Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Macquarie Generation [2009] NSWIRComm160; Re Operational Ambulance Officers (State) Award [2008] NSWIRComm 168; Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 [2008] NSWIRComm 174 and Re Crown Employees (Public Sector - Salaries 2008) Award [2008] NSWIRComm 193; The Australian Liquor, Hospitality, Miscellaneous Workers' Union, New South Wales branch and Southern Sydney Institute of TAFE [2000] NSWIRComm 1045; NSW Nurses Assoc. v NCAHS

Overview 1Mr Jeffrey Plain, a member of the Health Services Union (HSU), is employed as a full-time Security Officer by the NSW Ministry of Health in respect to the Western Sydney Local Health District (WSLHD), working primarily from Mt Druitt Hospital. He works a 12-hour shift on a relief line, which requires him to relieve other workers on the main lines during periods of absences resulting from illness or emergencies. 2The WSLHD has two relief lines - at situated at Blacktown and the other at Mt Druitt. 3Mr Plain was required, on 3 occasions totalling 5 shifts, to relieve during periods of absences. The relief was in the form of a swap from his rostered shifts resulting in the loss of penalty rates for night shift and weekends. 4Mr Plain contended that the Health Employees' Conditions of Employment (State) Award (the Award) mandated the payment of overtime on those three occasions as the absences did not arise from emergency or illness situations. 5The WSLHD also relied on the provisions of the Award contending that the requisite 24 hours notice had been provided to Mr Plain and therefore there was no award requirement to pay overtime. In addition, it warned that if the HSU's interpretation of the award provision was upheld, it would render the relief lines at the Hospital redundant. 6The parties were in agreement that, rather than elevate the dispute into a full-blown arbitration, they will embark on an alternative methodology colloquially known as the "Bluescope Model" and accept whatever recommendation issued from the Commission: see Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Macquarie Generation [2009] NSWIRComm160; Re Operational Ambulance Officers (State) Award [2008] NSWIRComm 168; Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 [2008] NSWIRComm 174 and Re Crown Employees (Public Sector - Salaries 2008) Award [2008] NSWIRComm 193. The recommendation would not have any general application or force outside of the subject matter of this dispute. The recommendation would be without prejudice to either of the parties and would not be used as a precedent. 7The parties were in agreement that they would accept whatever recommendation was handed down by the Commission. 8The matter proceeded by way of written submissions supplemented by oral submissions made on 11 June 2014. Mr James Fox appeared on behalf of the HSU with Mr Bert Coquillon. Mr Greg Hanson appeared on behalf of the NSW Ministry of Health with Ms M Johnson and Ms K Daniel from the WSLHD.

Agreed Matters 9The parties were in agreement that: (a)Mr Plain worked a 12-hour rostered shift on line 10, a relief line of work; (b)The relief line of work is a legitimate line of work that mirrors an actual line of work on the roster; (c)An employee rostered on the relief line is required to relieve absences occurring on other lines of work, subject to the appropriate award conditions; (d)The roster changes in question did not occur as a result of either emergency situations or sickness of the originally scheduled employee; and (e)Mr Plain was provided with more than 24 hours' notice of each of the said roster changes.

The Issues 10There are two issues that arise for consideration by the Commission: (1)What is the award trigger for payment of overtime rates? (2)The circumstances surrounding each occasion in question. (3)Did the swaps result from an "emergency" or "illness" situation or do the swaps fall outside the award provision?

What is the Award Trigger for payment of overtime Rates? 11Clause 9, Overtime, of the Award relevantly provides that work outside of ordinary hours of work shall be paid at the rate of time and one half for the first two hours and double time thereafter. Provided that work on a Sunday is payable at double time and work on a public holiday is payable at double time and a half: (9)(iii) All time worked by employees outside the ordinary hours in accordance with clause 3, Hours, and clause 4, Roster of Hours, shall be paid at the rate of time and one half up to 2 hours each day and thereafter at the rate of double time; provided, however, that all overtime worked on Sunday shall be paid for at the rate of double time and all overtime worked on public holidays shall be paid for at the rate of double time and one half. 12Clause 4, Roster of Hours, of the Award makes provision for alteration to any set roster at any time to ensure that the service provided by the hospital is carried on unimpeded during absences by other security staff on account of illness or emergency. 13The relieving employee will attract overtime payments if the relief work occurs on a day(s) when s/he would have been on a day off. 14In addition, if the relieving employee has received less than 24 hours' notice of the change in their roster, then all time worked outside of their own roster shall attract overtime rates. 4 (ii) The ordinary hours of work for each employee shall be displayed on a roster ... ..... 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.

The circumstances surrounding each occasion in question.

Relief Occasion (1) 15On or about 8 July 2013, the Security Operations Manager was informed that Security Officers were required to attend mandatory Fire Training for accreditation compliance purposes scheduled for 18 and 19 July 2013. 16On 10 July 2013, eight Blacktown Mt Druitt Hospital service Security Officers volunteered for the fire training. Mr Plain elected not to attend. 17A security officer on the relief line at the Blacktown facility was approached to substitute for another security officer from Blacktown attending the training. He was not able to substitute. 18Mr Plain was originally rostered to work night shift on Monday 15 and Tuesday 16 July 2013 at Mt Druitt. As a result of the short notice provided for the training, he was asked to swap to the day shift on Thursday 18 and Friday 19 July 2013. He received in excess of 24 hours' notice of the alteration in the shifts.

Relief Occasion (2) 19Another security officer submitted a short notice request for annual leave for the period 31 July 2013 to 10 August 2013. The request was received on 17 July and approved on 22 July 2013. 20Mr Plain was originally rostered to work night shift on Tuesday 30 July 2013. 21As a result of the unscheduled leave granted to his fellow employee, Mr Plain was swapped to the night shift on Wednesday, 31 July 2013. He received in excess of 24 hours' notice of the alteration in the shift.

Relief Occasion (3) 22Also as a result of that unscheduled leave, Mr Plain was required to swap to the day shift on Monday 5 and Tuesday 6 August 2013. He was originally rostered to work day shift on Saturday 3 and Sunday 4 August 2013.

Did the swaps result from an "emergency" or "illness" situation or do the swaps fall outside the award provision? 23The HSU submitted that Mr Plain was disadvantaged by the loss of penalty rates for night shifts and weekends he would have received had he worked the shifts he was offered in the original roster. The HSU contended that the substituted shifts should have attracted overtime payments to compensate Mr Plain for the disruption to his work/life balance as he had been required to work on his rostered days off. 24The HSU also submitted that the payment of overtime rates in the circumstances described above, on its interpretation, was mandated by Clause 4 (iii) of the Award. 25The HSU relied on the definition of "emergency" contained in the Oxford Dictionary - "a serious, unexpected, and often dangerous situation requiring immediate action". It also relied on the decision of the Commission, as presently constituted, in The Australian Liquor, Hospitality, Miscellaneous Workers' Union, New South Wales branch and Southern Sydney Institute of TAFE [2000] NSWIRComm 1045 where "emergency" was defined as "... one where an absence due to sickness occurs, and contingency plans to fill such sudden vacancies fail due to some unforseen circumstance". The HSU acknowledged that the award in question did not include an exception for illness, it was substantively similar on the question of emergency variation and did include an exception for "mutually agreed" variations. 26The HSU submitted that the reasons provided in the matter currently before the Commission do not constitute emergency situations, particularly in the absence of any attempt to exhaust contingencies. 27The HSU pointed out that the Respondent had not provided any evidence as to when it became aware of the bringing forward of the training in on 15 and 16 July 2013. There was also no evidence from the Respondent that the need to bring the training forward could not have been foreshadowed given the need to complete the training in order to have the reports ready for BMDH accreditation. 28Mr Plain provided evidence that he was offered the opportunity to undertake his training at a later stage having been advised that there was no urgency to comply. The HSU concluded that there must have been an error in management planning for the situation on 15 and 16 July 2013 to occur. 29The HSU contended that the lack of any effort by management to enact contingencies to take care of situations of leave at short notice had resulted in the change of roster and loss of penalties by Mr Plain on 30 July, 3 and 4 August 2013. While the Union did not deny that it was important and there was a need to accommodate such absences, the Respondent was obliged to have contingencies in that place that would not disadvantage other employees as a result of inconvenience caused by last minute change of rosters and loss of penalties. If such inconvenience cannot be avoided then, pursuant to the award, the inconvenienced employee is entitled to the payment of overtime. 30The HSU questioned how Mr Plain's original shifts on the dates in question were filled and whether other employees had been similarly disadvantaged? 31The HSU argued that the occasions described above cannot be considered to be "outside of the ordinary running of the business" - in other words, emergency situations, given that they occurred within a short period of time. The HSU argued that the occasions described above occurred in an ordinary state of affairs and, in the absence of any planning to cover sudden absences, someone from the relief line was used in order to avoid the payment of overtime to a full-time employee. 32The HSU submitted that the ordinary plain English interpretation of Clause 4 should be as follows: (a) A roster is the proper representation of ordinary hours of work for an employee across a given time period; (b) That roster can be altered in order to guarantee service delivery, without the payment of overtime, in only two circumstances - for an emergency or illness; UNLESS (i) The roster is altered with less than 24 hours' notice; or (ii) The roster is altered requiring an employee to perform work on their "day off". 33The HSU pointed out that the parties were in agreement that the situations pertaining to this case did not result from illness or emergency situations and all involved the provision of in excess of 24 hours' notice. The only relevant matter was the "day off" alteration. 34The HSU pointed out that, as Clause 9, Overtime, required overtime payments to be made for all time worked outside of ordinary hours, then two scenarios may apply to Mr Plain's circumstances. Firstly, as his scheduled roster was not altered on account of illness or emergency situation, it therefore fell outside of the award in which case overtime would apply. Alternatively, even if the day off swap is interpreted as an alteration requiring him to perform work on a day off, then overtime would still apply. 35The HSU pointed out that there had been an offer by the Respondent to pay, on a "without prejudice" basis and without admission of liability, the penalty rates that would have been applicable had the alterations to Mr Plain's roster not been made on occasions (1) and (3) above. That offer was withdrawn owing to the insistence of the Union to pursue its members' rights in the Commission. The HSU submitted that the offer was an acknowledgement by the Respondent that Mr Plain had suffered a financial disadvantage as a result of its actions. 36The HSU disagreed with the assertion by the Respondent that relief lines would be made redundant if the Union's interpretation was accepted pointing out that there was a proper time and place for relief line rostering within the bounds of the award. In any event, the HSU was willing to participate in genuine consultation over the proper application of the award provisions in relation to relief line employees. 37The WSLHD, in respect of its Blacktown Mt Druitt facility, agreed that the roster changes in question occurred, with in excess of 24 hours' notice, as a result of the operational needs of the facility. 38The WSLHD pointed out that the dispute between the parties therefore related to the interpretation of the relevant provisions of the award in relation to the circumstances surrounding the roster variations on the said occasions. 39The WSLHD relied on the decision in NSW Nurses Assoc. v NCAHS [2010] NSWIRComm 1057 in which Ritchie C stated at [41]: State Awards, like any legal documents, must primarily be interpreted by looking at what is actually said. In Bryce v Apperley (1998) 82 IR 448 the Full Bench of the Commission (Hungerford, Marks and Schmidt JJ) expressed the position (at p. 452) thus: "... In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning..." 40The WSLHD noted that when the Full Bench view in Bryce is applied to the current circumstances, it is manifestly clear that the trigger for overtime payment being made is a situation where the roster change involved someone working on what would have been a day off as a result of the occurrence of sickness or an emergency situation. The three occasions in dispute do not involve sickness or emergency situations. 41The WSLHD noted that the HSU had not produced any evidence of any similar circumstances where overtime has been paid. The WSLHD expressed concern that if the union view on the interpretation of the relevant subclause prevails, then the relief lines would be made redundant as their purpose is to cover any and all absences irrespective of the reason. 42The WSLHD asked that the Commission ignore any offers made by it in an attempt to settle the claim as the offers had been made in the spirit of conciliation.

CONSIDERATION 43Applying the logic expressed in Bryce, (i)Overtime payments are payable where an employee has exceeded an average of 38 hours per week in each roster cycle. The parties were agreed that Mr Plain did not exceed 38 hours per week on any of the three occasions in question. He had not been asked to work additional shifts. His rostered shifts were merely substituted with the vacated shifts. (ii)The change in roster did not result from absence of another employee owing to illness nor did it result from an emergency situation. Both of those instances would have attracted overtime payments for the employee substituting for the absent employee. The parties were agreed that neither of those situations related to the present matter. (iii)If less than 24 hours' notice was given to the employee regarding the change in roster, then overtime payments would have been payable. The parties were agreed that neither of those situations related to the present matter. (iv)An employee is entitled to overtime rates where the alteration to their roster involves that employee working on a day which would have been their day off. Mr Plain was not swapped on a day off. 44Mr Plain was engaged on a relief line and therefore it is an expectation of all those working on that line that they would be required to relieve during absences occurring on the main lines of work. 45The parties advised that there has been an "understanding" between them, over the last five years, that if a vacancy arises in a shift as a result of an absence by a security officer, then someone will be nominated to fill the vacancy sourced from the following and in that order - firstly from the relief line at the facility in question, then from the relief line at the other facility, then from the part-time employees, then from the casual pool, then from the full-time employees, with contractors being the last resort. That practice has not been formalised by the parties and there are on-going discussions between the parties in relation to it. 46If Mr Plain was required to work a night shift in substitution for his rostered day shift, then he would be paid the night shift penalty. In Mr Plain's case, the reverse occurred. He was required to work a day shift on the first occasion in lieu of his rostered night shift, his night shift was substituted to another night shift on the second occasion, and his weekend day shifts were swapped to weekday day shifts on the third occasion. He therefore missed out on the nights shift allowance on the first occasion and his weekend allowances on the third occasion. In other words, in the aggregate, the situation could work both ways - on some occasions the security guard could pick up penalty payments and on other occasions, would lose penalty payments. 47This type of situation has not arisen previously. The relief persons change every month as they are rotated in order to make the process fairer. In, other words, once Mr Plain completed that roster period as the relief, he would drop down to the end of the relief line and would not expect to reach the top of the list for another ten months. 48If the substitutions in question had occurred as a result of an agreement reached between two employees, with the consent of the Respondent, owing to personal commitments by one or both employees preventing them from working their rostered shifts, the Respondent would not incur any additional expense. 49Having considered the circumstances surrounding each of the occasions in question, the matters agreed between the parties, the submissions as well as the authorities cited in coming to a recommendation in this matter, the Commission determines that what has occurred is a feature of the relief line and therefore declines to intervene in the payments made by the WSLHD to Mr Plain. 50Matter IRC 94 of 2014 is hereby concluded.

COMMISSIONER 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: 09 September 2014