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.