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[2006] FCA 134
Federal Court of Australia
2006-02-22
Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Ms Jillian Bell has a grievance with her employer, the Minister for Health in the State of Western Australia. Her grievance concerns her treatment by management at the Princess Margaret Hospital with respect to her rostering arrangements. She has applied under s 178 of the Workplace Relations Act 1996 (Cth) for a penalty to be imposed on her employer for breaches of cl 26 of the Health and Disability Services - Support Workers - Western Australian Government - Award 2001. 2 Ms Bell commenced employment at the hospital as a casual cleaner/ patient care assistant on 12 June 2002. From 28 July 2002 until 23 November 2002 she was engaged in a cleaning position for 70 hours work per fortnight. The basis of this engagement was not the subject of any evidence before the Court. On 25 November 2002 she accepted a written offer of permanent employment as a cleaner. On 16 June 2003, Ms Bell accepted an offer of employment as a Patient Care Assistant Reliever. This position involves Ms Bell working shifts as a patient care assistant, relieving persons who occupy that substantive classification and who are not available for duty at particular times. 3 When engaged as a cleaner Ms Bell worked an average of 70 hours per fortnight. Whilst engaged as a relief patient care assistant, Ms Bell works an average of 80 hours a fortnight.
The award 4 The award applied to Ms Bell's employment at the hospital at all material times. Clause 7.12 of the award defines a casual employee as "an employee engaged for a period of less than one week." 5 Clause 12.1.1 of the award defines a full time employee as one engaged for an average of 38 ordinary hours per week. Under cl 12.2.2 a regular part time employee is one employed to work less than an average of 38 hours per week. In her cleaning position, Ms Bell (according to the award) was a regular part time employee and in her relief patient care assistant position is a full time employee. 6 Clause 12.2.4 of the award provides: "At the time of engagement the employer and regular part time employee will agree in writing, on a regular pattern of work, specifying at least the hours of work each day, which days of the week the employee will work and the actual starting and finishing times each day." 7 Under cl 12.2.5, any agreed change to the regular pattern of work is to be recorded in writing. 8 Clause 26 of the award is headed, "HOURS OF WORK". Clause 26.1 provides for the ordinary hours of work of full-time employees to be an average of 38 hours per week worked over any five days of the week in accordance with various cycles set out in later parts of the sub-clause. 9 The "cycles" referred to in cl 26.1 are: · 19 days with eight hours each over four weeks, with 0.4 of an hour each day accruing towards a day off in the cycle;
· 76 hours over a nine day fortnight with the 10th day as an unpaid rostered day off; and
· 40 hours per week or 80 hours per fortnight with two hours per week accruing to an entitlement of a maximum of 12 days off in each 12 months.
10 Clause 26.1.4 provides: "In addition to the work cycles in this subclause and by agreement between the employer and employee a work cycle of 38 hours per week or 76 hours per fortnight or any other method agreed may be worked." 11 Changes to work cycles introduced by agreement form part of the context in which cl 26.4 appears in the award. The sub-cl is headed, "Changing ordinary hours of work/rostering arrangements." It provides: "26.4.1 Changes to rostering arrangements will be designed to improve productivity, efficiency and cost effectiveness in the workplace. 26.4.2 Any proposed roster variations for each site or subsite shall be explained to the employees concerned and to the union for consideration. 26.4.3 Consultation will then occur between site management and employees, to allow agreement to be reached on the new roster for the ordinary hours of work." 12 Clause 26 must be read as a whole and in context. So read cl 26.4 provides a mechanism by which agreement can be reached on a change to the way ordinary hours are worked so that they vary from the cycles provided in cl 26.1. Clause 26.4 does not bear on changes to the actual days of the week during which work is performed under any cycle. Further it only relates to full time employees (and not to permanent part time employees or casuals). 13 Clause 26.7 is headed, "Rosters". It provides: "26.7.1 A roster setting out the ordinary hours of work shall be displayed by the employer where it can be easily seen by all affected employees. 26.7.2 The roster will show the start and finish times for each employee as well as breaks of shift; and each employees rostered days off." 14 In the context of cl 26, when read as a whole, this provision applies only to full time employees. Together with cl 26.8, which deals with 'posting' of rosters 48 hours before they come into operation, cl 26.7 requires the publication of a roster for a full time employee showing start and end times for shifts and rostered days off.
Application to Ms Bell 15 Prior to 16 June 2003, cl 26 did not apply to Ms Bell because she was not then a full time employee under the award. On 16 June 2003 she became a full time employee under the award but the nature of her duties, being a person employed specifically to relieve others, meant that the times at which she performed her ordinary hours of work were entirely dependant on replacing others, often in unforeseen circumstances. 16 It is inherent in the position occupied by Ms Bell after 16 June 2003 that changes to the times in which her ordinary hours of work would occur depended on the current needs of the hospital. In the context of a relief position, there is no need to explain a proposed roster variation or for such matters to be the subject of agreement. It is impracticable for all purposes for such a position to be the subject of a displayed roster which attempts to forecast times when relief is needed. Sometimes an employer will be able to predict need for relief, such as when other employees are on leave, but to impose a general obligation to display a roster for a relief position is impracticable. Such impracticability ought not be imputed to the maker of the award. There is evidence that a rudimentary form of roster was introduced for relieving staff such as Ms Bell on and from 16 June 2003. It could only be rudimentary given the day to day management issues which cause relief staff to be deployed. 17 In any event, from December 2003 Ms Bell has worked a regular pattern of hours. Any complaint about rostering since that time cannot be established. In the context of the award, Ms Bell's essential complaint is that she did not have a formal roster from 16 June 2003 to December 2003. For the reasons explained above it is inherent in the nature of a relief position that formal rostering cannot be expected in the practical day to day running of a hospital. However, the hospital did the best it could to assist relief staff by notifying them on Fridays where possible, of the work arrangements to apply from the following Sunday. This is a desirable practice, especially when it is known that relief staff will be needed to replace workers on long service leave, annual leave and maternity leave. 18 No breach of cl 26 has been established in respect of the period 16 June 2003 to December 2003 because the award did not intend that a roster be formally set for relief staff whose working hours may vary on short notice to meet practical exigencies. From December 2003 Ms Bell became employed on fixed hours in circumstances where no rostering was necessary for the reasons explained in Mackay v Minister for Health [2006] FCA 132. 19 Implicit in there being no obligation to set out a formal roster for relief staff is that there is no obligation to formally "post" a roster 48 hours before it comes into effect. 20 The requirements of cl 26.7 and cl 26.8 are not intended, in a practical industrial relations context, to require the large number of health care facilities bound by the award to provide a certain roster to meet all exigencies. It is impractical to mandate formal rostering in such circumstances. As counsel for Ms Bell, Mr Gill, said, the hospital can only do the best it can. I am satisfied that since 16 June 2003, the hospital has attempted to provide as much certainty as it can to relief staff by providing rudimentary rosters on a Friday prior to the Sunday on which the relief staff are expected to work. No breach of cl 26.7 has been established in the circumstances. Clause 26.8 is a facilitative provision dealing with the timing of the setting of rosters when there is an obligation to set them. 21 Mr Gill conceded that there was no evidence before the Court to show that any changes to rostering arrangements were not designed to improve productivity, efficiency and cost effectiveness as referred to in cl 26.4.1. The provisions of cl 26.4.2 and cl 26.4.3 are facilitative and flow on from cl 26.4.1. No independent breach of them has been established.
22 No breach of the award has been made out by Ms Bell. In summary:
· as conceded by her counsel, cl 26 did not apply to Ms Bell before she became a full time employee on 16 June 2003;
· from December 2003, until the filing of the application, Ms Bell was employed in a manner in which she had fixed hours and did not require a roster
· the relief position which she occupied as a full time employee between June and December 2003 was not one in which it is practicable for an employer to make predictions about variations to work arrangements, such that it could be said that the award provisions concerning rosters were intended to have literal application. It must be remembered that the award was intended to apply to the practical industrial relations circumstances which apply in the large number of health care facilities which are bound by it.
Postscript 23 When originally filed the application sought that a penalty be imposed on the respondent for breach of a certified agreement and not the award. Leave was granted for the application to be amended in Court to permit Ms Bell to raise the question whether the award had been breached. From hearing her evidence it seems that the issue which led Ms Bell to raise a complaint about rostering occurred prior to the time when cl 26 of the award applied to her. That is, when she was not a full-time employee, under the award. She was concerned about having two sick days treated as rostered days off. Her grievance in that regard appears to be a genuine one and one which has not been properly addressed. Although the Court has found no breach of the award has been committed by the respondent, in order for Ms Bell to put this issue behind her, the hospital should attempt to carefully consider the circumstances of her grievance concerning her two sick days. It should attempt to make some belated recompense for that treatment. For example, it could accord her some form of preferential treatment in relation to the taking of future leave applications in order to redress her grievance with the hospital and to assist her to achieve the appropriate morale needed to be a content worker in the hospital's workforce.
Costs 24 Counsel for the respondent, Mr Andretich sought costs pursuant to s 347(1) of the Act. I refused that application. At the time the application was filed, it raised alleged breaches of two clauses of a certified agreement. Mr Andretich conceded that, in respect of one of those clauses he could not sustain an argument that the alleged breach was not arguable given the affidavit evidence of Ms Bell which accompanied the application as originally filed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Solicitor for the Respondent: State Solicitor for Western Australia
Dates of Hearing: 20, 21 and 22 February 2006
Bell
Minister for Health