Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd Re Overtime 1977 AR at 17;Bale v Crown in Right of the State of New South Wales

9The relevant industrial instrument is the Public Health System Nurses and Midwives' (State) Award 2011 373 IG 312 ("the Award") which came into operation on 23 February 2011 to remain in force until 30 June 2013. 10The relevant meal break provision is clause 4 (ix) which states: (ix)Each employee who works in excess of five hours must have a break of not less than thirty minutes and not more than sixty minutes for each meal occurring on duty as follows: Breakfast-between 6am and 9am Midday Meal-between 12 noon and 2pm Evening Meal-between 5pm and 7pm Night Meal-between 10pm and 2am. Employees must not be required to work during meal breaks as a matter of routine practice unless mutually agreed at the local level. Provided that any time worked during such break shall count as working time and unless the employee is permitted to finish duty early on the same shift then overtime becomes payable once the total ordinary work time of the shift has elapsed. Provided further that where practicable an employee engaged to work for five hours or less in any one shift may elect not to take a meal break as otherwise provided for in this subclause without penalty to the employer. The term "where practicable" encompasses regard being paid to the service requirements of the employer. 11It is not contentious that the Award has applied in identical terms since 2004 and in effectively identical terms in the relevant industrial instrument from 1994. 12The practical and legal effect is that where a nurse is required to work during a meal break, whether that be occasional or by local agreement as a matter of routine practice, entitlement to payment arises.

13The Forensic Hospital at Malabar is a purpose-designed facility opened in November 2008. The facility is classified as a public hospital. It is not a correctional facility (Association's Outline of Argument): 3.The Forensic Hospital provides care and therapeutic treatment for male and female patients in three categories: (a)persons in justice system who are classified not guilty by reason of mental illness or as unfit to plead; (b)short term acute care for persons in the correctional system for stabilization of acute symptoms; and (c)high risk civil patients for short term acute care. 4.These health services were originally provided through the Prison Medical Services operated by the Department of Corrective Services. At that time, the health facilities/ hospitals were located within gaols and the nurses were employed by the Public Service. As such, the routines and protocols in those health facilities were regulated by or operated in conformity with the gaol. 5.In 1994 nursing staff in the Prison Medical Service were transferred from the Public Service to the public health system and became employees of the Department of Health. 14Since the notification of this matter in December 2011 additional units of the Hospital have been progressively opened and staff numbers increased. 15Shift arrangements have been altered from two 12 ½ hour shifts, to an 8 hour, 8 hour, 10 hour shift pattern with an additional 10 hour overlapping shift. 16Justice Health have continued to pay the meal break to all employees except casual employees and those engaged after 10 May 2012 for whom the practice was commenced and then discontinued with effect from 24 September 2012.

17Neither party were able to provide any definitive evidence of when or in what circumstances the practice of a paid meal break for nurses employed with the correctional facilities commenced. 18There is no dispute that the practice has applied in correctional facilities for some decades. It has been a subject of contention between the parties prior to the opening of the Forensic Hospital. It is submitted without demur that in the course of consultation surrounding the opening of the Forensic Hospital the nurses campaigned for the retention of the straight eight hour shift with a paid meal break. 19Justice Health submits: 9.It is not contentious that the practice arose in circumstances where there may have been only one or a few nurses working in the particular facility thereby preventing some nurses from being able to take meal breaks. It is also possible that the practice arose because the shifts tended to be organized around the rhythm of the correctional facility. As such, it appears that rather than identify each occasion upon which a nurse was required to work through his/her meal break, Paid Meal Breaks were introduced far all nursing staff.

20The reasons for the proposed change were communicated to the Association on 25 November 2008 by email to Mr Michael Whaites, an Official of the Association, in the following terms (Attach C to Ex 5 affidavit of Mr Whaites): Dear Michael as discussed I wish to outline the reasons that Justice Health has for changing the work conditions that prevail in the rest of the JH services in the DCS owned facilities, and designing a roster that allows for an unpaid meal break:-

1. Firstly is patient safety. Verbal face to face handover is best practice and evidence suggests that the successful transfer of information is 80% with verbal discussion as opposed to written or taped, neither of which can be queried in real time. This can be most efficiently achieved with a 30 minute cross over between shifts.
2. Handover for the Forensic Hospital provides no patient lock-in time to allow time to catch-up and read or listen properly to the non-verbal handover, so the information transfer needs to be as efficient and effective as possible at the start of the shift.
3. Staff fatigue is a real consideration and a quarantined meal break is supported better when the meal break is extra to the shift e.g. on duty for 8.5 hrs, but only work for 8.
4. The buildings have been designed to provide away from the clinical areas respite, unlike the DCS facilities, so the breaks will be more valuable and staff will not need to leave the premises.
5. Other area mental health services have unpaid meal breaks so this will bring us in line with other public hospitals. When first considering the rosters, I was unaware that JH had these existing conditions but can understand how this would apply in a DCS facility that is difficult to leave for an unpaid meal break. These facilities primarily offer day shift only whereas the hospital will be running 24 hours a day with no lock-in period for the patients so handover will be occurring 2-3 times a day with the concomitant opportunities for handover errors. Very happy to discuss matters further Michael. 21The outcome of a dispute meeting between the Association and the Justice Health on 26 November 2008 is recorded in the following terms (Ex 5 Attach. D): Agreed outcomes of the Dispute meeting are: Paid Meal Breaks
6. The status quo with regard to the paid meal break is agreed (Justice Health's intent remains to cease this custom and practice. No flow on impact for other areas).
7. Justice Health will look at rostering options, the number of 8 & 12 hour shifts, to see if this provides the required opportunities for handover.
8. The Association will consult with members to see if alternative solutions can be found. 22Correspondence dated 26 November 2008 was forwarded from the Association to Justice Health formally invoking Clause 48, the dispute procedure of the Award in respect to paid meal breaks (Ex 5 Attach E). 23Justice Health submits that the practice of paid meal breaks was instituted at the Forensic Hospital as it was uncertain at the time of opening how shift arrangements would work in practice as beds and wards were being opened progressively, leading to a view by Justice Health that nurses may be called upon to work in their meal breaks. 24The affidavit of Ms Judith Neville (Ex 1) sets out consideration of the matters between the parties from 26 November 2008 when correspondence was received from the Association that the practice should continue (Ex 1 Tab 4), and the minutes of Staff Consultative Meetings from January 2009 to December 2011 without resolution which ultimately led to these proceedings. 25I am satisfied that there has been adequate notice provided to the Association and employees and accordingly notice is not an impediment to change.

26The Association relies upon a memorandum of understanding between the NSW Department of Health and the NSW Nurses Association (as it then was) for the period 1 July 2010 to 30 June 2013 (Attach. A to Ex 4, second affidavit of Mr Blair). The memorandum was signed by the parties on 22 February 2011. 27The Association relies upon clause 7 No Extra Claims which states: 7.No Extra Claims 7.1The parties agree that during the term of this MOU, there will be no extra wage claims, claims for improved conditions of employment or demands made in respect of the employees covered by the Association and employed under the Awards, and further that no proceedings, claims or demands concerning wages or conditions of employment in respect of those employees will be instituted before the Commission or any other arbitral tribunal. The Association agrees that its "Experienced Nurse Claim" in Matter No. IRC 1277 of 2008 will be discontinued and will not be reactivated. 7.2 The agreement in the preceding paragraph does not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing provisions in the Awards, or this Memorandum. 7.3 The parties further agree that during the Term of this Memorandum of Understanding, consent variations to the Awards may proceed. 28I do not regard a change in the practice of paid meal breaks for Forensic Nurses as restrained by the No Extra Claims provisions of the memorandum. 29The issue has been alive from November 2008. Further, the matter, in my view, falls within clause 7.2 concerning the application of an award provision.

30The Association argues that the practice of a paid meal break for nurses in the Corrective System is a crystallised custom and practice. 31Mr Gibian for the Association relies upon a decision of Watson J in Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd Re Overtime 1977 AR at 17 wherein a custom and practice of some 20 years standing was upheld despite His Honour stating that: What is sought is not something which I would be prepared to order in other circumstances. In my view it is neither a necessary nor a reasonable condition to apply as an award prescription, without qualification as to circumstances or time. 32Mr Gibian also referred me to a decision of Boland J (as he then was) in Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) (2000) 106 IR 354 in which His Honour said (at para 69): The alternative proposition is that where a judge no longer requires the services of a particular tipstaff for whatever reason, short of misconduct on the part of the tipstaff, the "crystallised custom" is that the tipstaff will be available to be placed on the staff of another judge or transferred to other duties. The term "crystallised custom" appears to have been coined by Professor Sir Otto Kahn-Freund and is referred to in Byrne v Australian Airlines Ltd (at 423). A "crystallised custom" refers to a custom or usage "so well known and acquiesced in that everyone making contract in that situation can reasonably be presumed to have imported that term into the contract". (See also PSA & the Zoo [2007] NSWIRComm 1080; and Notification under s130 by Snack Brands Australia of a dispute with the National Union of Workers, NSW Branch & Anor re superannuation contributions [2000] NSWIRComm 243) 33I find against the Association's argument on this ground for the following reasons. 34The practice of paid meal breaks has indeed been of long standing in correctional facilities. The circumstances of the Forensic Hospital are quite different, not only in departing from an incarceration role in favour of a therapeutic model, but in the number and type of employees involved. 35In correctional centres the nurses are in small numbers (the evidence is one or two) and it is correctional officers who operate the facility. By comparison, Ms Neville's evidence is that there are in excess of 203 full time equivalent nurses employed at the Hospital supported by clerical officers and mental health care workers. There are also medical staff in the facility. Perimeter security is a separate function. 36Mr Brian Curtis Owens is the Secretary of the State-Wide Branch of the Association. 37Mr Owens commenced employment as a registered nurse with the NSW Prison Medical Service in June 1990. Mr Owens continues to be employed by Justice Health and has worked as a registered nurse at most metropolitan correctional facilities and at various times has acted as Nurse Unit Manager including C Ward at Long Bay Hospital, which he put was one of the Forensic Units at the old prison hospital in use prior to the opening of the Forensic Hospital in 2009. 38Mr Owens is currently working as a registered nurse in the medical surgical unit at Long Bay Hospital which is part of the Long Bay complex. 39The evidence of Mr Owens (Exhibit 6) describes the duties and role of a nurse in the correctional system including the inability to take a meal break. Mr Owens notes that the correctional institution is under the control of correctional officers who also have the benefit of a paid meal break. 40Mr Owens deposed that it must be understood that in a correctional environment there is limited access to prisoners for the provision of routine healthcare. 41Mr Owens further deposed that there are some sites within the correctional system that have only one nurse on duty, and others with only one on a particular shift where taking a meal break at a prescriptive time may be profoundly irresponsible. 42The Forensic Hospital is a new and different way of dealing with those unfortunate enough to qualify for admission. There is a significant investment in specific facilities and a paradigm shift in the way in which the patients are treated. 43The evidence of Mr Owens emphasises the difference between nurses in a correctional centre and those at the Forensic Hospital where nurses have primary engagement with patients for the purpose of rehabilitation of mental health compared to a correctional facility. 44Health care services in correctional facilities must be delivered within the protocols and schedules of the facility. 45There is no basis to expect that the procedures, customs or practices should transfer from the incarceration model to the therapeutic model or from one facility to another.

46The Association submits that employees were informed on engagement that they would have the benefit of a paid meal break and accordingly that this entitlement is specifically imported into the contract of employment. 47The evidence of Mr Michael Whaites (Exhibit 5), an organiser employed by the Association, is that in the course of a union meeting held on 26 November 2008 to consider the removal of paid meal breaks members had informed him that: They told us that if we transferred to the Forensic Hospital our conditions would not change. 48Mr Whaites was not required for cross examination. This evidence is accepted however lacks the benefit of specificity. At best this could only apply to persons transferring from the Gaol to the Forensic Hospital. 49Ms Terri Ann Vaughan is a registered nurse employed at the Forensic Hospital from January 2009. Ms Vaughan provided an affidavit (Exhibit 8), however, she was not required for cross examination. 50Ms Vaughan qualified in the United Kingdom and moved to Australia to take up a position at the Forensic Hospital. Her evidence is that she was specifically informed at an interview for a position at the Forensic Hospital that she would have the benefit of a paid meal break as one of the enticements to take the position. 51Ms Brenda Jocelyn MacPhail is an enrolled nurse employed at the Forensic Hospital. Ms MacPhail provided an affidavit (Exhibit 9), however, was not required for cross examination. 52Ms MacPhail deposed that shortly after she moved from New Zealand to Sydney in 1989 she commenced employment with the Prison Medical Service, the predecessor of Justice Health. She has continued to be employed as a nurse in various correctional facilities and has always had a paid meal break. 53The evidence of Ms MacPhail is that she decided that she wanted to move to the Forensic Hospital when it began and attended a number of union meetings concerning the transfer, wages and conditions. Ms MacPhail deposed that during these union meetings the feedback was that nurses would continue to receive the paid meal break and that since transferring to the Forensic Hospital she has had the benefit of that condition. 54Ms Lynda Shaw is a registered nurse employed at the Forensic Hospital. Ms Shaw provided an affidavit (Exhibit 10), however, was not required for cross examination. 55Ms Shaw is a hospital trained psychiatric nurse. She became a registered nurse in January 1981 and has worked at a number of hospitals in the Sydney Metropolitan area. 56Ms Shaw deposed that when first approached by an employment agency with an opportunity to work at the Forensic Hospital she declined due to the travel distance from her residence. Her evidence is that after some research and further representation by the employment agency, which included advice that she would work 12 hour shifts other than the first two weeks of orientation, she accepted and was engaged in mid May 2009 to work some casual shifts. 57Ms Shaw's evidence is that during the orientation Ms Eason, Director of Nursing, said words to the effect: You will be working 12 ½ hour shifts and one 8 hour training day every 4 weeks and you will be getting paid meal breaks. You will be paid ½ hour overtime on a 12 ½ hour shift. 58Ms Shaw deposed that the presentation by Ms Eason was very influential upon her decision to apply for full time employment at the Forensic Hospital. 59There is no argument that Ms Eason represented the circumstances of the time to Ms Shaw. To the extent those circumstances change over time, the not unusual situation arises in a contract of employment which may be regarded as repudiated or altered by agreement. 60A similar consideration arises with the evidence of Ms Vaughan, while the evidence of Ms MacPhail is limited to what she understood from attending union meetings at which, at the very least, the issue of paid meal breaks was an active consideration. That Ms MacPhail obtained understanding that the matter was resolved, is at odds with the evidence of ongoing conjecture over the working arrangements for the hospital as it progressively opened and the therapeutic operating model was implemented. 61Employment is governed by the Award which, among other things, affords a process to change shift arrangements by consultation. I am satisfied that when negotiations of 12½ hour shifts and paid meal breaks were made these were the circumstances applicable at the time. The employer retains a right to organise the work in the most efficient manner. Obligation as to notice and consultation have been met and accordingly I do not regard the changes as a repudiation of the contract of employment. 62The attitude of the Association toward shift changes is curious; it has moved from a campaign to retain 8 hour shifts with paid meal breaks on a status quo concept to complaining about the replacement of 12½ hour shifts in favour of 8, 8 and 10 hour shifts, putting arguments that the 8 hour shift rosters are an impediment to recruitment and retention. 63It would seem that there is an inherent resistance to change, either widespread or within a section of the workforce. This is understandable and stability of shift arrangements is desirable, however, this does not outweigh management's right to organise the hospital in the most efficient manner. 64Justice Health submits that the shift system proposed of 8½ and 10½ hour shifts will facilitate the scheduling of uninterrupted meal breaks and observance thereof. 65As a matter of industrial policy access to an uninterrupted meal break is to be preferred.

66The removal of paid meal breaks is opposed on the basis of industrial merit, which includes a consideration of the practicality of the Forensic Hospital staff actually achieving a meal break, with emphasis on the break. 67Mr Gibian helpfully made reference to Decisions of Wilcox J of the Federal Court of Australia in Durnford v Allen Taylor and Company Limited 1990 34 IR 423; and Duncans Holdings Limited v Cross and Others 1997 76 IR 261; to highlight the distinction between a meal break and a meal taken on the job more commonly referred to as a crib break. 68In Durnford Wilcox J said at 428: Meal Breaks A considerable amount of evidence was given about the opportunities available to Mr Maynes and Mr Warren to take meal breaks. I have already made some reference to this matter. By way of elaboration, I find that, on many shifts, the men had the opportunity to sit down and eat an uninterrupted meal. Indeed, it was common for the men to have lengthy periods of time during which they had no pressing duties, when they were able to eat a leisurely meal and possibly read a newspaper or a book. There seems to have been a considerable variation in the extent of the work required to be done from one shift to another. However, it is equally clear that was never a defined break, during which the attendants were free to do as they wished. Although they always had some opportunity to eat lunch, often at a leisurely pace, they never had a "lunch break"; a period of time during which they were free to leave the boiler room and chat to other workers or even leave the premises altogether on business of their own. Exemplifying the principle "They also serve who only stand and wait", they were always on duty. 69And in Duncans Holdings his Honour said at 263: Where cl 30(h)(ii) applies, a one hour meal break is not provided, merely a 20 minute crib break. The difference between the two breaks extends beyond duration. A "lunch break" is a period of time during which employees are free, not only to eat a meal, but to leave their immediate workplace - in this case the boiler room - and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own. A "crib break", in contrast, is a period during which the employee may "down tools" and eat but must remain in the immediate workplace and available in case of any emergency: see, generally, a case involving an earlier version of the Timber Industry Award, Durnford v Allen Taylor and Co Ltd (1991) 34 IR 423 at 428. When these concepts are considered, it will readily be seen it would be incongruous to allow a one hour unpaid lunch break to an attendant who is required constantly to monitor a boiler. Acting conscientiously, the employee would not feel able to take a break. On the other hand, there would be no difficulty about the employee taking a short break to eat a meal, while remaining in, or close to, the boiler room. The concept of "crib break" perfectly fits the situation's requirements. 70There is a substantial body of evidence brought in this matter against the practicality of achieving a meal break as defined by Wilcox J; including the difficulty in leaving the premises, the requirement to carry pagers so as to be on call during the break, the shortage of staff which is said to occur regularly, and the difficulty in rostering breaks for staff during a shift. 71One effect of this evidence is to further distinguish between the routine healthcare provided by nurses in correctional facilities and the role of nurses in the Forensic Hospital. They are, however, all practical operational issues which must be addressed on a shift by shift basis. 72As a matter of industrial merit working through a meal break is intended to be the exception not the rule. 73The Award primarily prohibits working through a meal break as a matter of routine practice, the exception is by mutual agreement at a local level. The substance of these proceedings is the unwillingness of management to agree, a position unresolved since the pre-opening consultation. 74As a matter on industrial merit an employee should be entitled to an uninterrupted meal break in a suitable facility. Where this cannot be achieved a payment is to be made. 75The payment is to both compensate the employee and act as an incentive to the employer to arrange work in such a way that an uninterrupted meal break is achieved. 76There are areas within the facility reserved for employees only which are separated by internal security from patients. 77It is not necessary that employees leave the Hospital to have an uninterrupted meal break. 78The evidence of Ms Neville is that instructions will be issued to staff to surrender pagers during breaks so that they are not disturbed. 79I reiterate that there is much conjecture that the proposed arrangements are not achievable. If that be the case, employees will be, for example, working 8 ½ or 10 ½ hour shifts (or such other duration as may be permitted by the Award) with a paid meal break because they are required to be on duty during the meal break. 80It is put in evidence that there is an impracticality having regard to the time necessary to pass through the perimeter security. Employees may choose to do this or not, the salient point is that it is their choice. 81I accept the submissions of Ms Nomchong that an unpaid meal break is the industrial norm and that, while in some workplaces it may be practical to leave the premises, in many it is not. 82The distinctions made by Wilcox J, relied upon by the Association, do not require that an employee be able to leave the premises, just that the employee be able to take an uninterrupted break in a suitable location. 83The Association seeks to rely upon some evidence that staff have been instructed not to leave the Hospital and to carry pagers during their rostered meal breaks. 84This is not material to the present issue. In the current circumstances where meal breaks are paid, it is hardly surprising that the employer feels entitled to direct employees. 85In the circumstances sought a direction will result in an entitlement to a paid meal break. 86There is no impediment on the basis of industrial merit or practicalily to the employer arranging shifts on the basis of an unpaid meal break.

87Ms Nomchong advanced an argument that the payment of meal breaks offends sections 116 and 116A of the Health Services Act. 88Ms Nomchong referred me to a Decision of Brennan J in Director-General of Education v Suttling (1987) 162 CLR 427 as authority for the proposition that there is no authority to engage an employee on terms at variance with the Statute. 89Ms Nomchong submitted that there is no evidence of the Director-General having made an agreement to pay meal breaks or provided a delegated authority to anyone to do so; the practice is unlawful and should cease immediately. 90The Association provided a supplementary submission on 23 October 2012 which concerned the application of sections 116 and 116A of the Health Services Act. 91Justice Health provided a response to the supplementary submission on 2 November 2012. 92In this response Justice Health restated its position that no authority exists for the payment of meal breaks as an over award payment, putting that any such payment would, in the face of sections 116 and 116A, be unlawful. 93The evidence is that the paid meal break in correctional facilities arose out of the operational circumstances and continues to be paid as nurses are required to be on duty during meal breaks. 94The Award allows a local agreement that employees work through the meal break as a matter of routine practice. It is safe to conclude that any negotiation of a paid meal break was in accordance with such an agreement which may be altered. 95I do not regard sections116 or116A of the Health Services Act to be a material consideration as payments made are in accordance with an Award entitlement. 96Similarly, in this regard I note Ms Nomchong's submissions that on opening, the Forensic Hospital had only one unit of 32 beds with 6 staff on day shift and 6 on night shift, and that due to the limited number of staff, they were required to be the emergency response team, and at that time the kitchen and vending machine facilities were not yet fully operational. 97The meal break is paid in accordance with an Award entitlement; it is not unlawful and the issue of s116 and s116A does not arise.

Determination 98For the reasons discussed above I find in favour of the applicant. 99Pursuant to s 175 of the Act I determine that payment for time worked is regulated by the Award. There is no other legal entitlement. 100I find that the notice and consultation undertaken by the parties has been reasonable in all the circumstances to bring to an end any agreement implied or notional that nurses at the Forensic Hospital work through meal breaks as a matter of routine practice. 101I direct management to put in place an appropriate system for supervisors to clearly record any and all requirements for a nurse to work through a meal break and for the release of a nurse to an off duty area for the purpose of a meal break. 102The application by the Association to refer the Award for variation to include paid meal breaks is refused. 103I so decide.

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 November 2012