Chittick v Ackland

DECISION 1This matter arises out of a dispute dated 12 July 2012 by HSUeast (now known as the Health Services Union NSW) ("the HSU") with respect to the starting and finishing times of work for Ms Dolly Borg, who is employed as a ward assistant at Royal Prince Alfred Hospital ("RPAH"). 2On 12 July 2012, the following question, dispute or difficulty, was notified to the Industrial Registrar pursuant to s 130 of the Industrial Relations Act 1996 ("the IR Act 1996"): Ms Dolly Borg is a member of the HSUeast and has been employed at Royal Prince Alfred Hospital for 31 years. Ms Borg has been employed for most of this time on the same roster pattern. Ms Borg has traditionally started work at 6am and finished at 2.30pm. Ms Borg was recently notified of the employer's intention to change her starting time from 6am to 7.30am. Ms Borg has sought to retain her traditional start time of 6.00am as she has significant other commitments after work. Ms Borg applied for her job originally on the same premise of starting at 6am. This was confirmed in her contract of employment in 1981 and is, we contend, an express contractual term. In addition, it is considered that Ms Borg has an implied term of contract to start at 6am, given the significant length of time she has been employed with this roster pattern. A disputes committee was convened under clause 26 of the Health Employees' Conditions of Employment (State) Award on 25 June 2012. This Disputes Committee failed to resolve on an ongoing basis, the industrial issue. 3On 17 July 2012, the parties were summoned to a compulsory conference. After full discussion, no agreement was reached. The parties were directed to continue their discussions and report to the Commission on 27 July 2012. On this day I was advised that no agreement was reached. The matter was accordingly listed for Arbitration. 4Mr W Ash appeared for the HSU and read an affidavit of Ms Borg. It was common ground that Ms Borg commenced employment at RPAH on 21 September 1981. Her evidence was that when she accepted the position of food service assistant, it was on the basis of her shift being from 6.00am to 2.00pm Monday to Friday. 5On 21 June 1995, her employment was terminated by the then Central Sydney Area Health, Royal Prince Alfred Hospital. Ms Borg filed a claim pursuant to s 246 of the Industrial Relations Act 1991 ("the IR Act 1991"), alleging unfair dismissal. The proceedings were settled upon the basis that Ms Borg would take up a permanent ongoing position within the RPAH as ward assistant, with continuity of service. 6The Health Employees' (State) Award, New South Wales Industrial Gazette, No 367, 12 November 2008 at 1089, provides that the classification of "Hospital Assistant" shall include duties traditionally associated with the former classifications of "Ward Assistant". 7On 10 May 2012, Ms Borg was advised that her shift times would be adjusted to commence at 7.30am and finish at 4.00pm, with such change to commence on 25 June 2012. 8Ms Borg's evidence was that for almost 31 years she had worked for the respondent, with her shift being from 6.00am to 2.00pm. She acknowledged there were certain temporary periods where she had worked 7.00am to 3.30pm. 9Mr N Rudd, who appeared for the Director-General, Ministry of Health, NSW Health Services and Sydney Local Health District, read an affidavit of Aaron Jones, the Nursing Unit Manager ("NUM") of the Urology, Gynaecology, Gynae-Oncology, Melanoma, Dermatology, Radiation Oncology and Palliative Care Unit at the RPAH. He is Ms Borg's Manager. 10Mr Jones stated that in or around August 2011, he was required by Ms Joanne Edwards, Director of Nursing and Midwifery at the RPAH, to address the current model of care in Ward 7 East 2, where Ms Borg worked. The result of these discussions was that the incorporation of increased staffing numbers would be used to attempt to improve patient safety and care by moving towards a patient centred approach to care delivery. 11An examination of data disclosed that the majority of discharges from the Ward occurred between the hours of 9.00am and 4.00pm Monday to Friday. A "flow-nurse" position was created in September 2011, so that one nurse could concentrate on ensuring that each patient discharged from the Ward received the correct medications, documentation, appointments and education required for safe discharge. 12In or around January or February 2012, the RPAH commenced discussing the implementation of the National Emergency Access Target ("NEAT"). This project required every hospital nationally, to process patients in Emergency Departments, within a four-hour timeframe. This meant that every patient needed to be admitted into a hospital bed within four hours of arrival to the Emergency Department of the hospital. Ward 7 East, along with all other clinical areas in the RPAH were required to improve the discharge process to enable a more efficient admission process into the Ward. The NEAT clinical redesign process identified that all opportunities to improve the discharge process were to be explored. This included the role of ward assistant. His/her role is a fundamental part of the process. A ward assistant is required to clean and prepare each bed when the patient leaves the bed space. The process takes approximately 20 minutes to complete per bed space, due to infection control policies. 13In or around February 2012, after consultation with other NUMs, Mr Jones was informed that most other wards in the RPAH had ward assistants who commenced work at either 7.00am or 7.30am Monday to Friday. 14Mr Jones formed the view that the 7.30am start time best suited the demands of Ward 7 East 2. The RPAH after hours ward assistants commence duty at 4.30pm Monday to Friday. 15Mr Jones subsequently sought advice from the Human Resources Department in respect of the proposed change of hours for Ms Borg. 16On 11 May 2012, Ms Borg was advised in writing of the proposed change to her start and finish times. 17Ms Borg declined to change her hours, contending that there was a "court order that prevented the hospital from changing anything relating to her work including the times that she worked". This was a reference to the settlement of the unfair dismissal proceedings. However, this was not a term of the settlement. After subsequent discussions between a representative of the HSU and the RPAH on or around 25 June 2012, Mr Jones offered Ms Borg a start time of 7.00am Monday to Friday. She declined the change in her hours. 18In respect of Ms Borg's contention that her contract hours were between 6.00am and 2.00pm, Mr Jones consulted RPAH's Kronos records, which commenced in or about 1998. Kronos refers to a database which records the start and finish times of employees at the RPAH. These records disclose that Ms Borg regularly worked varying hours during the course of her employment as follows: From 2 February 1998 to 30 June 2002 Ms Borg's hours were 7.00am to 3.30pm. From 1 July 2002 to 28 July 2002 Ms Borg's hours were 6.30am to 3.00pm. From 29 July 2002 to 11 July 2005 Ms Borg's hours were 7.00am to 3.30pm. From 11 July 2005 to present Ms Borg's hours have been 6.00am to 2.30pm. 19Mr Rudd also read an affidavit of Mr Albert Vasquez who was employed as the Nursing Unit Manager, Ward 7 West 2 at the RPAH between 2002 and 2005. He stated that from reviewing the Kronos records of Ms Borg's employment, Ms Borg worked a number of different shift patterns during the course of her employment, while he was the NUM. 20His evidence was that Ms Borg "did not regularly, or as a matter of course work between 6.00am and 2.00pm". 21Where possible he would try to accommodate the requests of staff to change their roster, but he would always have to arrange the staff rosters according to the operational needs of the Ward. He said he did not have any authority to approve permanent requests for change of working hours at his level, nor did he have any authority to approve any term of employment inconsistent with any award. 22At the present time, Ms Borg is recovering from a shoulder injury and requires physiotherapy three times a week. Her appointment has been made for 3.00pm on these days. 23In these circumstances, the RPAH made a compromised revised offer of start and finish times for Ms Borg, which would allow her to attend any physiotherapy appointments in the short term. 24The RPAH sought a recommendation or direction be made to the effect that Ms Borg is to commence her duties at the RPAH at 7.00am and finish at 3.30pm, with any arrangement to attend a physiotherapy appointment at 3.00pm to be made for a period of three months. At that time, further discussions with Ms Borg were to occur concerning her physiotherapy appointments, if required. Ms Borg would be required to take sick leave or leave without pay in respect of the period between 3.00pm and 3.30pm. 25This offer was rejected by Ms Borg.