Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District

SWIRComm 29; State Wage Case 2015 [2015] NSWIRComm 31; Steel Works Employees and Engine Drivers, & Co (Australian Iron and Steel Limited - Port Kembla) Award [1956] AR 855; Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37; Sydney Water Corporation in Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd [2002] NSWIRComm 208; Sydney Water Corporation v Australian Services Union (NSW & ACT Branch) (2005) 146 IR 388. Texts Cited: Uniform Evidence Law , 7th edition, Law Book Co, 2006 Category: Principal judgment Parties: Construction, Forestry, Mining and Energy Union (New South Wales Branch) - Notifier

South Western Sydney Local Health District - Respondent Representation: Ms L Charlson with Mr P Connell for the Notifier

P Ginters of Counsel with Ms A Paul for the Respondent File Number(s): 2015/377318 (formerly IRC 938 of 2015)

Judgment

1. This matter concerns a dispute notified to the Commission pursuant to s 130 of the Industrial Relations Act 1996 (the Act).
2. Shortly stated, the nature of the dispute concerns the refusal of the Construction, Forestry, Mining and Energy Union (New South Wales Branch) (the Union) to accept a decision taken by the South Western Sydney Local Health District (the LHD and Respondent) that Mr Cameron Zammit and Mr Craig Zammit (the Zammits) cease working "flexible working hours" from 6 am to 2.30 pm, Monday to Friday, and commence working the Respondent's standard maintenance staff hours of 7 am to 3.30 pm inclusive. Mr Craig Zammit is a leading hand and supervises painting work. The Zammits provide the core maintenance painting requirements of the Respondent primarily at Liverpool Hospital. On occasions, contract painters are engaged.
3. The Zammits are employed pursuant to the Public Health Service Employees Skilled Trades (State) Award (the Award). Clause 4 of the Award provides that ordinary hours of work for day workers are 8 hours per day to be worked between 6 am and 6 pm, Monday to Friday.
4. The Zammits have been working from 6 am to 2.30 pm, Monday to Friday for approximately 8 years. That arrangement allows them to collect their primary school children for whom they have carer's responsibilities at approximately 3 pm each afternoon.
5. In correspondence dated 4 April 2014, the District Director of Engineering, Mr Michael Feeney advised the Zammits that their application for a continuation of flexible work hours had been rejected. They were given four weeks' notice that on and from 5 May 2014, they would revert to working the standard maintenance hours of 7 am to 3.30 pm, Monday to Friday inclusive.
6. The Respondent's policy concerning flexible working arrangements states "approval will be for a maximum of 12 months".
7. Following representations made by the Union, the LHD approved an extension to the Zammits' flexible work hours arrangements. In an email to the Union dated 16 May 2014, Ms Jacqui Clark, an employee engaged in Human Resources stated: "…approval has been given for a further 12 month period however, the staff will be advised that they need to utilise this time to make alternate arrangements as a further extension will not be approved."
8. On 20 May 2014, Ms Jennifer Arnold, then Deputy Director Human Resources wrote to the Zammits to formally advise them that an extension to their "flexible work arrangement" beyond 31 May 2015 would not be approved and their hours of work would revert to 7 am to 3.30 pm, Monday to Friday, consistent with the core hours worked by maintenance employees. Ms Arnold also stated: Flexible work practices are granted to allow staff short periods of time to attend to medical or other pressing matters. In the majority of circumstances flexible work arrangements have been approved to allow staff time to make alternate arrangements for matters that are not work related. All flexible work arrangements are to be reviewed and approved by the Chief Executive annually.

Relevant Policies

1. Policies and procedures relevant to the determination of this dispute matter include:

• The NSW Health Information Sheet Considering Flexible Work Requests (the Health Information Sheet); and
• Flexible Work Practices, Policy Directive (SSW-PD2007_49) (the Policy Directive).

Remedy Sought

1. During proceedings on 20 August 2015 and prior to arbitration, the Union advised the Commission: We'd be seeking orders from the Commission that the current hours be continued I think for the period of time that Mr Craig and Mr Cameron Zammit have children at primary school.
2. In email correspondence dated 2 November 2015, the Union clarified the relief sought and advised that "appropriate wording for the orders" sought "may be": That, for the period that Mr Craig Zammit has one or more children attending primary school, the Respondent will permit Mr Craig Zammit to continue to work his ordinary hours from 6am until 2:30pm each weekday in order to enable Mr Craig Zammit to pick up his child (or children) from school and care for his child (or children) in the afternoon. That, for the period that Mr Cameron Zammit has one or more children attending primary school, the Respondent will permit Mr Cameron Zammit to continue to work his ordinary hours from 6am until 2:30pm each weekday in order to enable Mr Cameron Zammit to pick up his child (or children) from school and care for his child (or children) in the afternoon.
3. Put alternatively, the terms of the order sought by the Union would require the Respondent to maintain the Zammits' current flexible working arrangement until the completion of the 2018 and 2019 school years.

Question for determination by the Commission?

1. The primary position of the Respondent in final submissions was that it had the right to manage and regulate its business arrangements, including the working hours of the Zammits, unless those rights are exercised unjustly or unreasonably. Against that backdrop, the Respondent argued the nature of the proceedings call for the determination of the question: Does the Respondent's decision [following a transition period] to align the working hours of Craig and Cameron Zammit with those of the other trades staff in the Liverpool Hospital Engineering Services Department impose an "industrial injustice"?
2. For its part, the Union disagreed with the Respondent's characterisation of the question to be determined by the Commission. It considered the Commission, having regard to the nature of the proceedings, should determine the following question: As a matter of industrial justice, is it justifiable for the Respondent to refuse to permit Craig and Cameron Zammit to continue to start and finish work one hour earlier that other members of the Engineering Services Department at Liverpool Hospital so that Craig and Cameron Zammit are able to collect their children from primary school and care for their children each weekday afternoon.
3. Both questions are similar and shortly stated, require a "Yes" or "No" answer. Having considered the evidence, I have decided that the Respondent's assessment of what the Commission is required to determine in this matter best reflects the question for determination.

Union

1. A dominant theme of the Union's evidence was that the Zammits were required to work flexible working hours to meet their family responsibilities. That work arrangement provided benefits to the Respondent and did not impose any barrier to productivity or risk to safety. Mr Craig Zammit is a leading hand painter and as such he and Mr Cameron Zammit perform the majority of their work with minimal additional supervision. There was no operational imperative for the Zammits to work from 7 am to 3.30 pm. Moreover, the relevant policies of the Respondent support flexible work arrangements to accommodate family responsibilities.

Michelle Zammit

1. Ms Michelle Zammit is married to Mr Cameron Zammit. She was not required for cross-examination.
2. Ms Zammit currently works full-time as a Service Coordinator. Until recently, Ms Zammit was allowed to commence work at 9 am so as to allow her to drop off her primary aged children at school, rather than her normal commencement time of 8 am. More recently, Ms Zammit had varied her work hours to 8.30 am to 4.30 pm as her children are now old enough to be dropped off at the school gate at or around 8.10 am.
3. Ms Zammit considered it was "disgraceful" that the Respondent had sought to change her husband's flexible hours of work. She had previously worked in various administrative roles for the Respondent where she had observed a number of women were afforded worked flexible hours to accommodate family responsibilities.
4. In support of the proposition her husband's flexible working hours arrangement afforded should continue, Ms Zammit deposed: Cameron and I have a mortgage on our house, and we make fortnightly repayments towards this. We also upkeep two cars, which we need in order to get to work. We pay school fees, and for private health insurance. We also have the usual household expenses such as utility bills. We are making additional contributions into our superannuation funds. We have additional expenses for the children, including swimming lessons and sports fees. Our family budget is tight. If we had to pay for childcare in addition to our current expenses, we would need to miss out on something else such as swimming lessons. Cameron and I have recently enquired into the availability of out-of-school hours childcare. The children's school finishes at 3:05pm. There is a bus which collects children from schools including Mary Immaculate Primary School. Mary Immaculate Primary School is the second last school on the bus pick-up route, and children at Mary Immaculate Primary School are picked up at approximately 3:20 pm and arrive at the childcare centre at approximately 3:50 pm. If Cameron finished work at 3:30 pm, it would take him approximately 20 minutes to drive to the childcare centre at Edensor Park. When the children arrived at the childcare centre, he would be waiting for them. Instead of childcare, we would be paying for an exorbitant bus trip. I have spoken to my children and asked how they would feel about going to childcare. They have told me that they don't want to go. I think it would be too long a day for them, given that I drop them off at 8:10 am, which is when the school gates open.

Belinda Zammit

1. Ms Belinda Zammit is married to Mr Craig Zammit. She was not required for cross-examination.
2. Ms Zammit works for a pharmaceutical products company in a customer service role. Her normal hours of work are 8 am to 5 pm. However, to enable her to drop off her children when their school opens at 8.20 am, her employer has agreed that she can commence work at 9 am.
3. The current flexible work arrangement afforded to her husband Craig, "has been working well" and it enables Craig and herself "to share the care of our children".
4. In support of the proposition that the flexible working hours arrangement should continue, Ms Zammit deposed: I do not understand why the Hospital would have a problem with it. Craig and I do not have any family who could assist with picking up our children from school and caring for them in the afternoon. We pay for Catholic school education for our children which is already expensive, and our family budget is tight. If we had to pay for childcare in addition to school fees this might push us over the edge financially. Also, I think that the children spend enough time at school and that they shouldn't have to go to after school care. The current arrangement whereby I look after the children before school and Craig looks after the children after school is in place for the sake of the children. It doesn't create any hardship for our employers. I think it should be able to continue.

Paul Connell

1. Mr Connell has been employed as a State Organiser with the Union since November 2013.
2. On 13 December 2013, Mr Connell met with the Zammits who at that time were concerned that their applications for the continuation of their flexible working hours arrangement "might be knocked back". In or around early April 2014, the Zammits advised him that their applications had been rejected in correspondence dated 4 April 2014 from Mr Feeney. On or about 11 April 2014, Mr Connell was told Mr Loy had made the decision on the grounds that: 1. other staff had been denied flexible hours and it would be unfair to approve the Zammits' application; and 2. there was a lack of supervision and in that particular regard, the Zammits had been seen leaving work early.
3. Subsequent meetings between Mr Connell and the Respondent's management in May 2014 failed to change the Respondent's position. Mr Connell confirmed the Zammits had received correspondence (referred to above) from Ms Arnold dated 20 May 2014, advising that a 12 month extension had been approved until 31 May 2015 and Mr Loy, dated 4 July 2014, which withdrew the statement that any extension beyond 31 May 2015 would not be approved.
4. Mr Connell referred to subsequent email and telephone representations made to the Respondent on behalf of the Zammits. He also referred to allegations of bullying and harassment (subject to separate proceedings before Tabbaa C).
5. Mr Connell noted the Policy Directive provides for flexible working hours in terms of "changing finishing and starting times to satisfy both employer and employee needs". Mr Connell referred to the Information Sheet which stated requests should not be unreasonably denied.
6. Mr Connell noted that in conversations with the Zammits, they had stressed the importance of being able to pick their children up from school and looking after them during the afternoon.
7. In a second statement filed on 6 November 2015, Mr Connell confirmed he had been told that Mr Robert Nelson, a carpenter, that he had only been required to meet with Mr Stephen Sherer, Acting Building Engineer, for the past three weeks. In addition, he contended the following in relation to Mr Sherer's statement:

• he had no difficulty contacting Mr Craig Zammit on his mobile telephone within the Hospital;

Craig Zammit

1. Mr Craig Zammit is a leading hand painter and has worked with his brother Cameron at Liverpool Hospital since approximately 2000.
2. The majority of Mr Zammit's work at the Hospital involves preparation and painting of walls, ceilings, doors of various public areas and, wards and offices. Some exterior painting is also undertaken. Mr Zammit stated the work he and his brother perform "is not emergency response work" such as that undertaken by the Hospital carpenter.
3. Mr Zammit is responsible for ordering materials and prioritising painting work. The Respondent operates a maintenance software program known as BEIMS. Work requisitions are entered into BEIMS and a work allocation order is subsequently generated and "put in the pigeonholes of the appropriate tradesperson". Upon receiving a BEIMS work order, Mr Zammit proceeds to prioritise that work.
4. Mr Zammit's immediate supervisor is Mr Sherer. On occasions, he received work orders directly from Mr Sherer. He carries a hospital provided mobile phone when at work so that he can maintain communications with his supervisor and other members of the engineering department as necessary.
5. Mr Zammit confirmed details of his wife Belinda's employment circumstances and the fact that she worked flexible hours to enable her to drop their children off at school. Various correspondence confirming school start and finish times together with the fact that Mr Zammit picks his children up from school each afternoon were attached to his statement.
6. In support of the proposition that the current flexible work arrangements should continue, Mr Zammit stated: Our family budget is…very tight. Any additional costs, such as paid child care, would impose a very heavy burden on our family.
7. Mr Zammit deposed he earned approximately $51,000 per annum. Part of his income was salary packaged in accordance with public health sector Fringe Benefits Tax arrangements. His wife earned $62,000. He subsequently set out the following expenses:

• Catholic primary school fees - $1,000 for one child;
• Catholic high school fees - $6,000 for two children;
• private health insurance - $200 per month;
• mortgage repayments - $1,800 per month;
• home insurance - $110 per month; and

Wayne Rawson

1. Mr Wayne Rawson was the Building Engineer for the Respondent until his retirement in December 2013.
2. Mr Rawson stated he had never heard any complaints concerning the Zammits' work. He had commenced work at 6 am himself and considered the flexible work arrangement benefitted the Respondent: …it allowed tradespeople to access areas to effect repairs prior to patients and visitors being admitted to those areas. Some areas of the Hospital did not open until 7.30 or 8 am and tradesmen who started work at 6 am could affect those repairs.
3. Mr Rawson observed that at the time of his retirement in December 2013, the only staff working from 6 am to 2.30 pm were the Zammits and the head gardener, as "the others had all left or retired".
4. Mr Rawson considered poor telephone reception within the Respondent was confined to nuclear medicine and radiology, areas which contain lead lined walls. He never had any problems contacting Mr Craig Zammit or other leading hands. In any event, messages could be left on voicemail if necessary. Mr Rawson did not consider the Zammits' current working hours disadvantaged the Respondent. Rather, it is advantageous as it allowed painting work to be undertaken prior to normal daily occupation by staff and patients.
5. In a second statement filed on 6 November 2015, Mr Rawson stated permission had been granted some time ago for Mr Rudolfo Galaroza, a handyman, to work from 6 am to 2.30 am.
6. In cross-examination, Mr Rawson confirmed that he retired from the position of Building Engineer in December 2013 and had not had any involvement in the operations of the Hospital since that date.
7. Mr Rawson also confirmed that he had no knowledge or understanding concerning the way management now wished to operate the Hospital. In that regard, he stated his reference in his first statement that the current working hours arrangements of the Zammits did not cause any disadvantage to the employer should be read in the context of the period he worked at the Hospital up until December 2013.
8. Mr Rawson was unaware whether there was an increased focus by the current management to improve supervision of trade staff and the coordination of their work activities.

Robert Nelson

1. Mr Robert Nelson is a leading hand carpenter. He, together with other engineering services staff currently work from 7 am to 3.30 pm.
2. It was Mr Nelson's evidence that in his opinion, the hours worked by the Zammits "do not create any problems in relation to the performance of their work as part of the engineering services team". Mr Nelson considered the arrangement was beneficial to the Respondent as their earlier start enabled the Zammits to work in areas prior to staff commencing work. Moreover, the Respondent's waiting areas and other public areas were "generally fairly empty at 6 am". He further contended "a lot of nurses in the Hospital start work at 7 am or later". Theatres could be painted more efficiently on the current work hours as operations did not generally commence until 8.30 am.
3. Mr Nelson stated that given the Zammits did not perform "on-call' emergency work and painting work was normally pre-planned, their current work arrangements was no impediment to their work output.
4. It was Mr Nelson's evidence that leading hands generally supervised their own work with limited contact with Mr Sherer. He has never met regularly with Mr Sherer to discuss work performed or work required to be performed. If there was an urgent job, Mr Sherer would visit the workshop or make contact by telephone.
5. In a second statement filed on 6 November 2015, Mr Nelson referred to the statement of Mr Fenech and noted it was his recollection Messrs Galaroza, Follers and Potter had previously started and finished work earlier than other employees but could not recall the precise hours they had worked.
6. In relation to Mr Sherer's statement, Mr Nelson contended there was "extremely minimal additional supervision of our work by Stephen Sherer" as leading hands supervise their own work and the work of others. He further contended Mr Feeney had asked Mr Sherer to "meet the boys" each day. Mr Nelson also explained the processes involved in repairing gyprock and subsequent painting.
7. In relation to the statement of Mr Wenden, Mr Nelson stated he too was unaware of a "Yellow Code" disaster response. He also considered that he both prioritised and organised "my own work".
8. In relation to the statement of Mr Cook, Mr Nelson stated that on occasions, it was not possible to schedule work at times that would not inconvenience patients and others.

Cameron Zammit

1. Mr Cameron Zammit is a painter and has worked with the Respondent since 2000. Much of Mr Zammit's evidence substantially mirrors that of his wife, Ms Michelle Zammit and his brother, Mr Craig Zammit. Their children attend Catholic primary schools.
2. Mr Zammit earns approximately $40,000 per annum plus reportable fringe benefits of almost $17,000. His wife Michelle earns approximately $66,000 per annum.
3. Mr Zammit deposed, "Our family budget is tight, and it would be very difficult for Michelle and me to pay for child care fees in addition to school fees and other expenses, in addition to the following expenses:

• private health insurance - $220 per month;
• school fees for two children - $3,132 per year and paid weekly;
• additional superannuation payments - $30 per week;
• car insurance for two cars, mortgage payments and groceries.

1. In the event that he was required to work until 3.30 pm, it was Mr Zammit's evidence that he would be able to pick his children up from the child care centre at 3.45 pm when, "the children would likely only just gotten off the bus and arrived at the childcare centre'.
2. Mr Zammit did not consider his flexible working hours arrangement posed any difficulty in relation to the performance of his work. He also referred to a statement by Mr Jon Gowdy, the Respondent's Engineering Manager from approximately 2011 to 2013, to the effect that in his opinion, the Zammits' working hours had no impact on productivity or safety and he saw no reason to alter that arrangement.
3. The balance of Mr Zammit's statement referred to the history related to the application by he and his brother for the flexible working hours arrangement to continue.
4. Mr Zammit also filed a second statement on 6 November 2015 in response to the statement of Mr Sherer, Ms Arnold, Mr Wenden and Mr Fenech. The matters raised in that statement is similar to other evidence relied upon by the Union in support of the Zammits' case.
5. In cross-examination, Mr Zammit confirmed that since at least 2013, he had been aware of the Hospital's desire to realign his working hours to those of other engineering trade staff. He also confirmed that in May 2014, he became aware that the Hospital's position at that time concerning his flexible working hours arrangement was it would only continue for a further 12 months. Mr Zammit agreed that following representations made by the Union, a new application was to be made in May 2015 for a continuation of the arrangement.

Jennifer Arnold

1. At the time of deposing her statement, Ms Arnold was the Deputy Director Human Resources. Ms Arnold's evidence was that she first met with the Zammits on 20 May 2015.
2. Ms Arnold recalled that during the course of 2014, she attended a short meeting with the Zammits, Mr Connell and Mr Peter Cook. She denied stating the words, "Your children are still very small. I think that your current arrangement might stop when they are in high school" as alleged by Mr Cameron Zammit in his statement.
3. It was Ms Arnold's evidence that she did not know the ages of the Zammit children and could not recall whether their age had been mentioned during the course of any conversation with her. It was her recollection that she informed the Zammits that they were required to submit an application for flexible hours to be determined by the Chief Executive or her delegate.
4. In cross-examination, Ms Arnold confirmed she was aware of the Zammits' current flexible working hours and was also aware they had been required to reapply for a continuation of those arrangements on a number of occasions. She was unaware of the circumstances that may have existed prior to 2014.
5. Ms Arnold stated that in or around May 2014, she suggested to the Zammits that they reapply for a continuation of their flexible working hours arrangements. She also confirmed that in communicating her response to the Zammits she had considered relevant Hospital policies. Ms Arnold was unaware of any written representations the Union had made during May 2014 on behalf of the Zammits.
6. It was Ms Arnold's evidence that the normal practice of the Respondent was not to provide reasons with respect to applications seeking consideration of a flexible working arrangement and the like. She was unaware whether that arrangement had imposed any hardship on the various applicants.
7. Ms Arnold was aware that the Hospital's website contained a statement to the effect that it does its best to provide a work/life balance to employees through flexibility, but was unaware that the website suggested that flexibility may be achieved through job sharing, part-time work or flexible hours.
8. Ms Arnold stated she was aware of the Premier's Department and Health Department Policy statements concerning flexible working arrangements.

Peter Cook

1. Mr Cook is the Respondent's Manager, Shared and Corporate Services. He is responsible for a broad range of Hospital functions including engineering services.
2. Mr Cook stated the Hospital was experiencing performance issues and was required to manage resources as efficiently, effectively and responsibly as possible in order to improve patient flow and access to care for those who required it. In the 2014/15 financial year the Hospital sustained a financial deficit of $8.2 million. The Hospital is required to operate within its budget and accordingly, much attention was now directed towards improving performance across the entire facility, including engineering services. The Hospital had sought to make such efficiencies and improvements without impeding patient access.
3. Shortly stated, the Hospital seeks to ensure that it operates at all times in an efficient and coordinated manner. To meet such objectives, a "Whole of Hospital" approach to improving performance has been implemented across clinical and support services.
4. It was Mr Cook's evidence that the Engineering Services Department was required to be responsive to the Hospital's day-to-day needs. Mr Cook explained that engineering trade staff were responsible for the maintenance of critical plant and various wards, clinics and emergency departments that accept and treat patients.
5. Insofar as the Engineering Services Department was concerned, the "Whole of Hospital" approach required engineering services staff to perform their duties in a timely and efficient manner. Mr Cook contended this change required greater coordination of trades work.
6. Mr Cook stated that it was important, for example, that painting staff were on hand to dovetail their work and commence painting repairs once carpenters and handymen had completed their work. To achieve this objective and improve operational efficiency, Mr Cook contended that having all engineering staff work the same hours was required.
7. The majority of engineering staff commence work at 7 am and finish at 3.30 pm, with the exception of two staff who operate the Central Energy Station and the Zammits.
8. Mr Cook contended that difficulties and inefficiencies can arise when the Hospital's painters commence work at 6 am and an issue requiring their early attention was reported to the engineering department at or after 7 am. For example, in such circumstances, the painters would be required to pack up from the location where they were working and move to the new work location. This practice would result in a loss of time and effort.

Ross Wenden

1. Mr Wenden was appointed the Group Engineering Manager for the Respondent on 5 November 2012. He reports to Mr Feeney, the District Engineer. Various engineers, including the Acting Group Building Engineer, who supervisors the painting and carpentry tradespersons, report to him.
2. Mr Wenden is responsible for the maintenance and repairs to three Hospitals within the Local Health District. He has 37 years' experience in engineering within the New South Wales Public Health System and has worked at nine different Hospitals in a range of positions including Maintenance, Project Management and Engineering Management.
3. The Respondent has recently experienced rapid patient growth. Accordingly, the work undertaken by the Engineering Department has a direct effect on delivery of patient care services. In that regard, Mr Wenden stated proper management of maintenance and repair work helped to minimise Hospital block, a situation where beds become unavailable.
4. Mr Wenden stated that a key goal of the Respondent was to deliver an effective and efficient service by maximising the various resources available to it. He contended the Respondent was required to provide a rapid response team of skilled trades persons to meet the operational demands of the Hospital so as to ensure continuity of patient services.
5. Mr Wenden stated that he and Mr Feeney had implemented a number of work practice changes since 2013. Broadly stated, these changes included the requirement for engineering staff to complete their work requisitions in a timely fashion and provide a record of the tasks carried out. Other changes introduced included improved supervision, greater attention to the coordination of trades and maintenance services, prioritisation of work and improved communication between Hospital executives and Engineering Department management with the objective of reducing costs.
6. More recently, the General Manager of the Hospital had directed the Engineering Department to minimise the use of contractors for trades work and utilise in-house staff.
7. Mr Wenden stated that since the end of 2012, there had been a reallocation of positions so that there were now more trades and handymen available to work between the hours of 7 am and 3.30 pm. Engineering staff had also been given specific roles in certain emergency procedures, such as code yellow emergencies which may involve a chemical spill, persons being trapped, flooding, power failure, storm damage and the like.

David Fenech

1. Mr Fenech has worked in the Public Health system since 1999 and in August 2012, was appointed Director Human Resources, Liverpool Hospital. Prior to working for the Respondent, he worked in Human Resources roles within the then Northern Sydney and Central Coast Area Health Service and the Northern Sydney Local Health District.
2. Mr Fenech deposed that his knowledge of the Zammits' case was substantially drawn from Hospital records.
3. Mr Fenech set out the history concerning the various requests made by the Zammit to change their working hours commencing in February 2007, when Craig Zammit sought to work from 6.15 am to 2.45 pm to collect his daughter from school and Cameron Zammit in August 2007, when he sought to work from 6 am to 2.30 pm for related reasons. Mr Fenech subsequently set out the history of applications made by the Zammits during the course of 2013 and 2015. (I do not propose to repeat the details of those applications here). Mr Fenech also set out in some detail the involvement of the Union of behalf of these Zammits.
4. With reference to Mr Connell's statement, Mr Fenech said the Policy Directive, September 2007 and the New South Wales Public Employment Office document, Flexible Work Practices Policy and Guidelines, October 1995 were "general documents". Their purpose was to convey "aims for the public sector, and their themes had been considered in the development of policies for NSW health".
5. Mr Fenech referred to the Information Sheet concerning flexible work requests stated that "maintaining appropriate levels of service delivery" together with lists of dot points for consideration, are to be taken into account in the assessment of any application for a change to working arrangements.
6. Mr Fenech referred to the Policy Directive which states; Flexible working hours involves changing starting and finishing times to satisfy both the employee and employer needs. Delegation to approve flexible working hours rests with them DCO [Director Clinical Operations, which under current delegations sits with the Director of Operations]. Approval where granted will be for a maximum of 12 months, with such done on an annual basis. Extensions will only be considered with evidence of benefits to both the employer employee can be demonstrated.
7. Mr Fenech stated that consistent with the Policy Directive, Mr Loy had considered the applications the Zammits made in May 2015 and subsequently rejected them.

Stephen Sherer

1. Mr Sherer was appointed Acting Building Engineer in September 2014 and reports to Mr Wenden. He has worked in the building industry in a range of positions for almost 40 years. His current position requires him to supervise the work of plumbers, painters, carpenters and handymen.
2. It was Mr Sherer's evidence that a common start and finishing time for trades persons and other staff within the Engineering Department was beneficial to the Respondent. In his view, it was good management as it allowed proper supervision of the work to be done and for the prioritising of urgent work. Such benefits can be seen in the efficient dovetailing of the work involving the plumbing, carpentry, painting trades and handymen so as to ensure that the room, bed and ward areas or essential equipment requiring repair was returned to use as quickly as possible. This was highlighted in December 2015 when certain repair work in and around bed five in the Emergency Department had been completed quickly and efficiently by the handyman and the Zammits coordinating the required work.
3. Since late May 2015, Mr Sherer said it had been his practice to meet with the leading hand trades staff prior to the completion of their shift and usually during the last 30 minutes of the relevant shift, so as to enable him to prioritise the BEIMS to be commenced the following day. The meeting was also to allow Mr Sherer to check the status of work in progress or completed. Given the earlier finishing time of the painters, Mr Sherer arranged a separate meeting each day with Mr Craig Zammit between 2 pm and 2.15 pm.
4. Mr Sherer contended that the practice of meeting with the painters on a daily basis helped him to know where they would be working the next day and in the event of an urgent job, they could be contacted quickly. In that regard, Mr Sherer recalled that on 17 June 2015, he was contacted by a manager concerning the urgent requirement to undertake painting work in the food services dishwashing area because of an imminent Health Services Audit. As he was aware of the painters work location from his discussions with Mr Craig Zammit the day before, Mr Sherer was able to contact Mr Zammit and arrange for the necessary urgent painting work to be completed prior to the audit inspection.
5. Mr Sherer stated there were a number of problems associated with the painters finishing work at 2.30 pm. He was required to conduct two meetings each afternoon to cover painting staff and later, the other trades and handymen. Moreover, as it was not possible to conduct the meetings concurrently, the time gap 45 minutes between meetings required him to remain in the office area and not attend "to other pressing matters in the field".

Submissions

1. Whilst I have considered all of the material put to me in this matter, I propose to briefly summarise the final submissions of the parties in the terms set out below.

Union

1. As a matter of industrial justice, there was no basis for the Respondent to refuse to permit the Zammits to work flexible hours so that they can collect their primary school children from school and care for them each afternoon.
2. No family members were available to assist with after school care arrangements. Child care was not affordable on the grounds that they currently paid school fees and private health insurance. If the families were forced to pay child care, swimming lessons for the children may need to be dropped.
3. The evidence of Ms Michelle Zammit was that if her husband Cameron finished work at 3.30 pm, he would arrive at the Edensor Park Child Care Centre shortly before his children arrived by bus.
4. In terms of work organisation, the Union contended most painting work was not urgent and was generally pre-planned. Work is allocated through the BEIMS system, and sometimes directly through the carpenter. Mr Sherer also allocated painting work "a few times per week".
5. The Respondent has refused to provide the Zammits with reasons for the changes sought. For their part, the Zammits did not see that the Respondent was disadvantaged by the current flexible working hours arrangements. Painters were readily contactable if necessary.
6. The Union relied on the evidence of Mr Connell to support the proposition that the painters can work unsupervised. The evidence of the Respondent's witnesses that the current arrangements should not continue was flawed. The Respondent had not raised any issues related to work performance and the evidence concerning the need for a change was vague.
7. Simply put, the Union was dismissive of the Respondent's objectives under the "Whole of Hospital" approach to work with affected staff to improve operational efficiency, work co-ordination, and communication within and across the spectrum of trades staff. It considered the one hour differential made no practical difference to the coordination or efficient performance of painting work. Moreover, the Union considered much coordination and prioritisation was already being undertaken by the parties and sometimes involved Mr Sherer.
8. There was no evidence parties were required to perform a significant role when emergency procedures are invoked. The Union submitted that the afternoon meetings sought by the Respondent with leading hands was not occurring daily as alleged.

Argument in favour of remedy sought

1. The Union contended the orders sought fell within the scope of s 136 (b) (c) or (d) of the Act and there was no impediment to the Commission granting such orders.
2. The Union drew the Commission's attention to the decision of Grayson DP in Australian Services Union of New South Wales v Sydney Water Corporation [2004] NSWIRComm 294 where the Union sought and obtained orders pursuant to s 136(1)(b) of the Act to the effect that two employees should be appointed by Sydney Water to particular positions. At [17] to [21], His Honour stated: 17. Turning then to the nature of relief sought by the ASU, it is contended by Mr Fitzgerald for Sydney Water that the first order sought does not fall within the kind the Commission is empowered to make under section 137 of the Industrial Relations Act Zammit (the Act). Mr Fitzgerald as I understand him did not take issue with the Commission's power under section 136 to make an award in arbitration proceedings but rather suggested that many of the decisions of the Commission purporting to make orders are in fact the Commission exercising its power under section 136 (1) (b) to make awards. 18. That submission, however, overlooks the definition of award contained in the Dictionary at the end of the Act which is as follows: award means an award made, or taken to be made, by the Commission under this Act, and includes any order of the Commission under this Act that sets conditions of employment. 19. The Dictionary at the end of the Act then defines conditions of employment as including any provisions about an industrial matter and section 6 of the Act thereafter provides by way of a general definition and a series of examples, a wide-ranging scope for the operation of the Act with respect to industrial matters. 20. I do not consider and to be fair to Mr Fitzgerald it is not strongly pressed, that the Commission is limited in its arbitral function in such a way as to preclude the granting of relief in the nature of the relief sought by the ASU in the first order for which it here applies. Conversely, I am of the view that the Commission would if so satisfied on the evidence, be within the scope of section 136 (1) (b) of the Act in making an order of the type sought by the ASU. 21. I note there is support for that view in the unreported decision of Sams DP in IRC No. 810 of 2002 Australian Liquor Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch v Parramatta Leagues Club Ltd [2002] NSWIRComm 208 upon which the ASU relies. In that case, Sams DP although declining on the merits to grant the relief sought by the notifying Union, rejected the employer's submission to the effect that the Commission lacked power in the arbitration of a dispute, to make an order under section 136 of the Act of the type sought by the Union in that case. His Honour held that section 136 provided sufficient scope to make orders of the type sought by the Union fixing the hours of work of a casual employee quite independently of and distinctly to the kinds of dispute orders envisaged by the limiting provisions of section 137 of the Act.

Respondent

1. The Respondent submitted the Commission should not intervene in this matter unless it is comfortably satisfied that the Respondent's conduct was unjust or unreasonable. In pressing this matter, the Union is asking the Commission to assume the role of the employer and interfere with a system of work that has been developed consistent with the Respondent's business requirements.
2. Notwithstanding the fact that the Zammits have been on notice for a considerable period that the Respondent sought to align their working hours with other trades staff, the Respondent contended that the change should be subject to a transitional period.
3. Liverpool Hospital is the largest within the LHD and is also one of the busiest hospitals in New South Wales, with 220 daily patient admissions and approximately 215 presentations to the Emergency Department. The Hospital has experienced performance issues including a financial deficit of $8.2 million in the 2014/15 financial year. The Respondent submitted that s 28 of the Health Services Act 1997 provides: The local health district board for a local health district has the following functions: … (b) to approve systems: (i) to support the efficient and economic operation of the local health district, and (ii) to ensure the district managers its budget to ensure performance targets are met, and …
4. Against the backdrop of performance issues and financial constraints, the Hospital has been required to examine all of its operational and functional areas, including clinical and support services, so as to ensure to the best extent possible, it operates at peak efficiency at all times. For its part, the Engineering Department needs to be responsive to the Hospital's requirements and ensure that work is coordinated efficiently and effectively. In that regard, the "Whole of Hospital" approach has resulted in increased emphasis being placed on trades staff to perform their duties in a timely and efficient manner, requiring greater coordination of their work.
5. Whilst challenged by the Union, Mr Wenden has directed group engineers since 2015 to meet informally with trades staff and leading hands immediately prior to the end of each shift. The purpose of those meetings was to ensure that supervisors were up-to-date on the work completed and aware of the plans for the following day. Those meetings also provided an opportunity for particular issues to be raised and for work to be prioritised and where necessary, assessed or reassessed consistent with the operational requirements of the Hospital.

Argument against remedy sought

1. The terms of the orders sought by the Union would require the Respondent to make the following operational changes: 1. the current flexible working arrangements to continue until the end of the 2018 and 2019 school years; 2. the duties of the After-Hours On Call Manager would be required to change requiring him to coordinate the reprioritisation of painting jobs at or prior to 6 am in circumstances where such work is currently assessed by managers and supervisors at the commencement of the 7 am shift; 3. increased use of email or mobile phone contact as a means of communicating job requests at or prior to 6 am.
2. In order to attract the Commission's intervention, the Union was required to show satisfactory and convincing reasons exist to support the proposition that the Commission should interfere with the Respondent's capacity to manage its various operations as it sees fit and particularly manage its operations in terms of the working hours of engineering trades staff employed by the Hospital. In that regard, Respondent sought to rely on the decision in Steel Works Employees and Engine Drivers, & c (Australian Iron and Steel Limited - Port Kembla) Award [1956] AR 855 at 899 where Richards J observed: The Company is entitled to decide upon and introduce its own system of working hours and only in very extreme circumstances would the Commission interfere with this right.
3. The Respondent further relied upon the decisions of the Commission as presently constituted in Health Services Union v Ambulance Service of New South Wales re- Changes to Demand Protocol [2008] NSWIRComm 1027 and Notification under Section 130 by the Ambulance Service of New South Wales of a dispute with Health Services Union re-threatened industrial action in Inner Hunter Area [2008] NSWIRComm 1136 to support the proposition that the Commission will not lightly interfere with the rights of an employer to manage its business unless those rights are exercised unjustly or unreasonably or impose harsh, oppressive or unsafe demands employees or, the work to be performed is unjust or unreasonable.
4. The Respondent further submitted the Union's case in this matter was analogous the circumstances that gave rise to the dispute and ultimate determination by Staff J in HSUeast. In that case, the local health district proposed to alter the start and finish times of a ward assistant from 6 am to 2 pm, to 7.30 am to 4 pm. The employee was given the approximately 6 weeks notice of the proposed roster change.

Test to be satisfied before the Commission should intervene

1. The Respondent submitted the Union must show satisfactory and convincing reasons why the Commission or to intervene in this matter. Shortly stated, the Union has urged the Commission to interfere with the Respondent's capacity to manage its operations as it sees fit and in particular, manage its operations in terms of setting the working hours of Engineering Department trade staff. In that regard, the Respondent contended it was not for the Commission to substitute its own views should they be different from the Respondent, "without more" being shown: In re Department of Tourism Appointments [1980] AR (NSW) 241 at [259].
2. In order to attract the Commission's intervention, the Union was required to show satisfactory and convincing reasons exist to support the proposition that the Commission should interfere with the Respondent's capacity to manage its various operations as it sees fit and particularly manage its operations in terms of the working hours of engineering trades staff employed by the Hospital.
3. The Respondent submitted the Commission should not intervene in this matter unless it was comfortably satisfied that the Respondent's conduct was unjust or unreasonable. The applicable test for the Commission's intervention was summarised by Hungerford J in BHP Steel (AIS) Pty Limited as follows: The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of long-standing and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice …
4. Reliance was also placed on the decision of Harrison DP in Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority [2007] NSWIRComm 162 at [88]:where his Honour observed: Management hold a responsibility to determine business needs and may require employees to work where these needs require. The obligation of the employee is to meet all lawful and reasonable requests of the employer.
5. The Respondent further relied upon decisions of the Commission as presently constituted to support the proposition that the Commission will not lightly interfere with the rights of an employer to manage its business unless those rights are exercised unjustly or unreasonably or impose harsh, oppressive or unsafe demands employees or, the work to be performed is unjust or unreasonable.

Consideration

1. In determining this matter I have read and considered all the material filed by the parties including the various witness statements, relevant authorities and the submissions.
2. This matter is one which should have been resolved in conciliation. However, that was not the case and the Union continued to press its total opposition to the proposal by management that the hours of work of two painters, Mr Craig and Mr Cameron Zammit revert to the standard Engineering Department hours of work of 7 am to 3.30 pm.
3. The reason for the changes sought by the Respondent and the reasons why the Zammits' current flexible working hours arrangement should continue are set out in the respective submissions above. The Respondent argued in part that there is a management prerogative in implementing the change sought. The variation to commencing times will allow management to better plan and manage maintenance works as part of the "Whole of Hospital" approach adopted to reduce a budgetary deficit and, implement efficiencies across both maintenance and clinical areas.
4. During the hearing, the Union sought to discredit the evidence of the Respondent's witnesses insofar as the understanding behind and the requirement for, the recently introduced meetings between managers and leading hands each afternoon at or around 3.30 pm. Having considered all the material before the Commission concerning the merits of such meetings, I have determined that it matters not that the evidence of the Respondent's witnesses concerning the value of the end of shift meetings may not have fully reflected the decisions of senior management. Rather, what really matters here is the resolve by senior management to introduce what it considers to be a more efficient and accountable method of managing engineering maintenance tasks with the ultimate goal being improvements to efficiency and productive performance and, reducing costs.
5. In this matter, there is no award impediment to the changes sought by the Respondent. There is also evidence that the Respondent has consulted extensively with the Union. And, there can be no argument that the Union has sought to represent the Zammits with vigour. Simply put, the Union has sought to thwart the Respondent's proposals to improve operational efficiency.
6. As a general proposition, industrial tribunals will examine all the faults of the case and will not interfere with the right of an employer to manage, unless what is being sought by the employer imposes an unfair or unreasonable demand on the employees subject to the change sought, otherwise known as industrial injustice. It is not, however, the role of the Commission to place itself in the shoes of the Respondent or Union. Rather, the Commission is required to view objectively the cases relied upon by the Respondent and Union alike. That task also requires the Commission to have regard to the rights of the Respondent to manage its business in an efficient and productive manner. Similarly, there is a requirement for the Commission to consider the rights of the Union and its members to resist the possibility of an unfair or unreasonable outcome resulting from the exercise of the Respondent's management prerogative.

136 Arbitration of dispute 1. The Commission may, in arbitration proceedings, do any one or more of the following: 1. make a recommendation or give a direction to the parties to the industrial dispute, 2. make or vary an award under Part 1 of Chapter 2, 3. make a dispute order under Part 2, 4. make any other kind of order it is authorised to make (including an order made on an interim basis). 1. Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

1. It must be said that the remedy sought in terms of the making of an award or the variation of the existing Award or the making of a dispute order received very little attention in the proceedings. There is no general power in the Act to make awards or orders about an "industrial matter" pursuant to an industrial dispute. The Commission's arbitral powers in s 136 are limited: NSW Teachers Federation v Department of Education and Training (2003) 121 IR 177 at [31].
2. The Respondent's submission that in the event the Union sought the making or varying of an award as provided by s 136(1)(b), it would need to mount a case that satisfied the Arbitrated Case Principle promulgated in the State Wage Case 2010 (No 2) [2011] NSWIRComm 29 is correct.
3. An application made pursuant to s 136(1)(b) must meet the threshold evidentiary requirements of the State Wage Case 2010 Principles. In City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49, the Full Bench observed: 9 It is appropriate that we set out the fundamental principles governing award making and the Special Case Principle. 10The Commission's award making powers are conferred upon it by s 10 of the Act. 11 In determining an application to make a new award to replace an existing award, the applicable test, pursuant to s 10 of the Act, is whether the award to be made will set fair and reasonable conditions of employment for employees: Re Club Employees (State) Award [2002] NSWIRComm 362; (2002) 122 IR 272 at [102]. 12 The presumption is that the existing award, covering the same field, already sets fair and reasonable conditions of employment for employees because it was made in conformity with the obligations imposed upon the Commission under s 10 of the Act: Re Pastoral Industry Award [2001] NSWIRComm 27; (2001) 104 IR 168 at [14]. 13 However, that presumption is rebuttable where an applicant for different terms can demonstrate, on the evidence, that the existing award does not provide fair and reasonable conditions of employment: Re Storeworkers - IGA Distribution Pty Ltd New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156; (2002) 124 IR 1 at [42]. 14 Factors constituting a proper basis for the rebuttal of the presumption will include whether the conditions in the current award are no longer fair and reasonable having regard to changed circumstances, including changes in the respective positions or conduct of the parties; developments in a business, industry or the economy generally, and where changes have occurred in the factors which underpinned the conditions found in the current award, the subject of review: IGA Distribution at [44]. 15 The application must meet the threshold requirements of the principles promulgated in the State Wage Case 2010. Where a claim results in arbitral proceedings for changes in conditions of employment which exceed those allowed elsewhere in the principles (see, for example, Principle 2), the applicant will need to satisfy the Arbitrated Case Principle: see State Wage Case 2010 at [230]. In particular, the applicant may need to satisfy the special case component of that principle which is in the following terms: 8.4 Special Case Considerations 8.4.1 A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2011) 113 IR 384 and the cases referred to therein at [165]-[168]. 8.2.4 All special cases shall be tested against the public interest. 16 The requirements of the Special Case Principle will be met where the applicant for a proposed award or particular provisions within it persuades the Commission that the application satisfies a dual test: that the provision or provisions of the award sought constitute fair and reasonable conditions of employment and that the matter in question has special attributes or is 'out of the ordinary' so as to take the matter outside the restrictions which otherwise apply under the principles: Social and Community Services Employees (State) Award [2001] NSWIRComm 247 at [24]; Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [166]; IGA Distribution at [45]. 17 The onus lies on a party arguing for a special case to persuade the Commission that the terms it seeks should be made: Re Pastoral Industry at [77] and Club Employees at [102]. The evidentiary requirement to establish a special case is, however, no more strict than in an ordinary matter, except that the applicant for a special case will need to establish an adequate evidentiary foundation for the factors which are relied upon as demonstrating special case attributes: Operational Ambulance Officers at [168]; Pastoral Industry Award at [73] and [74].

Orders 1. The Union's application in IRC 2015/377318 is dismissed. 2. Mr Cameron Zammit and Mr Craig Zammit hours of work shall be 7 am to 3.30 pm commencing on and from Monday, 9 January 2017.

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 December 2016