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[2012] NSWIRComm 97
Industrial Relations Commission (NSW)
2012-08-24
Staff J
Original judgment source is linked above.
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.
Consideration 26The RPAH is part of the Sydney Local Health District. As such, as an employer, it is a public sector authority with statutory powers to set and change employment conditions as it sees fit: see Chittick v Ackland (1984) 53 ALR 143 at 154; (1984) 1 FCR 254 at 264. 27Ms Borg was engaged under a contract of employment. It is beyond doubt that where, and to the extent that a statute lays down requirements or causes terms to be incorporated into a contract of employment, the Statute will be decisive. In Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427, Brennan J (with whom Mason ACJ, Wilson and Dawson JJ agreed), stated at 437: ... If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 5 21 at 527. See also Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 at [177] - [187]; New South Wales Teachers Federation and Director-General of Education and Training (No 2) [2008] NSWIRComm 218 at [58] - [78]. 28The terms of Ms Borg's employment are determined by the Health Services Act 1997, Ch 9 Pt 1 Employment of Staff in the NSW Health Service (s 115, s 116, s 116A, s 116B, s 116C, s 116D, s 116E, s 116F and s 116G) ("the HS Act"), the Health Employees' (State) Award, the Health Employees' Conditions of Employment (State) Award New South Wales Industrial Gazette, No 367, 12 November 2008, at 787 and her contract of employment. 29Section 115(1) of HS Act provides that: The NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown. 30Section 116 of the HS Act provides: 116 Employment of staff generally (1) The Government of New South Wales may employ staff under this Part: (a) to enable local health districts and statutory health corporations, and the public hospitals that they control, to exercise their functions, and (b) to enable declared affiliated health organisations to exercise their functions in relation to their recognised establishments and recognised services, and (c) to enable the Director-General to exercise his or her functions under Chapter 5A in relation to ambulance services, and (d) to enable the Director-General to exercise his or her functions under Part 1A of Chapter 10 in relation to the provision of services to public health organisations and the public hospitals that they control, and (e) to enable the Health Administration Corporation to exercise its functions under this or any other Act. (2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff. (3) The Director-General may, subject to subsection (2), exercise on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the NSW Health Service. Note. The Director-General's functions under this or any other Act may, under section 21 of the Health Administration Act 1982, be delegated to any person. (4) The Director-General may create divisions (however described) of staff in the NSW Health Service. (5) This section does not limit the purposes for which, or the manner in which, staff may be employed in the NSW Health Service. 31Section 116A of the HS Act provides a number of powers and roles to the Director-General, including the power to determine conditions of employment (including salaries, wages and remuneration for employees of the NSW Health Service, so far as they are not fixed by or under any other law (an expression found in s 16 of the Statute)). Section 116A(3), provides the authority to enter into industrial agreements with any association or organisations representing employees in the NSW Health Service. 32There can be no doubt that Ms Borg's employment conditions were governed by both statutory provisions and a contract of employment. She is clearly an employee in the normal sense of that word. 33It can also be observed that the Director-General can exercise on behalf of the New South Wales Government, the employer functions in relation to staff employed in the NSW Health Service. Section 21 of the Health Administration Act 1982 provides that the Director-General's functions under the HS Act, may be delegated to any person. 34Under s 116A(1), the Director-General may fix salaries, wages and conditions of employment of staff employed under Pt 9 insofar as they are not fixed by, or under any other law. 35The Health Employees' Conditions of Employment (State) Award relevantly provides under Clause 3(ii) Hours: (ii)The ordinary hours of work for day workers and apprentices exclusive of meal times, shall be an average of 38 hours per week in each roster cycle to be worked Monday to Friday inclusive and to commence on such days at or after 6.00 a.m. and before 10.00 a.m. Provided that apprentices may commence work on such days before 6.00 a.m. as their trade requires. Provided that the ordinary hours may be altered by mutual agreement between an employer, the Union and the majority of employees in the Department concerned. The Union's approval will not be unreasonably withheld. When such agreement is reached the ordinary hours thus agreed will not attract any penalty or overtime payment under this Award in addition to the ordinary rate of pay for salary or wages. Entitlements to allowances, including allowances set out under Part B, Monetary Rates, will not be affected. No apprentice or Adult Apprentice shall be required to perform work which would prevent the apprentice from attending classes as required by the term of his or her apprenticeship. 36Clause 4(ii) Roster of Hours provides: (ii)The ordinary hours of work for each employee shall be displayed on a roster in a place conveniently accessible to employees. Unless not reasonably practicable, the roster shall be displayed two weeks prior to the commencing date of the first working period in any roster. Provided that this provision shall not make it obligatory for the employer to display any roster of ordinary hours of work of members of the relieving staff. Provided further, that a roster may be altered at any time to enable the service of the hospital or health institution to be carried on where another employee is absent from duty on account of illness or in an emergency, but where any such alteration involves an employee working on a day which would have been his or her day off such time worked shall be paid for at overtime rates. Furthermore, where a change in roster occurs with less than 24 hours notice to the employee affected, all time worked outside that shown on the employee's roster (prior to the alteration) shall be paid for at overtime rates. 37The NSW Health Service consists of those persons who are employed under Pt 1 of Ch 9 of the Health Services Act with the employer functions to be exercised by the Director-General: see s 116(1) with some limitation as set out in s 116(3) of the HS Act. 38There is no evidence that the Director-General or his delegate reached any agreement with Ms Borg to limit her rostering arrangements contrary to the Award, or authorise any such person on his behalf to do so. In this respect, I agree with the observations of Boland J President in NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 where his Honour observed at [102]: Moreover, the notion of Directors of Nursing and Midwifery Services, Directors of Nursing or Nursing Unit Managers having a general authority to negotiate contracts or variations to contracts fixing employment conditions for individual nurses is inconsistent with the scheme of the Health Services Act. It is the Director-General who may, subject to s 116A(1), fix the salary, wages and conditions of employment of staff subject to that function, or part of it, being delegated in accordance with s 21 of the Health Administration Act. A purpose of such a scheme must be to ensure a high measure of consistency in a large and diverse public sector organisation. 39The evidence discloses that Ms Borg, consistent with the relevant provisions of the Award, has been rostered to work varying roster hours during the period of her employment. 40In my opinion, there has been no unfair or unreasonable treatment of Ms Borg in respect of the proposed change in her hours of work. Consistent with the provisions of cl 4 of the Health Employees' Conditions of Employment (State) Award, the RPAH has sought to introduce a roster change on operational grounds to improve patient care and which will assist in complying with the NEAT. 41I find that the RPAH has the right to vary Ms Borg's roster hours, subject to compliance with the Award. 42Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, I direct that Ms Borg is to commence duties with the Sydney Local Health District (Royal Prince Alfred Hospital) at 7.00am and finish at 3.30pm, with arrangements for her to attend physiotherapy appointments at 3.00pm to be made for a period of three months from the date of this decision. At the conclusion of this period, further discussions between the Royal Prince Alfred Hospital and Ms Borg should occur concerning her attendance at any ongoing physiotherapy appointments. Any attendance by Ms Borg at a physiotherapy appointment during her normal working hours can occur with Ms Borg utilising sick leave or leave without pay.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2012
Chittick
Ackland
(1984) 53 ALR 143
(1984) 1 FCR 254
(1987) 162 CLR 427
(1951) 83 CLR 5