amount in total. (d) The uniform allowances but not the laundry [sic] shall be paid during all absences on leave, except absence on long service leave and absence on sick leave beyond 21 days. Where, prior to taking leave, an Employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave shall be the average of the allowance paid during the four weeks immediately preceding the taking of leave. (e) Where an Employer provides an Employee with uniforms, all articles so provided remain the property of the Employer. By cl 39.1(f), "uniform" was defined as "such apparel as may be required by the Employer". 18 The agreement (ie the agreement the subject of this proceeding) was approved under the Act on 29 June 2012. The relevant provisions are set out in para 2 above. 19 Counsel for the applicant submitted that cl 46.1(b) of the agreement entitled every employee to receive the allowance to which it referred, subject only to him or her not having been provided with a uniform by the employer. Counsel for the respondent submitted, on the other hand, that cl 46.1(b) was to be read with para (a) of the subclause, such that the "uniform" referred to in para (b) is a "particular type or style of uniform" required by the employer to be worn as provided for in para (a). If no "particular type or style of uniform" were required to be worn, no allowance was payable. 20 Counsel for the applicant countered this submission by reference to the history of the relevant provisions. He pointed out that para (b) had its origins in a provision of the determinations made under Victorian legislation, of which that of the Industrial Appeals Court in 1976 was a convenient starting point. I accept that submission. The present cl 46.1(b) differs from the registered nurses' provision of 1976 in minor stylistic and drafting respects only. Paragraph (a) of the subclause, by contrast, has a lineage back to the provision which emerged from the settlement of the Bairnsdale dispute in August 2000. It was, and is, intended to apply to a narrower class of situations than contemplated by para (b). There is nothing in the latter which limits "uniform" to the "particular type or style of uniform" mentioned in para (a). I would hold that the construction and operation of para (b) is not to be influenced by the terms of para (a). 21 That does not of itself, however, produce the result that every employee who is not provided with a uniform is entitled to receive the allowance for which para (b) provides. It remains to construe para (b) as a free-standing provision. It was submitted on behalf of the applicant that the default position, as it were, is that everyone is entitled to the allowance. The difficulty with that submission is that it takes no account of the definition of "uniform", which has accompanied the relevant entitlement provision from the outset. Reading that definition into cl 46.1(b), the result is that, when the apparel which the employer requires to be worn is not provided by it, the allowance is payable. If the employer does not require apparel to be worn, the allowance is not, in my view, payable. 22 What would constitute a requirement to wear apparel within the meaning of the definition? The use of "such" in the definition conveys the sense of identified or specified apparel. I do not think that the attendance of nurses at work unclad was ever in contemplation as the alternative to wearing the apparel required by the employer. Some indication of context is provided by the history: originally, the definition referred to "such dresses, aprons and headwear". Over time, these categories may have come to be regarded as too limited. However, some kind of specification of apparel remains necessary to satisfy the definition. 23 The context in which the defined term is used in cl 46.1(b) may also be useful in construing the term. The provision contemplates that the uniform to which it refers might in some situations be provided by the employer. I would think it unlikely that the framers of the provision in the Victorian determinations, or of the provisions in any of the more recent industrial instruments, had it in mind that an employer would provide a set of ordinary street clothes. What was in contemplation, in my opinion, was the provision of apparel suitable to the work of nurses in a well organised institution. Here there may, I accept, be a degree of overlap between what might be contemplated as a uniform under para (b) of cl 46.1 and the more limited sense conveyed by the wording of para (a), but, as I have said, I think it would be a mistake to seek to identify the meaning of para (b) by searching for consistency with para (a). 24 The construction of the definition of "uniform" in the agreement is problematic in the present case because of the alternative submission made on behalf of the applicant that the respondent's dress code amounts to a requirement as to apparel sufficient to invoke the definition. To the extent relevant, the code provides as follows: Policy/Guidelines: Rationale: This policy provides guidelines on the expected standard of dress for clinical and non clinical employees. It provides clarity on the wearing of mandatory and voluntary uniforms. Policy/Guidelines: Staff are required to maintain a high degree of personal cleanliness and tidiness at all times and, where required, to wear uniforms as approved by the Health Service. Eastern Health may require employees in specific occupational groups or services to wear a specific uniform. Eastern Health may also prescribe a voluntary uniform for different occupational groups. Where this is done, the uniform will be available for purchase by employees. Where clinical staff are engaged in work in patient care areas, footwear shall be in accordance with Occupational Health & Safety requirements. Footwear must be covered and heels must not compromise either the safety of the wearer, or others, or the ability of the wearer to perform his/her duties. Thongs, clogs, ballet style shoes or shoes with slippery soles and scuffs shall not be worn. Footwear that does not project a professional image (eg jogging shoes) must not be worn. … Where clinical staff are engaged to work in patient care areas, and no uniform is worn or provided, the dress standards are as follows: • Skirts and pants should be tailored - no leggings, denim jeans or tracksuit pants (leggings may be worn under a skirt). • Only collared shirts are to be worn, e.g. business shirts, polo shirts, etc • Underwear and undershirts should not be seen • Low cut tops, sleeveless tops and the exposure of midriffs are not acceptable • Tailored knee length shorts or culottes may be worn • Operating staff are to abide by ACORN dress code Where non-clinical staff (e.g. food service staff) are required to wear uniforms as specified by Eastern Health, [sic] will be required to adhere to any health and safety regulations relating to the wearing of uniforms and the personal grooming standards set out in this policy. Do these provisions of the respondent's dress code amount to such a requirement as would invoke the definition of "uniform" in the agreement? 25 It is, in my view, necessary to address this question at a number of levels. First, the code makes a distinction between situations in which a uniform is required to be worn and other situations. I accept, of course, that it is not for the respondent to foreclose the question arising under cl 39(f) of the agreement by its own terminology. But the relevance of this distinction under the code lies in the circumstance that the court is not presently concerned with a fact situation in which the respondent in terms requires a uniform to be worn. 26 Secondly, I would make a distinction between the stipulation of dress standards and a requirement for the wearing of apparel within the terms of cl 39(f). The requirement as to "personal cleanliness and tidiness" might be an example of the former. 27 Thirdly, I would not accept that a negative requirement falls within the terms of the definition. That is to say, a prohibition upon wearing certain things is not the same as the employer requiring that certain apparel be worn. 28 Fourthly, a statement in permissive terms (eg that culottes may be worn) does not fall within the terms of the definition because it does not constitute a requirement. 29 Fifthly, there is the more difficult issue of what might be called conditional requirements. The respondent's dress code contains some of these: for example, a nurse does not have to wear a skirt, but, if she does, it must be a tailored one, and a nurse does not have to wear a shirt, but, if he or she does, it must have a collar. To the extent that these requirements leave the nurse with a genuine, realistic, option as to the apparel which he or she wears, they would not, in my opinion, satisfy the definition of "uniform". In the case of a female nurse, for example, the requirement that skirts or pants be tailored does not fall within the definition because it leaves her with a choice whether to wear a skirt or pants (or a dress, I suppose). Also, the requirement that a garment be "tailored" is so general as not to amount to a requirement to wear certain apparel within the meaning of the definition. As to the collared shirt requirement, it may be accepted that a male nurse will wear a shirt, and that a female nurse will often do so, but, even then, the requirement that the shirt have a collar leaves the nurse with such a range of options - as is demonstrated by the examples given - as to take the situation outside the definition. I would not regard it as amounting to a requirement that certain apparel be worn. In the case of a female nurse, of course, the requirement must be viewed as applicable only in those situations in which she chooses to wear a shirt rather than a dress. 30 There is nothing that I can find in the respondent's dress code which amounts to a requirement of the kind referred to by the terms of the definition of "uniform" in cl 39(f) of the agreement. 31 There were two further submissions made on behalf of the applicant which need to be dealt with. The first was based on the circumstance that, prior to the making of the agreement, the consistent practice of the respondent was to pay the uniform allowance to all nurses, whether or not a "uniform" was required to be worn. This was, it was submitted, evidence of a "common understanding" about the meaning of the corresponding uniform provisions in previous state determinations and federal awards, and in the agreement of 2005 as varied in 2009, with the result that, when the agreement itself was made, it was to be assumed that the parties intended that cll 39(f) and 46(1)(b) would operate consistently with that understanding. Reliance was placed on the principle referred to by Gray ACJ in Shop Distributive and Allied Employees' Association v Woolworths Ltd (2006) 151 FCR 513, 520 [31]: There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners & Coal Stevedores Association (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 … at [44]. It will be noted that, in this passage, Gray ACJ referred not only to the principle now relied on by the applicant, but also to the caution with which its invocation in a particular case must be attended. 32 In the present case, the applicant relies on the principle referred to in Woolworths to contend for an outcome that the allowance is payable in all circumstances where a uniform is not provided, even in the absence of any kind of clothing or apparel requirement by the respondent. However, I have upheld the applicant's preferred construction of cl 46(1)(b) of the agreement. It is under the definition of "uniform" in cl 39(f) that the applicant has fallen short of the result which it sought. There can be no suggestion that cl 39(f) could accommodate an outcome of the kind for which the applicant contends. The principle is an aid to construction but, on the facts of the present case, such an aid would be neither necessary nor helpful, as, relevantly to the applicant's point, the words actually used in the agreement are free of ambiguity. 33 The other submission which the applicant made was that, of its nature, nursing was an occupation which made it appropriate, and in some instances essential, to wear clothes which had certain characteristics, and which made it inappropriate to wear the same clothes outside work. For example, it was said that garments had to permit sufficient movement to facilitate the lifting and manipulation of patients that nurses often had to do; they had to have short sleeves, to facilitate the washing of arms up to the point of the elbows; and they had to be such as could be frequently laundered (in which regard I would note, in passing, that it is uncontroversial that the respondent pays the laundry allowance to nurses covered by the agreement). There was also evidence that the respondent expects its nurses, when they go home after a particular day or shift, to change out of the clothing which they have worn at work, so as to avoid the risk of cross-infection. It is apparently regarded as undesirable for a nurse to wear the same clothes that he or she has just worn at work in non-working situations, such as meetings with friends or social events. 34 Considerations of these kinds are, in my view, such as would be expected to find expression in the requirements and policies of an employer of nurses. In the present case, to the extent that the respondent has relevant requirements and policies, they are to be found in the dress code to which I have referred. I have dealt with that aspect above. Nothing to which the applicant pointed in this final group of submissions amounted to a requirement sufficient to satisfy the definition of "uniform" in cl 39(f) of the agreement. 35 For the reasons stated above, the application must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.