Health Services Union New South Wales v Health Secretary for the NSW Health Service, NSW Health Pathology Division

Industrial Relations Commission (NSW)|2019-03-12

McNally Jones Staff (Notifier) File Number(s): 2018/231551

Judgment

NSW Health Pathology operates a laboratory at the St George Hospital at Kogarah in New South Wales ("Laboratory"). The Laboratory comprises six departments: Haematology (including Blood Bank), Chemical Pathology, Anatomical Pathology, Microbiology, Central Specimen Reception and Collections.
The Health Services Union New South Wales ("HSU") represents members who are employed as technical officers in the Haematology department of the Laboratory. Those members are (or include) Toula Anastosopolous, Peter Berris, Adib Bishay, Vu Phi (Faye) Hoang and Tina Vaccaro ("Affected Employees").
The Haematology (including Blood Bank) and Chemical Pathology departments of the Laboratory are required to provide services 24 hours a day, seven days a week. Historically, staffing in the Laboratory was divided between those employees working day shifts, Monday to Friday, and an "Out of Hours Service" for night and weekend work. Employees working in the Out of Hours Service were required to be skilled in the services provided by Chemical Pathology, Haematology and the Blood Bank.

Outline of the dispute

The conditions of employment of the Affected Employees are governed by the terms of the Health Employees' Conditions of Employment (State) Award 2018 ("Award"). The Award relevantly provides as follows: 2. Definitions Unless the context otherwise indicates or requires the several expressions hereunder defined shall have their respective meanings assigned to them: "Day Worker" means a worker who works his/her ordinary hours from Monday to Friday inclusive and who commences work on such days at or after 6.00 a.m. and before 10.00 a.m. otherwise than as part of a shift system. … "Shift Worker" means a worker who is not a day worker as defined. "Union" means the Health Services Union NSW. … 3. Hours … (ii) The ordinary hours of work for day workers and apprentices exclusive of meal times, shall be an average of 38 hours per week in each roster cycle to be worked Monday to Friday inclusive and to commence on such days at or after 6.00 a.m. and before 10.00 a.m. Provided that apprentices may commence work on such days before 6.00 a.m. as their trade requires. Provided that the ordinary hours may be altered by mutual agreement between an employer, the Union and the majority of employees in the Department concerned. The Union's approval will not be unreasonably withheld. When such agreement is reached the ordinary hours thus agreed will not attract any penalty or overtime payment under this Award in addition to the ordinary rate of pay for salary or wages. Entitlements to allowances, including allowances set out under Part B, Monetary Rates, will not be affected. No apprentice or Adult Apprentice shall be required to perform work which would prevent the apprentice from attending classes as required by the term of his or her apprenticeship. (iii) The ordinary hours of work for shift workers, exclusive of meal times, shall not exceed an average of 38 hours per week in each roster cycle. … 4. Roster of Hours … (ii) The ordinary hours of work for each employee shall be displayed on a roster in a place conveniently accessible to employees. Unless not reasonably practicable, the roster shall be displayed two weeks prior to the commencing date of the first working period in any roster. Provided that this provision shall not make it obligatory for the employer to display any roster of ordinary hours of work of members of the relieving staff. Provided further, that a roster may be altered at any time to enable the service of the hospital or health institution to be carried on where another employee is absent from duty on account of illness or in an emergency, but where any such alteration involves an employee working on a day which would have been his or her day off such time worked shall be paid for at overtime rates. Furthermore, where a change in roster occurs with less than 24 hours notice to the employee affected, all time worked outside that shown on the employee's roster (prior to the alteration) shall be paid for at overtime rates. (iii) Rosters providing for shift work shall not be introduced into any hospital or health institution or section thereof until such time as the proposals are discussed with the Union by the employer.
The HSU contends that under the Award a person is either a "day worker" or a "shift worker", as defined in cl 2. Nothing in the Award permits NSW Health Pathology to unilaterally change a day worker to become a shift worker and thereby subject that employee to a different regime for the rostering of ordinary hours of work.
NSW Health Pathology's position is that the Award permits it to implement the Proposed Roster, subject to providing notice pursuant to cl 4(ii) of the Award and after discussing the proposal with the HSU in accordance with cl 4(iii) of the Award. To give full effect to cl 4(iii) it must be implied that NSW Health Pathology is entitled to require employees that have previously worked the hours of a "day worker" to work hours in accordance with the Proposed Roster, subject to any arrangements entered into between NSW Health Pathology and an individual employee regarding their working hours.
It is not in dispute between the parties that NSW Health Pathology is entitled to introduce the Proposed Roster. No challenge was raised as to the necessity for, or appropriateness of, the Proposed Roster. The issue is whether the Award permits NSW Health Pathology to compel employees, and in particular the Affected Employees, to work according to the Proposed Roster.
A related issue that requires determination is whether the Affected Employees are, as the HSU contends, properly to be regarded as "day workers" within the meaning of cl 2 of the Award.

The case for the HSU

The HSU read statements by the following witnesses: 1. Toula Anastosopolous; 2. Peter Berris; 3. Adib Bishay; 4. Brendan Edghill; 5. Vu Phi (Faye) Hoang; and 6. Tina Vaccaro.
None of the HSU's witnesses was required for cross-examination.

Toula Anastosopolous

Ms Anastosopolous has been employed by NSW Health Pathology since March 2010, initially on a relief or temporary basis but from March 2011 on a permanent basis. Between 3 April 2017 and 30 January 2018 she worked temporarily on an assignment for which she was given a new employment number. Her hours of work in that assignment were from 8.00am until 4.30pm on Fridays, and were in addition to those she worked in the Haematology department of the Laboratory.
In connection with her employment in the Haematology department Ms Anastosopolous' statement included the following evidence: "9. I work 8 hours on Monday and 7 hours on Tuesday. I commence anywhere between 8 and 8.30am and work until 4.30 to 5pm. My ceasing time depends on the time that I start work. 10. When I applied for this position, I was not told that I would be required to do shift work. If I had been told that I would be required to work shift work I would not have taken this position because of my family situation. … 17. I have occasionally worked four hours on a Saturday and Sunday. This work is only performed in the mornings and when we are short-staffed. …These hours were additional to the 8 hours I worked on Mondays and the 7 hours I worked on Tuesdays."
Ms Anastosopolous described at some length the family circumstances that she said precluded her working to the Proposed Roster.
On 18 May 2018 Ms Anastosopolous received a letter dated the same day and signed by Sudha Pillai, the Laboratory Manager of the Haematology department. That letter, which was titled "Change from non-shift worker status to shift worker status", included the following content: "In July 2017, NSWHP let you know that the Haematology Department at St George Hospital, Kogarah needed to change all technical assistants, technical officers and scientific officers to be shift workers, if they were not already classified as such. As I explained at the time, the reason for this change is to ensure that the laboratory has sufficient coverage of all shifts based on our workload. The key areas that we have problems covering so that we can meet patient demand, are the evening and weekend shifts. Changing staff to be shift workers will enable these shifts to be covered through introducing a 24/7 roster. … You also had an individual meeting with me on the 17 May 2018 advising you that you would be changed to a shift worker for the purpose of undertaking weekend, evening and night shifts due to operational demands. It is now time, following extensive consultation with you, other staff and the Union, to implement the new 24/7 roster. Consequently, as of 1 July 2018 we will start to roster all staff onto a 24/7 roster, rotating all staff through all shifts and all days, Monday to Sunday. Every staff member will have their status in Stafflink changed from non-shift worker to shift worker."
Ms Anastosopolous further deposed as follows: "23. …I have obtained through the New South Wales Health Pathology Staff Link a copy of my employment record on 11 March, 2018. I noticed that on 29 March, 2010 I had been designated as a non-shift employee. My designation appears to have changed to that of a shift worker. I was informed by Ingrid Solomon, the Operations Manager of the Respondent that this change was made to my employment records on 1 February, 2018 even though there had been no discussion with me about changing the status of my employment. …"

Peter Berris

Mr Berris has been employed by NSW Health Pathology since March 2001. He commenced working at the Laboratory in January 2002, on a permanent, full-time basis. He commenced in the Blood Bank section and later transferred to the Haematology department.
In his statement Mr Berris deposed as follows: "8. I was able to obtain from Stafflink the employee profile the Respondent has for me. I have noticed that I am now designated as a shift worker, even though I have never agreed to be a shift worker. … 9. When I became aware of the change in my employment status from non-shift to shift, I sent an email to the appropriate section of the Respondent informing them that I did not agree to the change it had made to my status. I received a reply to this email on 5 June, 2018. … 10. On or about 18 May, 2018 I received an email letter from the Respondent, a copy of which I annex and mark with the letter 'F'. At no time have I ever agreed to the change to a shift worker. … 12. The hours I work as a day worker vary depending on the roster. I can work from 8.00 a.m. to 5.00 p.m., which is what I did when we were given one hour lunch breaks, or 8.30 a.m. to 5.30 p.m., or 9.00 a.m. to 6.00 p.m. 13. In addition to my day hours, I have also worked extra hours on weekends, usually 8.00 a.m. to 1.00 p.m., either on Saturday or Sunday. There was also a roster for working on public holidays and I would work in accordance with that roster. 14. When the Respondent was short-staffed, I have agreed to work a double shift. This has happened about twice in 18 years. 15. All extra hours I worked on weekends or public holidays were paid as overtime."
The letter marked "F" referred to at [10] of Mr Berris' statement is relevantly identical to the one referred to at [20] above.

Adib Bishay

Mr Bishay has been employed with NSW Health Pathology since 1993. He commenced as a technical assistant before being promoted to technical officer.
Mr Bishay deposed as follows: "4. Since I was employed as a Technical Assistant and even when I was promoted to a Technical Officer, my hours have always been either 8.00 a.m. to 5.00 p.m., or 8.30 a.m. to 4.30 p.m. when our lunchbreak was reduced from one hour to half an hour. On occasions, I would work 6.00 a.m. to 2.30 p.m. 5. At no time was I informed during my interview for the position of Technical Assistant, nor when I was promoted to Technical Officer that l would be required to work as a shift worker. In fact, I have never worked afternoon or night shift. I have always worked as a day worker only. 6. I have worked on Saturdays or Sundays when there were staff shortages. My hours would be from 6.00 a.m. to 2.30 p.m. I was paid overtime but later on this was changed to having time off in lieu. 7. The weekend work was sporadic until about 12 months ago. I would be asked if I wanted to work on the Saturday or the Sunday and it was voluntary on my behalf if I did work. 8. About a year ago, Sudha Pillai, my Manager, had a discussion with me and another employee, Rema. Both Rema and I had been working on weekends, with one of us doing either the Saturday and the other doing the Sunday. 9. At this meeting, Sudha said to us in words to the following effect: 'From now one there will be no overtime for weekend day work, only time off in lieu. There will be a roster drawn up where you can work either a Saturday or a Sunday, have the following weekend off and then work again either the Saturday or the Sunday. You and Rema can alternate on which days of the weekend you work.' I agreed to this as it was to be worked on days only, and this was mutually agreed to. 10. When l worked on a weekend, I would take off a day during the week which was my time off in lieu of being paid overtime. However, this day off was without pay. … 14. When I started work with the Respondent, I was told that I could be required to work on weekends and/ or public holidays. (If required) [sic] 15. Since 1993, I have never had to work after 6.00 p.m. on weekdays or weekends. 16. I have recently accessed my personal profile on the Staff Link and noticed that my status had changed from a non-shift worker to a shift worker. … 17. I was never asked whether I consented to having my status changed to a shift worker and I specifically told my manager that I do not agree to change my status, from NON SHIFT TO SHIFT WORKER. … 19. It does not suit me to work shift work as I have never been required to do so and I have organised my life around not being a shift worker for the last 25 years." (Emphasis in original)

Vu Phi (Faye) Hoang

Ms Hoang gave evidence of her employment with NSW Health Pathology, which commenced in April 2000. She has worked in a number of positions and locations, and has been employed in the Haematology department of the Laboratory since 12 March 2012.
Ms Hoang deposed as follows: "8. I have always worked as a day worker (non-shift worker) at St George Hospital, Kogarah. 9. Initially, I worked 8.00 a.m. to 5.00 p.m. with one hour for lunch. One in eight weeks I would start at 7.00 a.m. and finish at 4.00 p.m. and one in eight Saturdays for four hours on overtime rates. I would also be rostered for one week on-call and one to two public holidays per year. … … 11. I now work a new roster which started on the 9 July 2018. My starting times vary from 6.00 a.m., 7.00 a.m. and 8.00 a.m. and my finishing times vary from 2.30 p.m. to 3.30 p.m. and 4.30 p.m. I worked one out of eight weeks because there were 8 of us in the laboratory. 12. I have never worked shift-work. … 18. I do not work nights, weekends or public holidays. 19. I cannot do shift work because I have two children aged 5 and 10. My husband works at night, so I have no one to care for my children. 20. On or about 4 June 2018, the Respondent changed my status from a nonshift employee to a shift employee without my knowledge or consent. …"
On 18 May 2018 Ms Hoang received a letter which was relevantly identical to the one referred to at [20] above.

Tina Vaccaro

Ms Vaccaro initially commenced employment with NSW Health Pathology on 18 October 1999 as a technical officer in the Out of Hours Service. In 2002 she resigned from that employment, and in the same year applied for and obtained a position as a permanent part-time technical officer in the Laboratory.
In her statement Ms Vaccaro deposed as follows: "5. As the employee with whom I job-shared did not want to work every second Wednesday, she offered it to me and I accepted it. My hours then became 23 hours per week. 6. I would also work on weekends and public holidays on a rotating roster, as extra four hourly shifts over my contracted hours. 7. About 3 years ago all employees in the haematology section were informed that there would be no more weekend work available for us, as this work would be done by Out-of-Hours Service employees. 8. We still worked public holidays but because of the number of people wanting to work, we each worked about two public holidays a year. 9. Eventually, at my request, I picked up additional hours so that I was now working 28 hours per week and not working on weekends. 10. In 2016, a position became available in microbiology, which involved 6 hours per week. I applied for this position and was successful. This is a shift position, which meant I could work on afternoons and nights. …This contract is a multiple assignment contract and is treated separately from any other existing contracts that I have with NSW Health Pathology. 11. While my mother was alive she lived with me. Therefore I was able to work the 6 hours at any time of the day, night and weekends, as l could rely on her to look after my daughters. I would also work extra hours when there were staff shortages. 12. My mother died on 24 June, 2018 and since that time, I told my Manager, Chinmoy Mukmerjee that I could not do nights and on-call and that I could do weekends on days only and if that was not possible I would resign. I am a single parent. 13. Chinmoy accommodated my needs. … 15. On 4 June, 2018 I received an email from the Respondent advising me that l was being changed from a non-shift employee to a shift employee without my consent. … 17. I cannot do shift work because I have no one to care for my daughter who is 8 years old."

Brendan Edghill

Mr Edghill is employed by the HSU as a Senior Industrial Officer. In his statement he deposed to the following: 1. his involvement in correspondence and consultation with NSW Health Pathology regarding the Proposed Roster, aimed at resolving the concerns raised by the Affected Employees; 2. the relevant terms of the Award; and 3. the history of the Award provisions going back to 1979.

Submissions

The HSU relied on written submissions. They included, in part, the following contentions: "13. The HSU submits that clause 4(iii) cannot be interpreted as permitting NSW Health Pathology to unilaterally change the status of an individual employee under the Award from a day worker to a shift worker. The provision is, rather, concerned with the introduction of shift rosters generally at an institution and not the rostering or status of particular employees. A number of considerations support that conclusion. 14. Firstly, for the purposes of the Award, employees are either 'day workers' or 'shift workers'. As set out above, a 'day worker' is defined as a 'worker who works his/her ordinary hours from Monday to Friday inclusive and who commences work on such days at or after 6am and before 10am otherwise than as part of a shift system'. That is, 'day worker' is a status that an employee has under the Award by reason of the hours of work the person is employed to work. A 'shift worker' is simply a person who is not a 'day worker'. In order to change from being a day worker to being a shift worker, the Award would have to provide some mechanism to permit the change to occur without the consent of the employee. 15. Secondly, the ordinary and plain meaning of the words used in clause 4(iii) does not support the conclusion that the clause provides a capacity for an employer to unilaterally change the status of an individual employee. The clause provides only that 'rosters providing for shifts' shall not be introduced into a hospital or health institution or section thereof until discussions have been undertaken with the HSU. That is, the clause does no more than address the introduction of generic rosters which, in a particular institution or section of an institution, provide for shift work and for shift workers introduced at the institution. The discussions are, presumably, to be directed at whether shift work is safe and appropriate for the institution and the nature of the work undertaken. 16. The provision does not address the manner in which an individual employee may be rostered if he or she is a day worker. The ordinary hours that a day worker may be required to work are set by clause 3(ii) and that shift workers may be required to work are set out in clause 3(iii). Clause 4(ii) deals with the manner in which an employee is to be notified of his or her particular rostered hours in a roster period as well as changes to rostered hours. Clause 4(iii) deals with a different matter, that is, the implementation of rosters providing for shift work at all in a particular institution. 17. Thirdly, the change of the status of an employee from being a day worker to being a shift workers [sic] has the potential [for] substantial and disruptive effects upon the personal, family, social and work lives of the employees concerned as well as their health and welfare. A shift worker can be required to work shifts at any time of day or night and on any day of the week in a manner that would require individual employees to drastically alter the family, social and other arrangements. The disruption caused by a change to being a shift worker is amply demonstrated by the evidence of the individual employees in this matter. 18. If the Award was intended to permit an employer to unilaterally change the conditions of employment of an individual employee in such a radical and significant manner, it would be expected that the Award would contain the clearest possible words. Clause 4(iii) does not contain any clear words conferring a power upon the employer to unilaterally change the working arrangements of individual employees. Indeed, the approach of NSW Health Pathology appears to be that the power to alter the status of employees to being a shift worker is to be implied into the Award from clause 4(iii). A power [of] such significance would not be implied. 19. Fourthly, clause 4(iii) requires only discussions 'with the Union by the employer' in relation to the introduction of 'rosters providing for shift work'. If the clause had been intended to permit a change to the status of an individual employee to being a shift worker thereby disrupting the employee's personal and family life, the clause would have provided for notice and consultation with the individual employee. Clause 4(iii) contains no requirement for any notice to be given to the employee that they are to be required, without their consent, to undertake shift work or any requirement for consultation with the individual employees affected. 20. Presumably, on the case advanced by NSW Health Pathology, a day worker could be changed to being a shift worker simply by the display of a roster two weeks prior to the commencing date for the roster period or even by the giving 24 hours notice of a roster change in accordance with clause 4(ii). Had clause 4(iii) been intended to permit an employer to require a day worker to undertake shift work, the clause would have provided for protections with respect to notice to permit the employee to adjust his or her personal arrangements and consultation. The Award would not be interpreted as permitting an employer to require a day worker to commence shift work with 24 hours notice. 21. Other provisions of the Award provide for notice and discussions if there are to be changes to the working arrangements of individual employees. For example: (a) Clause 4(ii) requires two weeks notice of any rostered hours of work subject to alternation to cover absences or in an emergency with at least 24 hours notice. (b) Clause 10(v) required consultation with affected employees in relation to the implementation of on-call rostering arrangements. (c) Clause 13 requires discussion with affected employees and the local branch of the Union prior to any change to the accustomed place of work and at least one calendar month notice. (d) Clause 16(iii) requires three months notice be given to an employee of a requirement for enter upon annual leave. (e) Clause 41(E)(i)(b) requires discussion with an employee on adoption, maternity or parental leave where a decision has been made to introduce significant change at the workplace. 22. The fact that clause 4(iii) make no provision for notice or discussion with affected employees makes plain that the provision was not intended to facilitate changes to the working arrangements of individual employees. 23. Fifthly, the history of the award provisions support the interpretation proposed by the HSU. It appears that the first occasion a provision for shift work appeared in the Award was in the Hospital Employees Conditions of Employment (State) Award 1982 which contained clause 5(ii) as follows: (ii) Rosters providing for shift work shall not be introduced into any hospital or section thereof, until such time as the proposals relating thereto are conveyed to the Commission for its approval and the opportunity has been given to the Association to discuss the matter with the Commission and the hospital concerned. 24. The 'Commission', in that context, was defined to mean the Health Commission of New South Wales. From 1984, the equivalent provisions were amended to require consultation with the Health Administration Corporation. 25. The fact that the provision, historically, required consultation with the Health Commission or Health Administration Corporation strongly supports the conclusion that the clause is dealing with institutional change and not change to the status of individual employees. It would make no sense for there to be consultation with central bodies such as the Health Commission or Health Administration Corporation about a change to the rostering status of an individual employee at one hospital." (Footnotes omitted, emphasis in original)

The case for NSW Health Pathology

NSW Health Pathology read: 1. an affidavit by Ingrida Solomons sworn on 19 October 2019; and 2. an affidavit by Siobhan Cunliffe also sworn on 19 October 2019.

Ingrida Solomons

Ms Solomons is the Operations Manager, NSW Health Pathology St George/Sutherland, of the St George Hospital, NSW Health Pathology - East. She was not required for cross-examination.
In large part, Ms Solomons' affidavit went to the necessity for and merits of introducing the Proposed Roster. As this is not in dispute, and is of little direct relevance to the questions for determination in these proceedings, I will not traverse that evidence.
Ms Solomons also deposed as to the consultation which occurred with staff at the Laboratory regarding the Proposed Roster. Again, it is not necessary to detail that evidence.
Ms Solomons' affidavit included the following evidence: "37. Where an employee's personal circumstances, such as his or her health, or family or carer responsibility, inhibit the employee's ability to work certain days, shifts, or hours, the employee is able to raise those concerns with their manager and, if appropriate, enter into a Temporary Individual Roster Arrangements (TIRA). This process is managed through human resources." [sic]

Siobhan Cunliffe

Ms Cunliffe is employed by NSW Health Pathology as Human Resources Manager, NSW Health Pathology - East. Ms Cunliffe was cross-examined.
Ms Cunliffe testified as to the reasons it was considered necessary by NSW Health Pathology to introduce the Proposed Roster. Her evidence also included advice she provided to the Laboratory Manager, Sudha Pillai, to the effect that the Award allowed for the reclassification of employees' positions to be shift positions. She deposed as to some of the consultation that took place between NSW Health Pathology, the relevant employees and the HSU regarding the proposed roster.
In relation to each of the Affected Employees, Ms Cunliffe gave the following evidence: 1. Adib Bishay's employment contract does not state that he can only be employed as a day worker. From 1 August 2017 to 31 July 2018, Mr Bishay worked every second weekend on either a Saturday or Sunday and was rostered off on the following Monday. Over the same period he worked 18 Saturdays and 20 Sundays. 2. Faye Hoang's employment contract does not state that she can only be employed as a day worker. From 1 August 2017 to 31 July 2018, Ms Hoang was on call on 74 occasions from 5.00pm to 6.00 or 7.00am, Monday to Sunday. Since 1 August 2017, Ms Hoang has worked 11 Saturdays and 1 Sunday. 3. Toula Anastosopolous' employment contract does not state that she can only be employed as a day worker. From 1 August 2017 to 31 July 2018, Ms Anastosopolous worked 11 Saturdays and 14 Sundays. Around April 2018, Ms Anastosopolous raised issues involving her daughter. Ms Anastosopolous was already on a Temporary Individual Roster Arrangement ("TIRA"), which was approved to enable her to care for her mother. A new application for a TIRA was submitted by Ms Anastosopolous, under which she would only be rostered on Mondays and Tuesdays, which was approved and will apply until 30 June 2019. 4. Tina Vaccaro's employment contract does not state that she can only be employed as a day worker. On 1 June 2016, Ms Vaccaro secured a second role as a permanent part-time Technical Officer for 6 hours per week in the Microbiology Department at St George Hospital. From 1 August 2017, Ms Vaccaro worked 43 Saturdays and 45 Sundays, was on call on 37 occasions and was called in to the workplace on 9 occasions between the hours of 1.00 am and 4.00 am. From 29 May 2015 to 28 June 2016, Ms Vaccaro worked 23 Saturdays and 26 Sundays in her position as a technical officer in the Haematology Department at St George Hospital. A TIRA for Ms Vaccaro has been approved until 30 June 2019, under which she will be rostered only Monday to Friday, with no evening work. 5. From 1 August 2017, Mr Berris worked one Saturday and 2 Sundays.
In relation to each employee Ms Cunliffe annexed to her affidavit what she described as "rosters" for each employee. A closer examination of the documents shows them to be timesheet reports, which Ms Cunliffe confirmed in cross-examination as being print-outs of the records kept by NSW Health Pathology of the hours that each employee was recorded as having worked.
As the Human Resources manager, it is Ms Cunliffe's invariable practice to consider requests for flexibility, such as through a TIRA, on a case by case basis after meeting the relevant employee and talking to them about their particular circumstances. Whenever possible, so long as there is a genuine basis for the request and operational needs will be met, it is her practice to approve the request.
Ms Cunliffe annexed to her affidavit a Statement and Recommendation made by Boland JA of the Commission on 8 December 2014 in matter number IRC 839 of 2014 ("Boland Recommendation").

Submissions

NSW Health Pathology relied on written submissions. They included, in part, the following contentions: "E. PROPER INTERPRETATION OF THE AWARD 34. In considering the relevant rostering provisions of the Award, consideration must be given to the context in which the provisions appear. 35. Importantly, the Award does not provide for the imposition of a 'status' or a designation of an employee as a 'day worker' or a 'shift worker'. An employee is not engaged, on some kind of a permanent basis, as either a 'day worker' or a 'shift worker'. So much is clear from the reading of the Award. Further, no such designation or 'status' is derived from the letters of offer issued to the employees… 36. Rather, as stated above, the Award operates such that an employer: (a) sets a roster in accordance with clause 4; (b) ensures that the rostered hours of work comply with the 'Hours' clause (being clause 3); and (c) pays the employee in accordance with the prescribed rates of pay, and any penalties that may apply, including any penalties that apply for shift work pursuant to clause 11. 37. The alternate position advanced by the HSU must be rejected for the reasons set out below. 38. First, the references in the AS [sic - Applicant's Submissions] to HSU members being 'employed as day workers' (at AS [1]) and having the permanent 'status' of a day worker (at AS [13] and [27]) is misconceived. As set out above, it is clear that the question of whether an employee is a 'day worker' or 'shift worker' for the purposes of the Award is determined by the hours the employee works (i.e. the employee's roster of hours). 39. The effect of the interpretation of the Award advanced by the HSU is that a 'day worker' is only permitted to be rostered on the hours set out in the definition. Such an interpretation must be rejected on a plain reading of the provisions. Such a limitation is not found in the rostering clause, being clause 4, nor the hours clause, being clause 3. 40. Notably, the construction of the 'day worker' definition pressed by the HSU would result in the employees for whom the HSU has commenced this dispute, themselves not satisfying the definition of 'day worker'. This is because: (a) Adib Bishay worked [every] second weekend…; (b) Fay Hoang worked a number of weekends and was on call 74 times in a 12 month period…; (c) Toula Anastopoulos worked a number of weekends…; (d) Tina Vaccaro worked a significant number of weekends and was on call 37 times…; and (e) Peter Berris worked a small number of weekends…. … 42. The submission (at AS [14]) that the Award would have to provide some mechanism to permit the change from 'day worker' to 'shift worker' to occur misses the point. There is nothing in the Award which prevents the employer from so altering the employee's roster, subject of course to: (a) satisfying the rostering requirements set out in clause 4; (b) satisfying the hours requirements set out in clause 3; and (c) discussing the proposal to implement shift work with the HSU in accordance with clause 4(iii). 43. Indeed, clause 4(iii) expressly provides for such change to occur. 44. Second, the submission (at AS [15]) that clause 4(iii) of the Award is simply intended to require discussion between the employer and the HSU with respect to whether shift work is 'safe and appropriate' finds no support in the language of the clause. 45. On HSU's submission (see AS [15], [21]-[25]), something ought to be made of the fact that clause 4(iii) requires discussion between the employer and the HSU, but not between the employer and the employees. … 46. The fact that some provisions of the Award require consultation between the employer and the HSU, whilst other require [consultation] between the employer, the HSU and the employees is a result of numerous permutations of the Award and its lengthy and complex industrial history. To contemplate what the substance of any such consultation or discussion is intended to be - and then to apply that speculative intention to the proper interpretation of the Award is an impermissible exercise which [finds] no support in the authorities cited above. 47. Third, should the HSU's submission be accepted, clause 4(iii) would have no work to do. The implementation of shift work rosters (after discussing the matter with the HSU) could not in fact be introduced if the individual employees did not consent. 48. If all employees refused to work shift work and insisted on working day work, NSW Health Pathology could not 'introduce' a shift work roster as contemplated by clause 4(iii). 49. To accept the construction advanced by the HSU would be to read an additional condition into clause 4(iii) which is simply not there. 50. Fourth, whilst it can readily be accepted that a change (and indeed any change) to a roster may be disruptive to a particular employee, such disruption cannot result in words being read into the Award which are simply not there. Certain mechanisms are contained in the Award to ameliorate the disruption, including a process of discussing the proposed change with the HSU before any such rosters are introduced, and providing at least two weeks advance notice of the roster. 51. Additionally, as noted above, the Respondent has in place a process whereby an employee can apply to enter into a Temporary Individual Roster Arrangements (TIRA), such that their personal needs and out of work responsibilities can be considered and managed. 52. It should also be remembered that with respect to individual employees' circumstances, the Respondent of course has numerous obligations pursuant to anti-discrimination legislation, and work health and safety legislation. 53. Lastly, the interpretation advanced by the Respondent is supported by the recommendation made by Boland J in a separate dispute concerning the Award that was before this Commission in 2014…, which provides that: Whilst the Health Employees Conditions of Employment (State) Award, unlike the Hospital Scientists (State) Award, does not state that employees may be engaged on shift work, I think by implication the Award allows the employer to introduce a shift roster and require employees to work according to that roster. (emphasis added) 54. Whilst the statement and recommendations issued by Boland J are not binding on this Commission, they are however persuasive and lend support to the position advanced by the Respondent." (Emphasis in original)

Legal principles

The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act.
The approach to the construction of industrial instruments is well-settled, and was not in dispute before me.
In State Transit Authority (NSW) v Australian Rail, Tram and Bus Industry Union (NSW Branch, Bus and Tram Division) [2014] NSWIRComm 41; 247 IR 129, the Full Bench stated as follows: "[26] This appeal falls mainly to be determined by the application of principles governing the interpretation of awards. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, Walton J, President gave detailed consideration to the principles by reference to relevant authorities including the latest High Court authorities. [27] His Honour was able to distil from the authorities the following statement of principles at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). [28] His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. [29] His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: 'The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.' ... True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. [30] Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. [31] Walton J completed his examination of the relevant authorities by stating the following conclusions: [142] Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. [143] The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided... such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). [144] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language.' We adopt his Honour's analysis and the principles and conclusions he draws from the authorities."
On the implication of terms into awards, in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 Finkelstein J stated as follows: "12 This immediately raises the question whether it is permissible to imply a provision into a certified agreement. … … 15 The prevailing view seems to be that the rules applicable to the construction of contracts should be applied to both awards and certified agreements. The cases do not explain why this is so in the case of an award: see by way of example Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FCR 444; Hawkins v Commonwealth Bank of Australia (1996) 66 IR 322; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175." After referring inter alia to the English decision of Ali v Christian Salvesen Food Services Ltd [1997] 1 All ER 721 and Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 his Honour went on to say: "18 These cases suggest that the general approach is to apply the principles of contract construction, but with a predisposition against the implication of a term. For example, it was accepted in Ali v Christian Salvesen Food Services that there was a gap in the agreement which produced unfairness. However, this was not sufficient to convince the court that the gap should be filled. As a collective agreement is usually a carefully negotiated compromise between parties who have equal bargaining power, the tendency is to assume that the omission is intentional. … 25 If it be necessary to imply a term, it is justified by the principles established in BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266, 283. Moreover, as Deane J noted, the BP Refinery (Westernport) Pty Limited case was concerned with whether a term should be implied in a formal contract 'which was complete upon its face'. Sometimes a more flexible test is called for: Hospital Products Limited v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 121; Hawkins v Clayton (1988) 164 CLR 539, 571. See also Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, 422-423 (per Brennan CJ, Dawson and Toohey JJ). On the basis of these cases, a term may be implied if it is necessary for the reasonable or effective operation of a contract in the circumstances of the case. In my opinion, that test is satisfied in this case."
In Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 at [17] and [56], Backman J relied on AFMEPKIU v Skilled Engineering to import additional words into the Operational Ambulance Officers (State) Award 2010.

Proper construction of the Award

It will be apparent that the determination of this dispute centres on the construction of cl 4(iii) of the Award. NSW Health Pathology submitted that it is to be implied that once NSW Health Pathology has discussed any new shift roster with the HSU, the Award not only allows NSW Health Pathology to introduce that roster, but to compel existing employees to work according to it. This is said to be the case regardless of whether the employees at that time are "day workers" or "shift workers" as defined in cl 2 of the Award.
Connected to this question is the significance of the distinction between "day workers" and "shift workers".
NSW Health Pathology contends that an employee is not appointed in a substantive, ongoing or permanent way as either a "day worker" or a "shift worker". Rather, the relevant designation will attach to an employee depending on the hours they are required to work at a point in time, and is subject to change through NSW Health Pathology invoking its asserted rights under cl 4(iii) (that is, to compel employees to work according to a new roster).
The Award clearly and expressly draws a distinction between "day workers" and "shift workers". That distinction determines the hours during which the employee can be rostered to work (cl 3(ii), (iii) and (v)), penalty rates payable for shift work and weekend work (cl 11), entitlements for employees rostered off duty on a public holiday (cl 15(1)(c)) and payments an employee is entitled to receive when on annual leave (cl 16(iv)). It is a substantive distinction.
The differentiation between day workers and shift workers in the Award argues against a unilateral right to change that status, in the manner for which NSW Health Pathology contends. However, it is not determinative of the issue.
It is necessary to look at the language of cl 4(iii) itself. There was disagreement between the parties as to whether it is concerned with the introduction of shift work in an organisational sense (as contended by the HSU), or with changes to existing, actual shift rosters (as contended by NSW Health Pathology).
The construction advanced by the HSU is better conveyed by the phrase "[r]osters providing for shift work shall not be introduced" appearing in cl 4(ii). Changes to shift work rosters which have already been introduced are dealt with in cl 4(ii) of the Award.
The HSU's construction is also consistent with the history of the provision outlined in Mr Edghill's statement as follows: "25. I have attempted to track the history of these provisions in the Award by reviewing the predecessor awards and variations as found in the New South Wales Industrial Gazette. 26. On 12 February 1979, an award titled the Hospital Employees Conditions of Employment (State) Award was made (hereafter, the '1979 Award'). This award was published in the N.S.W. Industrial Gazette at Vol. 217, April-June, Part 2, from page 1518. … 28. The 1979 Award included the same definitions (at clause 3) of 'Day Worker' and 'Shift Worker' as found in the current Health Employees Conditions of Employment (State) Award. The award also included clauses titled 'Hours' (at clause 4) and 'Roster of Hours' (at clause 5) but these clauses do not deal with requiring employees to move from Day Work to Shift Work. 29. On 9 September 1982, an award titled the Hospital Employees Conditions of Employment (State) Award was made (the '1982 Award'). This award was published in the N.S.W. Industrial Gazette, Vol. 231, 1983, Parts 1-6, from page 1048. … 30. The 1982 Award included the same definitions of Day Worker and Shift Worker (at clause 3). 31. The 1982 Award included at clause 5 - Roster of Hours: (ii) Rosters providing for shift work shall not be introduced into any hospital or section thereof, until such time as the proposals relating thereto are conveyed to the commission for its approval and the opportunity has been given to the association to discuss the matter with the commission and the hospital concerned. 32. The definitions at clause 3 of the 1982 Award provided that 'Commission' means the Health Commission of New South Wales. 33. This appears to be the first time that a clause dealing with the introduction of shift work appears in the award. 34. On 26 November 1984, the Hospital Employees Conditions of Employment (State) Award was varied (the '1984 Variation'). This variation was published in the N.S.W. Industrial Gazette, Vol. 239, 1985, Parts 7-12, from page 927. 35. The 1984 Variation deleted the existing clause 5 - Roster of Hours, and inserted a new clause 5 - Roster of Hours. The inserted clause included: (ii) Rosters providing for shift work shall not be introduced into any hospital or section thereof, until such time as the proposals relating thereto are conveyed to the Corporation for its approval and the opportunity has been given to the Association to discuss the matter with the Corporation and the hospital concerned. 36. On 12 December 1990, an award titled the Hospital Employees Conditions of Employment (State) Award was made (the '1990 Award'). This variation was published in the N.S.W. Industrial Gazette, Vol.271, 1992, from page 397. 37. The 1990 Award included the same definitions of Day Worker and Shift Worker (at clause 3). 38. The 1990 Award included at clause 5 - Roster of Hours: (ii) Rosters providing for shift work shall not be introduced into any hospital or section thereof until such time as the proposals relating thereto are conveyed to the Association to discuss the matter with the Corporation and the hospital concerned. 39. The definitions at clause 3 of the 1990 Award provided that 'Corporation' means the health Administration Corporation of New South Wales. 40. On 6 November 1998, the Health Employees Conditions of Employment (State) Award was made. This award was published in the N.S.W. Industrial Gazette at Vol.271, 1992, from page 397. This award replaced the Hospital Employees Conditions of Employment (State) Award. 41. On 16 December 2005, a new Health Employees Conditions of Employment (State) Award was made (the '2005 Award'). This award was published in the N.S.W. Industrial Gazette at Vol.357, 2006, from page 424. 42. The 2005 Award included the same definitions of Day Worker and Shift Worker (at clause 2). 43. The 2005 Award included at clause 4 - Roster of Hours: (iii) Rosters providing for shift work shall not be introduced into any hospital or section thereof until such time as the proposals are discussed with the Union by the Health Service." (Emphasis in original)
This evidence supports the position outlined at [23]-[25] of the HSU's submissions, reproduced at [33] above. I accept those submissions.
NSW Health Pathology relied heavily on what it contended as being the interaction between cll 4(ii) and 4(iii) of the Award. Ms Bulut summarised the position as follows (Tcpt p 57 (1-14): "So what the respondent's case is is quite simple. The award provides for the introduction of a roster, that we say implicit in that, having regard to the entirety of the award, so understanding those words in their context, is that it can require the employees to work to that roster just like cl. Implicit in cl is that employees will work to the roster as notified upon the two weeks' notice. That is, there will be roster provided for and the employees will work to the roster as notified to them in accordance with that provision. So that we say to make the award workable to give it its purpose and to understand these words in their context, it must be implicit that if there is an introduction of a shift work roster expressly dealt with in the award following discussions with the union, then it must be the case that the employees are required to work. And which employees? We say all employees…"
I do not agree that cl 4(ii) of the Award extends to allow an employee to be directed to move from day work to shift work on two weeks' notice. The provision deals with the display of rosters of the ordinary hours for each employee. Those ordinary hours will be subject to the limitations in cl 3, which will depend on whether the employee is a day worker or shift worker. As a rule, rosters must be displayed two weeks in advance. On this basis NSW Health Pathology is able to change an employee's roster on two weeks' notice. However, the effect must be to allow for changes within the parameters of cl 3, which will be determined by whether the employee is a day worker or a shift worker.
NSW Health Pathology submits that if the HSU's construction of the Award is accepted employees could effectively veto a roster by refusing to work to it, leaving cl 4(iii) with "no work to do". While this submission is made to advance the interpretation pressed by NSW Health Pathology, it rests in part on the premise that such an interpretation is already adopted. That is, rather than simply being concerned with the introduction of shift rosters into a hospital or health institution, the submission extends cl 4(iii) to anticipate the implementation and staffing of those rosters.
If cl 4(iii) is seen as being directed to the introduction of shift rosters at an organisational level, its purpose would be to facilitate discussion as to the merits, appropriateness or desirability of doing so, and ultimately how any shift rosters might be introduced. It is consistent with such a purpose that the clause would call for discussions only (as opposed to consensus), and at the union (as opposed to workplace) level. As already stated, there is no dispute before the Commission that NSW Health Pathology is able to introduce the Proposed Roster into the Laboratory. The conditions in cl 4(iii) have been satisfied; the clause has done the "work it has to do".
How NSW Health Pathology staffs the roster is a different question. The fact that insufficient existing employees do not agree to work the Proposed Roster does not mean that it cannot be implemented, but that NSW Health Pathology would have to consider the costs and benefits of doing so in the face of opposition, including the impacts on the employment of those employees unable or unwilling to work to that roster.
In this regard, the evidence discloses that not all day workers in the Haematology department have opposed the Proposed Roster.
Each of Ms Anastosopolous, Mr Bishay, Ms Hoang and Ms Vaccaro gave uncontroverted evidence of the impact that being required to work according to the Proposed Roster would have on their personal lives, to the extent that it would not be possible for them to do so. Even absent such evidence it could reasonably be assumed that a requirement to move from day work to a 24/7 rotating roster would be disruptive to the lives of most employees.
In essence, the proposition which NSW Health Pathology advances is that the Award enables it to visit such disruption on employees, placing them in a situation where they would have to accept any roster proposed by NSW Health Pathology or potentially relinquish their employment. This would be subject only to consultation with, but not the agreement of, the HSU, and NSW Health Pathology providing relevant employees with two weeks' notice of the change. No consultation with the employees would be required at all. Recognising that not all employees may be members of the HSU, the construction advanced by NSW Health Pathology would effectively deny those employees who are not members of the HSU from having any say, direct or indirect, in the introduction of fundamental changes to their workplace and, potentially, their lives.
It would be incongruous if the Award permitted the unilateral change to an employee's status under the Award without consultation with them, where such consultation is required for far less material changes such as those identified by the HSU at [21] of its outline of submissions, reproduced at [33] above.
I also agree with submissions made by the HSU that a power to visit substantial changes on a person's life would require clear language in the Award, rather than being implied. Put another way, I am not convinced by the submission made by NSW Health Pathology to the effect that the absence of any limitation on the ability of it to require employees to change from day worker to shift worker provides a sufficient basis on which to find by implication that the power exists. One might ask rhetorically where such an approach, if adopted as a principle of award interpretation, may lead.
I do not accept NSW Health Pathology's submission that the HSU's construction "result[s] in words being read into the Award". To the contrary, the HSU's position is to give effect to cl 4(iii), by allowing for the introduction of shift rosters following discussion between NSW Health Pathology and the HSU. It is the extended operation of the Award, which as outlined at [51] above NSW Health Pathology submits ought to be implied, that has the effect of adding terms to the Award.
NSW Health Pathology relies on employees being able to apply for a TIRA as potentially mitigating any adverse impacts of the introduction of the Proposed Roster. While Ms Cunliffe gave evidence, which I accept, that she is generally sympathetic towards applicants for a TIRA, she may not always be the decision maker. Further, Ms Cunliffe also gave evidence that the availability of a TIRA is entirely at the discretion of an employee's manager, their director and human resources; there are no policies or guidelines regulating TIRAs; and, there is no formal process by which an employee can challenge a decision not to grant them a TIRA (Tcpt p 13 (4-32)).
A TIRA would seem to offer little ongoing certainty for an employee. This is to some extent self-apparent from the name "Temporary Individual Roster Arrangement". In this regard it is worth observing that the TIRAs for Ms Anastosopolous and Ms Vaccaro, despite having been approved at some time after Ms Cunliffe swore her affidavit on 19 October 2019, expire on 30 June 2019. Presumably, they will then have to apply for another TIRA.
Over and above these practical considerations, however, the fact that a discretionary process exists outside the Award to ameliorate the impact on employees of shift work is of little assistance in determining the proper construction to be given to the Award itself.
Finally, it is necessary to address the Boland Recommendation. I can do so in reasonably short order, recognising that the Boland Recommendation is not binding on the Commission.
The Boland Recommendation was made in the course of his Honour attempting to resolve a dispute notified by the HSU against the Ministry of Health regarding the implementation of a shift roster at South Eastern Area Laboratory Services. Having compared the relevant awards his Honour stated: "[10] Whilst the Health Employees Conditions of Employment (State) Award, unlike the Hospital Scientists (State) Award, does not state that employees may be engaged on shift work, I think by implication the Award allows the employer to introduce a shift roster and require employees to work according to that roster."
The first of his Honour's "findings" - that the Award allows the employer to introduce a shift roster - seems to be addressing the absence in the Award of a provision similar to that in the Hospital Scientists (State) Award which expressly allowed for employees to be engaged on shift work. It is in any event uncontroversial.
NSW Health Pathology submits that the last words of [10] in the Boland Recommendation - that the employer can "require employees to work according to that roster" - should be read as meaning that it can compel employees to work to the Proposed Roster irrespective of the status of the employees at the time. The Boland Recommendation is not that clear, in my opinion. Rather, its primary focus is the Hospital Scientists (State) Award, which provided at cl 5(iii) that "[as] far as practicable, no employee shall be obliged to work shift work against his or her wishes". This language clearly allows for an employee to be compelled to work shift work, if it is not practicable for them to work otherwise. It is against that benchmark that his Honour made recommendations. There is no such similar condition in the Award.
In conclusion, having considered the evidence and submissions, I prefer the construction of cl 4(iii) of the Award advanced by the HSU.
In addition, for the reasons outlined above and having regard to AFMEPKIU v Skilled Engineering and Ambulance Service of NSW v Health Services Union East, I am not satisfied that the terms sought to be implied into the Award by NSW Health Pathology are necessary for the reasonable and effective operation of the Award. The Award operates coherently and effectively if it is construed in the manner pressed by the HSU.
Apart from cl 4(iii) of the Award, NSW Health Pathology has not advanced any basis on which it says it can compel employees to work in accordance with the Proposed Roster, against their wishes.

Are the Affected Employees "day workers"?

NSW Health Pathology submitted that as a matter of fact the Affected Employees, with the possible exception of Mr Berris, are not employed as day workers. It relies on the evidence of Ms Cunliffe as to the hours worked by the Affected Employees on weekends.
All of the Affected Employees gave evidence that they were employed as day workers. In addition: 1. Ms Anastosopolous stated that she occasionally worked on a Saturday or Sunday morning when the department was short-staffed; 2. Mr Berris stated that any work performed on weekends or public holidays was paid as overtime; 3. Mr Bishay stated that he receives time off in lieu of working overtime on weekends, having previously been paid overtime; 4. Ms Hoang stated that she was paid overtime for work performed on Saturdays; and 5. Ms Vaccaro stated that between 2016 and 2018 she worked in the Microbiology department, working days, nights and weekends. This was regarded as separate to her employment in the Haematology department. (This appears to have been a "multiple assignment" under cl 3A of the Award, although this was not made entirely clear).
As stated above, annexed to Ms Cunliffe's affidavit were timesheet reports for each of the Affected Employees. The reports do not record the Affected Employees as having worked overtime, or certainly not to the extent to which they claim. While it was not put quite this squarely, I comprehend the position of NSW Health Pathology to be that as the timesheet reports do not (on the whole) reflect overtime as having been worked, all hours worked by the Affected Employees must have been "ordinary time". As that ordinary time included weekends, the Affected Employees could not by definition be day workers.
The position taken by NSW Health Pathology presumes the accuracy of the timesheet reports. On the evidence, this is not a presumption which I consider ought to be made. I say this for two reasons. Firstly, Ms Cunliffe was not the author of the reports but relied on them to be created by others from the NSW Health Pathology human resources file (Tcpt p 14 (11-22)). She did not say in her evidence that the reports accurately reflected the ordinary and overtime hours worked by the Affected Employees, and I would question from her evidence whether she could have done so.
Secondly, Ms Cunliffe's oral testimony is inconsistent with the timesheet reports accurately reflecting the ordinary and overtime hours worked by the Affected Employees. During cross-examination there was the following exchange between Mr Gibian and Ms Cunliffe (Tcpt p 16 (27-30)): "Q. And so far as you understand it, for example, Mr Bishay worked some Saturday or Sunday shifts, that was on the basis that he would have time in lieu and have time off during the week in lieu of that period of work? A. Yes, that's correct."
An arrangement under which Mr Bishay received "time in lieu" of working on a weekend is inconsistent with those hours being "ordinary time". However, according to the timesheet reports produced by Ms Cunliffe for Mr Bishay for the period 1 August 2017 to 31 July 2018 there was only one occasion on which he is recorded as having worked overtime on a weekend.
It follows that while I have considered the timesheet reports attached to Ms Cunliffe's affidavit, I do not place great weight on them.
The arrangements summarised at [82] above were not challenged through cross-examination. All of them are consistent with the Affected Employees being day workers as defined in cl 2 of the Award. There is no evidence that they have worked in the Haematology department "as part of a shift system".
I note further the following evidence: 1. Ms Cunliffe deposed to a conversation which she had with Sudha Pillai in or about March 2017 in which she advised Mr Pillai that it was possible under the Award to "reclassify positions to be shift work positions"; 2. on 18 May 2018 Ms Anastosopolous, Mr Berris and Ms Hoang each received a letter from NSW Health Pathology in relevantly identical terms. The terms of that letter, reproduced at [20] above, clearly indicate that at the time the employees were not regarded as shift workers and that their status would have to change; and 3. each of the Affected Employees had their status in Stafflink changed from non-shift to shift status. For all but Ms Anastosopolous (for whom this occurred on 1 February 2018), the change was effected on 4 June 2018.
During the hearing there was the following exchange between Mr Gibian and Ms Cunliffe (Tcpt pp 11 (32) - 12 (20)): "Q. And then the second part on the second page of the letter indicates that, 'Consequently, as of 1 July 2018, we will start to roster all staff onto a 24/7 roster, rotating all staff through all shifts and all days'; do you see that? A. Yes. Q. And then it indicates that every staff member will have their status in Stafflink changed from non-shift worker to shift worker; do you see that? A. Yes. Q. So Stafflink is a computer system, I take it? A. Yes, database. Q. I'm sorry? A. It's a database. Q. A database, which records staffing information in relation to individual employees? A. Yes. Q. Commencement days, classifications, grades and the like, any changes to their employment status and the like. And as part of that system, it records whether the employee is either a shift worker or a non-shift worker? A. That's correct. Q. And I take it that is relevant in ascertaining what hours that employee can be rostered? A. Yes, it also impacts their shift penalties, because it's all automated. Q. So there are various consequences of being classified either as a shift worker or a non-shift worker. One is it affects the rostering, the hours that they can be rostered, correct? A. Yes. Q. The other is that it may have effects upon the loadings that are payable for certain periods of work, correct? And what NSW Health Pathology was proposing to do or indicating it was going to do in May 2018 was to change the status of the employees and change the consequent effect on their rostering and penalties and the like from non-shift to shift worker? A. Correct."
The evidence demonstrates that at all relevant times the Affected Employees were considered by NSW Health Pathology to be other than shift workers, hence the need for their status to be changed. The only other status that they could have under the terms of the Award was day worker.
Indeed, Ms Bulut stated at the hearing (Tcpt p 59 (23-25)): "The respondent's position is that these employees were, that is, as a matter of fact, engaged as day workers for a prolonged period and we accept that they had an expectation that that would continue. I don't cavil with that."

Findings

I find that the Health Employees' Conditions of Employment (State) Award 2018 does not entitle NSW Health Pathology to compel employees who are "day workers" as defined under that Award to commence working to a 24/7 rotating shift work roster without their agreement.
I find that each of Toula Anastosopolous, Peter Berris, Adib Bishay, Vu Phi (Faye) Hoang and Tina Vaccaro is properly to be regarded as a day worker for the purposes of the Health Employees' Conditions of Employment (State) Award 2018. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2019

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