Health Services Union NSW v Secretary, NSW Ministry of Health in respect of Justice Health and Forensic Mental Health Network

Background

1. Justice Health provides primary care services to people in custody in 38 Correctional Centres, 7 Police and Courts Cell Complexes, 6 Juvenile Justice Centres and two Transitional Centres. Justice Health cares for over 30,000 patients annually across more than 100 locations across New South Wales. At the time the proceedings were heard there were 15 Metropolitan Dental Clinics and 16 Rural Dental Clinics being serviced by Justice Health. Approximately half of the dental patients on the waiting list are located in rural Correctional Centres.
2. The patients receiving these services have complex health needs. They have higher rates of mental illness, kidney and heart disease, are more likely to have attempted suicide and are generally disadvantaged with respect to their health.
3. The Dentists are responsible for delivering primary care services to these patients in custodial settings state-wide. At the time of the hearing of the matter, there were five "full time equivalent" DOs employed in this vocation, including one Clinical Director Oral Health and four Level 3 DOs. In addition to employing these Dentists, Justice Health engages Visiting Dental Officers (VDOs) from time to time to assist in this work.
4. At least from the time of the commencement of employment of Dr Singh with Justice Health in September 2005, an allowance known as the DORIS allowance was paid in the amount of $10.08 for every hour worked by DO's servicing rural clinics.
5. On 15 August 2018, a letter was sent from Bronwyn Hughes, Director Workforce of Network Health to Mr Gerard Hayes, Secretary, Health Services Union NSW informing him that: 1. it had been identified during testing of a new system known as "HealthRoster" that the DORIS allowance had been incorrectly applied to the DOs engaged by Justice Health; 2. from 1 October 2018, the allowance would no longer be payable as an "as per occurrence basis"; and 3. Justice Health did not intend to seek to recover any incorrectly paid monies to any DOs.
6. A letter informing the Dentists of the removal of the DORIS allowance in similar terms was sent to them dated 20 August 2018.
7. From 1 October 2018, the DO's no longer received the DORIS allowance when they attended rural clinics.
8. The Notifier did not assert in these proceedings that the DOs had an entitlement to the DORIS allowance.

Notifier's evidence

1. The Notifier relied upon the following filed statements with respect to the matter: 1. Statements of Dr Ahmed Raouf dated 18 April 2019 and 18 June 2019; and 2. Statements of Dr Inderpreet Singh dated 3 May 2019 and 14 June 2019.
2. Each of the statements of the Dentists included attachments.
3. Both Dentists were cross-examined by Justice Health during the hearing of the matter.

Dr Singh's evidence

1. Dr Singh commenced employment with Justice Health as a DO Level 3 in September 2005 and has worked continuously in that position and grade since.
2. Dr Singh deposed that the prime reason that he applied for the position was that it was located in Silverwater, which was closer to his home. This was important to him as he and his wife were planning to start a family.
3. In evidence is a copy of the advertisement for the position Dr Singh successfully applied for. Relevantly it provided the following: "The position is required to provide emergency and routine general dental services to inmates in correctional centres throughout NSW. The successful applicant would be required to provide dental services at several centres that would require travel and overnight stays."
4. Dr Singh gave evidence with respect to the interview process which led to him being offered his current position. He deposed that the interview was conducted by Dr Peter Hill who was the Principal Dental Officer and Manager of Oral Health Services at Justice Health at the time. He gave evidence that there were two other male persons present at the interview with one of those persons attending by telephone.
5. What Dr Singh says occurred during the interview is not in contest. There was an exchange between he and Dr Hill to the following effect: Dr Hill: "Once a month you would have to spend a night or two outside of Sydney. Are you okay with that?" Dr Singh: "Yes. So long as a car is available for me to travel as I do not have my own car."
6. Dr Singh also gave evidence that during the interview there was a discussion with Dr Hill with respect to payment of the DORIS allowance. Specifically he recounted a discussion with respect to whether half or the whole of the allowance would be payable when he travelled to Katoomba and Lithgow.
7. Dr Singh was successful in his application and received a letter of offer of employment which he accepted in September 2005.
8. Dr Singh annexed to his statement of 3 May 2019, a copy of a Position Description for his role of DO. Under the heading "POSITION DESCRIPTION" the document provides,"Dental Officers are required to provide emergency and routine general dental services to inmates in dental clinics situated in Correctional Centres throughout New South Wales." The Position Description provides (among other things) that an "Essential Skill and Experience" for the role is a "Current Drivers license." Further it provides that, "Dental Officers are required to conduct country clinic session on a monthly basis."
9. From the time Dr Singh commenced employment the DORIS allowance was paid to him at a rate of $10.08 per hour for each hour of rural work undertaken.
10. The amount of rural travel that Dr Singh was required to undertake has changed over time.
11. From the commencement of his employment in 2005 until 2008, Dr Singh was required to undertake rural travel that required a total of two nights away per four-week roster cycle.
12. This changed in 2008 when Dr Singh was required to travel one week per four-week roster cycle. Indeed, on some occasions he has been required to conduct more than one week's travel within a four-week roster cycle. Dr Singh gave evidence that he was not consulted about the increased requirements to travel from 2008.
13. Dr Singh gave evidence that he was directed by Dr Keith Heap who was then in the position of Principal Dentist/Clinical Director in or about 2010 or 2011 that he should travel to the rural clinics outside of ordinary working hours and that prior to 2016, he was not given an option to be paid for the time spent travelling outside of ordinary hours. Instead he was required to take additional hours as time in lieu. He gave evidence that once his total hours reached 8 was directed to take a day off work. However he states that this practice stopped in 2016.
14. Dr Singh also gave evidence with respect to allowances paid when he travelled. Initially, Dr Singh was paid a lump sum in respect to meals, allowances and accommodation. This changed in early 2012 at which time Dr Singh was no longer able to book his own accommodation. Instead this was done by Justice Health centrally. Further the circumstances under which Dr Singh was able to receive an allowance for meals changed. If breakfast was provided for at the hotel where he stayed he was not eligible for a breakfast allowance. Dr Singh gave evidence that the directive was given that continental breakfasts at hotels were considered sufficient and if provided by the hotel, the breakfast allowance would not be provided. In his reply evidence, Dr Singh stated that staff was notified on 14 May 2019 that they are able to claim breakfast allowance.
15. Dr Singh gave evidence with respect to the hardships he has experienced while travelling rurally for his work at [37] of his statement signed 3 May 2019. These impacts included, for example and in summary: (a) being booked into accommodation which appears unsafe at night when travelling to Wellington and Lithgow; (b) arriving at a hotel in Muswellbrook and being told that the booking had been declined requiring Dr Singh to plead with a hotel owner to allow him to stay as he had nowhere else to go; (c) arriving in Dubbo and driving to Wellington to learn that the dental chair in the clinic was not working. Dr Singh stated that he was then directed to drive back to Dubbo to work in the Juvenile Justice Centre located there. He was then required to travel to Bathurst to work the next day and then required to drive from Bathurst to Parramatta; (d) being booked into accommodation that does not have cooking facilities requiring him to eat out and eat "junk fast food"; (e) in January 2009, experiencing broken sleep at home, Dr Singh was involved in a car crash on the Great Western Highway just before Katoomba. Dr Singh gave evidence that after reporting the incident, he was directed by Ms Pearce to continue on to Mudgee because, "the clinic has been booked" commencing work at around 10:45 am.
16. In his reply evidence, Dr Singh refutes evidence from Justice Health that when there are last minute cancellations, the DO's are asked if they will attend to last minute changes. He states that instead, "Justice Health push Dental Officers to see patients in the next location."
17. At [37] (f), Dr Singh describes the impact travel has on his family in the following terms: "The rural travel also has an immense effect on my wife and children. When I am away, my wife needs to finish work early on many occasions so that she can pick up our children from after school care. As already stated, my wife works as a contract Chiropractor. She only gets paid when seeing patients. By finishing work early and not seeing more patients she earns less money. My younger child who is nine cannot understand why Dad has to leave for these trips and his behaviour at school and at home becomes challenging for the period that I am away. My wife regularly tells me that he become disobedient and defiant when I am away. My wife has also told me that on occasions his teachers have raised his behaviour with her when attends the school."
18. I accept the account given by Dr Singh with respect to the impact the rural travel has on him and his family as set out directly above.
19. Although Dr Singh presented as a truthful witness, at times he came across as being disproportionately aggrieved and agitated by management actions he believed to be adverse to his interests.

Dr Raouf

1. Dr Ahmed Raouf commenced employment as a full-time DO Level 3 for Justice Health in or around November 2014. He remains in this role.
2. Dr Raouf gave evidence that he attended a job interview for the role in around October 2014 where there were four other people present. He stated that he was not asked any questions about his willingness to undertake rural travel during the interview. However he says that he was asked whether he had a full Drivers' License and that he would be required to drive to some centres that are in remote locations. Dr Raouf gave evidence that he was told during the interview that an allowance would be paid for working in remote locations, although the amount of travel and the monetary value of the allowance was not discussed. This evidence was not contested by Justice Health.
3. Dr Raouf gave evidence that when he first commenced his employment, he was regularly undertaking five days of rural travel in every four-week roster cycle. He stated that for a full week of rural travel he would usually travel on Sunday afternoon or Monday morning and stay at the relevant location until Friday before heading back home. He gave evidence that in around January 2015 the amount of rural travel that he was rostered to undertake increased to 10 days (two working weeks) in every four-week roster cycle, without discussion. It was however returned to five days.
4. At [20]-[23] of the statement of Dr Raouf dated 18 April 2009, he sets out the impact rural travel has had on him personally and his family: "[20] The amount of rural travel I am required to undertake has caused a lot of stress for me and my family. [21] My kids' behaviour and mood always change when they learned that I am going away for a week; there behaviour becomes worst and they do not do their homework. When I am away for work, my wife calls me on adaily basis to tell me that the kids are misbehaving and causing her stress. My wife is already diagnosed with anxiety and depression and she needs me to be present to take care of her and the kids' everyday issues like homework and behaviour control. The weeks where I am away are very difficult because I am not there to help her or the kids. [22] Another problem when undertaking rural travel is that I am often booked into bad locations or motels in deserted areas, such as in Wellington where I can feel unsafe to leave the hotel room after dark. [23] Being Muslim, Halal food is another crucial issue I face every time I am required to travel. When I am away, I cannot eat my normal food and it can be difficult to get halal food. This usually means I eat only vegetarian food for the whole week."
5. I accept the evidence of Dr Raouf with respect to the impact the rural travel has on him and his family.
6. Although I have generally found Dr Raouf to be a truthful witness I have determined that he was aware of the requirement to travel up to five days in every four-week roster cycle from the commencement of his employment for the reasons set out below.

Justice Health's evidence

1. Justice Health relied upon: 1. An affidavit of Samantha May Cook, Operations Manager, Primary Care Services and Program, and Acting Service Director, Primary Care, sworn 6 June 2019; and 2. An affidavit of Mr Peter James Stein, Senior Industrial Relations Officer, sworn on 6 June 2019.
2. Both Ms Cook and Mr Stein's affidavits annexed a number of documents admitted into evidence.
3. Both witnesses were also the subject of cross-examination by the Notifier.

Ms Cook's evidence

1. Ms Cook gave evidence with respect to the operations of Justice Health which was not contentious. Additionally, she gave evidence: 1. of the circumstances under which last-minute changes may be made with respect to the roster for the Dentists to attend particular rural clinics. These included lock-ins, equipment failure or multiple service clinics scheduled and not enough officers to organise patient movements. 2. that staff are not directed to do last-minute roster changes in such circumstances as outlined above at (1), rather they are requested. 3. Justice Health sought to accommodate requests for leave and/or requests not to conduct rural travel in determining the appropriate rosters, citing specific examples of this including: 1. a request from Dr Raouf indicating that he would not be able to travel during the period 14 May 2018 to 15 June 2018 due to the holy month of Ramadan, noting that he would be happy to compensate by doing more rural work in the following period; 2. a request from a DO not the subject of the proceedings to work in the Metropolitan area for a particular week as her husband would be working in Melbourne at that time; and 3. requests from Dr Singh to allocate ADOs. 1. staff whom choose to travel to a rural clinic on a Sunday are paid travel time, however there is no requirement for staff to travel outside of work time. 2. there were only 3 occasions in 2015 when Dr Raouf worked more than five days at a rural location in a four-week roster cycle. Further she deposed that Dr Raouf had not been required to stay in Wellington when he worked at the relevant rural clinic since July 2017. Alternative accommodation in Dubbo have been arranged for those occasions when he was required to work in Wellington after he raised the concern with her regarding the cleanliness and safety of the accommodation in September 2017. 3. Dr Raouf was given a list of halal options for the Wellington area after he expresses concerns about the available food options. 4. the current arrangement with respect to staff being able to claim breakfast is that staff may either order breakfast provided at the accommodation where they are staying or claim the breakfast allowance. 5. Dr Singh has claimed and been paid the breakfast allowance for every rural trip he has taken since November 2017. 6. the impact of positions not being backfilled is not that the Dentists are required to see more patients but rather that the waitlist becomes longer. 7. the issues Dr Singh has had with accommodation were resolved by Justice Network and the circumstances surrounding the direction to Dr Singh to work in Bathurst and Lithgow when he discovered the dental chair in Wellington was not operational in May 2018. 8. that when publishing rosters, consideration is given to: 1. the previous months' rural rotations with an intention of fairly and equitably distributing rural travel; and 2. the waitlists and acuity of the patients by location. 1. if rural travel was to be reduced to no more than two days a week for the Dentists this would significantly impact on the service and other DOs. Specifically she gave evidence that this would mean an increase in the frequency in rural sessions for the other DOs engaged by Justice Health or a decrease in the frequency of the dental clinics at the rural locations which would increase patient wait times. 2. it will never be operationally possible to efficiently run a rural clinic session for less than two days due to limited access to patients when in clinic as well as the time that it takes for DOs to travel to and from the rural locations. 3. the first time she was aware of any specific issues relating to family commitments of the Dentists was upon reading their statements in this matter and if these issues have been brought to her attention she would have followed Justice Health's policies with respect to applicable work practices. 4. apart from the issues relating to the accommodation in Wellington the Dentists have not reported any safety concerns to her with respect to their work in rural locations. 5. no other DO has raised any concern with respect to the unreasonableness of the rural travel requirements. 6. Justice Network does its best to manage individual issues with rostering, including if a DO has personal or family needs, but also needs to be fair and equitable to all staff. These needs also need to be balanced with requirement of the oral health needs of patients in all areas of New South Wales.
2. Ms Cook presented as a truthful witness.

Mr Stein

1. Mr Stein gave evidence: 1. that the individual needs of the Dentists are taken into account in rostering where possible. 2. Dr Raouf addressed the selection criteria for his role that specified the need for a current Drivers' License and willingness to travel. He further notes that the application provided for a requirement to travel to rural locations on a rotational basis of one week per calendar month. 3. of the circumstances under which it was discovered that the DORIS allowance had been incorrectly applied to the Dentists when they were travelling rurally. Mr Stein explained that the allowance was intended to apply to assist with attraction and retention of employees in relation to hard to fill positions in rural and remote locations. 4. that to his knowledge, the issues associated with travel complained of by the Dentists as set out above at [32] and [40] have only been raised since the removal of the DORIS allowance. 5. on 7 December 2018, the HSU met with the Dentists to discuss the removal of the DORIS allowance. During this meeting the Dentists advised that they would not guarantee any rural travel after the roster of 18 January 2019. During this meeting, the HSU accepted that it did not have a claim for the DORIS allowance. 6. on 17 January 2019 a new roster was provided to the HSU relating to the Dentists. On 21 January 2019 the HSU advised that the Dentists would not undertake the rural travel as rostered, despite the roster evenly distributing the rural travel between the five DOs. This prompted a notification to the Industrial Relations Commission and a compulsory conference was conducted on 12 February 2019 by Commissioner Constant. That matter was administratively closed. 7. between 8 March and 11 March 2018, Mr Stein and Mr Edghill of the HSU had an exchange which included the following: Edghill: "I note that a roster has now been posted by Justice Health which includes 3 days of rural travel for Dr Singh and 4 days a rural travel for Dr Raouf. Can you please advise whether Justice Health is prepared to guarantee that this is the maximum amount of rural travel that Justice health will seek to require these members to undertake?" Stein: "Due to operational requirements, the Network is unable to guarantee the number of days they may be required to conduct clinics in rural locations. It is however anticipated some rosters will have Dr Singh and Dr Raouf required to spend more than the 3 or 4 days in a rural centre, and other rosters having a lower number of days in a rural location. It is also anticipated some future rosters will have no rural travel required for Dr Singh and/or Dr Raouf. Again, the Network confirms attempts will be made to accommodate the Dental Officer's requests of rural travel with future rosters." 1. on 12 March 2019, Justice Health made notification to the Commission in respect of the current matter. 2. issues relating to the payment of breakfast allowance and/or a requirement to eat the breakfast that is provided at a motel have been addressed by Justice Health in 2017, as have the concerns raised by the Dentists with respect to the quality of accommodation in Wellington and Lithgow.
2. Mr Stein presented as a truthful witness.

Notifier's submissions

1. On 9 May 2019, the Notifier filed an outline of submissions in accordance with directions made by the Commission. Relevantly, the Notifier sought a direction, or in the alternative a recommendation, to the effect that: 1. It is unreasonable for the respondent to direct Doctor Inderpreet Singh and/or Doctor Ahmed Raouf to undertake five days of rural travel to four-week roster cycle; and 2. The respondent shall not direct or otherwise require Doctor Singh and/or Doctor Raouf to undertake more than two days a rural travel per four-week roster cycle.
2. In arguing that the Commission is able to make such orders, the Notifier submitted that the Commission is empowered to make orders "that operate to provide fairness." Reliance was placed upon the decision of New South Wales Local Government, Clerical, Administrative, Energy Airlines and Utility Union v Warringah Council [2015] NSWIRComm 1012, where Commissioner Newall stated, at [53]: "..in my view the Commission is authorised to make an order that the parties to an industrial dispute maintain the status quo ante in relation to, for example, terms and conditions of employment that have operated between them: Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244. The Commission is equally able to make an order that operates to provide fairness: Health Services Union NSW and Central Coast Local Health District re Regrade Policy [2013] NSWIRComm 44, which in this case would hold parties to representations they have made to each other in relation to the subject matter of a dispute. Were I wrong about that, the Commission has in my view power to make orders as it sees appropriate to fulfil the Objects of the Act, in this case particularly the Objects set out in subs.3(a),(g) and (h)."
3. The Notifier further submitted that the Commission has power to make directions and recommendations of the kind it proposed pursuant to s.136 (1)(a).
4. During the course of the hearing, further written submissions where filed in court and oral submissions were delivered before the Commission.
5. In summary, the Notifier argued that the relevant circumstances justifying an order to reduce the amount of travel time include: 1. the amount of rural travel expected of DO's at Justice Health has increased over time; 2. that DO's no longer receive any extra compensation for the performance of rural travel, where previously they did; and 3. that the requirement to perform rural travel for one week in four, or possibly more, creates obvious disadvantages and additional stresses for DO's and their families.
6. In their submissions, the Notifier addressed the circumstances of the Dentists separately. In summary, they note that in the case of Dr Singh, the direction to work in rural clinics one week out of every four in unreasonable, in the following circumstances: 1. Dr Singh's position description nominates as his location, "Western Metropolitan Region" and includes a statement that "Dental Officers are required to conduct a country clinic session on a monthly basis", although the length the clinic is not defined. 2. One of the reasons Dr Singh applied for the position was to decrease the amount of travel he was undertaking at the time in another role. 3. The uncontested evidence that during his initial interview for the position, Dr Singh: 1. was told that "once a month you would have to spend a night or two outside of Sydney"; and 2. was told that he would be paid the full share of the DORIS allowance in respect of his travel. 1. The uncontested evidence that between 2005 to 2008 Dr Singh was required to travel a total of two nights away from home per four-week roster cycle and this increased to five days per four-week roster cycle in 2008 without consultation. 2. The removal of the DORIS allowance in 2018. 3. The impact of the rural travel upon Dr Singh as set out in paragraph 37 of his statement.
7. In the case of Dr Raouf, the Notifier acknowledged his differing factual circumstances to Dr Singh, submitting that the requirement for up to one week out of every four travelling is unreasonable for reasons including the following: 1. Acknowledging that the position description of Dr Raouf includes a statement that "Dental Officers are required to travel to rural locations on a rotational basis of one week per calendar month", the Notifier submitted that the statement is a direction not a part of Dr Raouf's contract which can still be determined an unreasonable direction. 2. Dr Raouf was not asked about his willingness to undertake rural travel during his interview, but gave uncontested evidence that he was told that, "Going to rural areas you will be paid on a daily basis an allowance for breakfast, lunch and dinner, and an incentive per hour on a daily basis." 3. Dr Raouf was paid the DORIS allowance until it was removed in 2018. 4. The stress and disadvantages caused by rural travel as contained in Dr Raouf's statement and set out above.
8. The Notifier contests the veracity of Justice Health's evidence with respect to the impact an order requiring a reduction in travel would have on the operations of Justice Health, arguing that the Dentists should not be made to "bear the brunt" of the Respondent's under-resourcing.

Justice Health's submissions

1. Justice Health filed submissions in the Commission on 7 June 2019 and delivered oral submissions at the hearing of the matter. In their written submission, they argue that: "The Notifier fails to establish any exceptional basis for the Commission to interfere with, or replace the view of the Respondent employer, to alter the requirement that Dental Officers undertake up to five days of rural travel in each four-week roster cycle. The requirement is necessary, fair and reasonable as it is: (a) within the prerogative of the Respondent to allocate, arrange and roster work fairly to all Dental Officers; (b) consistent with the Respondent's statutory obligation to provide health services to all areas across the State equitably and fairly and with due regard to responsible expenditure of public monies; (c) consistent with the employment arrangements accepted by Drs Singh and Raouf and other Dental Officers; (d) consistent with the Respondent's statutory, and Dental Officer's professional, obligations to ensure that oral health services are equitably provided to a highly vulnerable patient population whose health needs are often numerous and more complex than the wider community; and (e) consistent with the requirement to ensure a fair go all round when balancing the paramount needs of patients against personal convenience an work life balance needs of some Dental Officers without unfair discrimination or unreasonable burden on other Dental Officers.
2. Justice Health argued the Notifier's basis for seeking remedies is misconceived.
3. Justice Health argued that the requirement of rural travel is reasonable: 1. as Dr Singh and Dr Raouf are not required to work or undertake five days of rural travel every four-week roster, rather this is the maximum amount of rural travel a DO is required to undertake; 2. given the terms and conditions and arrangements known and agreed to by all DOs, VDO's and Dental Assistants, including Drs Singh and Raouf; 3. and fair given the manner in which rosters are made and DOs', VDO's and Dental Assistants are given the fair opportunity to comment prior to finalisation of the roster so as to ensure an equitable work-load; 4. and necessary given that Justice Health has statutory, and Drs Singh and Raouf have professional obligations to ensure that good care and oral health services are equitably provided to a highly vulnerable patient population whose health needs are often numerous and more complex than the wider community; and 5. and necessary for Justice Health to discharge its statutory functions, and reasonable use of public monies which it is funded to provide essential health services to the vulnerable patients in its care.
4. These points were elaborated upon in the Respondent's written and oral submissions.

Legislative context

1. Section 3 of the Industrial Relations Act 1996 (NSW) (the Act) provides: 3 Objects The objects of this Act are as follows: (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.
2. Section 136 of the Act provides as follows: 136 Arbitration of Dispute (1) the Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under part 1 of chapter 2, (c) make a dispute order under part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.
3. I note also the requirement that the Commission act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s. 163 of the Act.

Consideration

1. In considering the matters raised by this dispute, including whether or not the travel that is required of the Dentists is reasonable and the appropriate relief to resolve it, I have identified the following matters as relevant: 1. the operational requirements of Justice Health to deliver services it is required to; 2. the inherent requirements of the roles occupied by the Dentists; 3. the impact the travel has on the Dentists' safety, health and well-being and the impact upon their family lives; 4. the extent to which Justice Health is willing and able to make reasonable adjustments to the requirement to travel at the request of the Dentists; 5. the pattern of work that has existed at Justice Health with respect to the work of the Dentists over the course of their employment; 6. the nature of the Dentists' role and their professional responsibility to patients; 7. the representations made by Justice Health with respect to the inherent requirements of the role relating to travel at the time of the commencement of their employment and during the course of their employment; and 8. the representations made to the Dentists at the time that they commenced their employment and during the course of their employment with respect to their entitlement to the DORIS allowance and the removal of the DORIS allowance.
2. Below I have considered these matters in turn.

The operational requirements of Justice Health to deliver services it is required to and the inherent requirements of the roles occupied by the Dentists

1. A set out above, Ms Cook gave evidence with respect to the operational requirements of Justice Health relating to the delivery of services which are provided by the Dentists. Justice Health is presented with the challenge of needing to deliver services to persons incarcerated across the State of New South Wales, where approximately half of those on the waiting list at the time of the hearing were located in rural areas.
2. I accept the evidence of Ms Cook that if rural travel was to be reduced to no more than two days a week for the Dentists, this would significantly impact on the services delivered and/or other DOs.
3. I further accept Ms Cook's evidence that it will never be operationally possible to efficiently run a rural clinic session for less than two days due to limited access to patients when in clinic as well as the time that it takes for DO's to travel to and from the rural locations.
4. I have found that the requirement to travel to conduct rural clinics is an inherent requirement of the Dentists role, which exists to service patients incarcerated throughout New South Wales.

The impact the travel has on the Dentists' safety, health and well-being and the impact upon their family lives;

1. Both Dentists gave evidence with respect to the impact travel has on their health and well-being and their family lives as set out above at [32] in respect of Dr Singh and [40] in respect of Dr Raouf.
2. I accept the Dentists and their families are negatively impacted by the requirement to travel and this extends to their family lives. I accept that while traveling, the Dentists dietary requirements and preferences are compromised and this is inconvenient.
3. However, some of the inconveniences they describe in their evidence are historical issues, grievances that have been resolved, or "one-offs".
4. For example, Dr Singh raised the issue of being required to eat breakfasts provided by accommodation, rather than receiving an allowance to purchase his own. However, the current arrangement is that the Dentists have a choice of either eating breakfast at their accommodation or claiming for the allowance. Although the Dr Singh gave evidence this change only came into place in May 2019, he has claimed and been paid the breakfast allowance for every rural trip since November 2017.
5. Dr Singh gave evidence with respect to a car accident he was involved in during January 2009 travelling to Mudgee. I have given little weight to this incident. The requirement to drive to rural clinics will remain the same even if the Notifier were successful. There is no evidence that the requirement to drive to service country clinics presents an unacceptable safety risk to the Dentists.
6. Similarly, Dr Singh gave evidence with respect to being directed to travel to rural clinics outside of ordinary hours and being required to take time off in lieu for this time, rather than claim overtime. Again, this was not a current requirement of Justice Health.
7. Further, the Dentists gave evidence with respect to the accommodation they have been booked into over the course of their employment.
8. Dr Singh complained that he had been booked into accommodation in Wellington and Lithgow he described as unsafe at night. Further, Dr Raouf gave evidence that he is "often booked into bad locations or motels in deserted areas, such as in Wellington where I can feel unsafe to leave the hotel room after dark." However, Ms Cook gave evidence that: 1. Dr Singh had not been booked into accommodation in Wellington after he raised concerns in September 2017; 2. from September 2017, staff were given an option of staying in Dubbo or Wellington when working in Wellington; 3. the last occasion Dr Singh stayed in Wellington was July 2017; and 4. the last occasion Dr Raouf stayed in Wellington was also July 2017 and he has not worked in Wellington since August 2018 when he was booked to stay at Dubbo.
9. Further, in evidence was an email exchange of 8 May 2018, where Dr Singh complained about the accommodation he had been booked into in Lithgow and requested that he be booked into the "Zig Zag where i usually stay when in Lithgow." Ms Cook gave evidence that Dr Singh's accommodation at Lithgow had been booked at the last minute due to an unforeseen cancellation of the Wellington clinic and was amended the next day in accordance with his request.
10. From the evidence, I find that Justice Health has taken into account concerns with respect to accommodation raised by the DO's and acted appropriately with respect to those concerns, providing alternative arrangements at their request.
11. Dr Singh gave evidence with respect to a stay in Muswellbrook from 1-5 July 2018, where he arrived at the hotel on Sunday, 1 July 2018 to learn his booking was declined and he needed to plead with the hotel owner to allow him to stay. The hotel had declined the booking and confirmed this by email on Friday, 29 June 2018 to Dr Singh at 4:37 pm. While this situation was unfortunate, it was resolved the next day and there was no evidence before the Commission that there was a systemic issue with respect to the booking of accommodation by Justice Health. It was a one off "mix-up".

The extent to which Justice Health is willing and able to make reasonable adjustments to the requirement to travel at the request of the Dentists

1. Despite, the Dentists' evidence that they were not aware of Justice Health's policies relating to flexible work practices, Justice Health provided evidence of its willingness and ability to make reasonable adjustments to the requirement to travel at the requests of the Dentists. Although Dr Singh provided an example in his evidence of being refused a request not to travel for three months to care for his ill father, the balance of the evidence demonstrated that the Dentists could and did seek adjustments to the roster to accommodate their personal circumstances and that these requests were taken into account and acceded to where possible.

The pattern of work that has existed at Justice Health with respect to the work of the Dentists over the course of their employment

1. Both Dentists have been required to work for up to five days for every four-week roster period for extensive periods of time. With respect to Dr Singh, he had been required to work up to five days per cycle rurally for more than 10 years. Dr Raouf has been required to work up to five days rurally from the commencement of his employment in November 2014.

The nature of the Dentists' role and their professional responsibility to patients

1. The Commission accepts that the nature and role occupied by the Dentists is in the nature of a vocation and they have professional responsibilities to their patients.

The representations made by Justice Health with respect to the inherent requirements of the role relating to travel at the time of the commencement of their employment and during the course of their employment

1. The Commission accepts that it is an inherent requirement of the Dentists positions to travel and service rural clinics up to five days out of every four-week roster cycle. In respect of Dr Raouf, the Commission finds on balance, having considered the evidence, this requirement was known to him at the commencement of his employment. I make this finding in the context of Dr Raouf completing an application for employment for his position which clearly states as a selection criteria the need for a current Drivers License and willingness to travel if required. The selection criteria further stated that dental officers are required to travel to rural locations on a rotational basis of one week per calendar month.
2. With respect to Dr Singh, the requirement to conduct rural clinics was contained in the advertisement for his position and the issue of an allowance to travel was discussed in the interview for the position. I do not accept the argument that the words in the advertisement, "overnight stays" must mean something less than five days per month. However in his initial interview, Dr Singh was told that that he would be required to spend "a night or two" travelling and indeed this is what was required of Dr Singh prior to 2008. The amount of travel required of Dr Singh increased after the resignation of Dr Hill to its current level of up to five days out of every four-week roster cycle. Dr Singh worked under these conditions for about a decade seemingly without dispute until the events leading to these proceedings. While it is relevant Dr Singh was initially advised he would only need to work "a night or two" is relevant, as is the lack of consultation on the increase from 2008, this needs to be considered in the context of the fact that the arrangement of up to five days in a four-week roster cycle was in place for about a decade before this dispute arose.

The representations made to the Dentists with respect to their entitlement to the DORIS allowance and the removal of the DORIS allowance

1. It is relevant to this matter that both Dentists were told in their interviews for their positions prior to their engagement that they would be paid an allowance for the time they spend traveling rurally.
2. Justice Health continued to represent to the Dentists that they were entitled to such an allowance by paying it to them for an extensive period of time. In respect of Dr Singh, he received the allowance for almost 14 years, while Dr Raouf received it for about five years.
3. Justice Health submitted and I agree that there is a public interest in ensuring people within its employment does not receive allowances they are not entitled to. However, they did not lead any evidence to explain how the Dentists came to be mistakenly paid the DORIS allowance, or how it came to pass that the representations they were entitled to it were made to them over such a lengthy period of time. The evidence does not support the characterisation of the erroneous payment of the DORIS Allowance as "administrative".
4. Although the parties have agreed that the Rural and Remote Incentive Scheme (Scheme) conveying the DORIS allowance does not cover the circumstances of the Dentists, the evidence leads to the conclusion that there was a decision by Justice Health to extend the Scheme to them. The Scheme provides "discretion to offer incentives to assist with attraction and retention of employees in relation to hard to fill positions in rural and remote locations". While the Dentists reside in Metropolitan Sydney, they are required to travel to rural and remote locations up to five days every four-week roster cycle.
5. The Commission does not agree that the Dentists should have felt an ethical compulsion to pay back the allowance once the decision was made to remove it in these circumstances.
6. The payment of the allowance was a systemic error on the part of Justice Health and this failing is most likely the root cause of the dispute. This is supported by the evidence of Mr Stein that he was not aware of the Dentists having issues with travel prior to the removal of the DORIS allowance. It was unfortunate that Justice Health made the decision to stop paying the DORIS allowance given the clear custom and practice of payment to the Dentists traversing many years.
7. It is for these reasons the Commission recommends the reinstatement of the DORIS allowance to the Dentists. In doing so, I have taken into account the objects of the Act (in particular s.3 (a), (b), (g) and (h)) and the requirement the Commission act according to equity, good conscience and the substantial merits of the case.

Conclusion

1. Having considered each of these matters in the context of the Dr Raouf and Dr Singh, I have concluded that the requirement to travel up to five days rurally in respect of every four-week roster cycle is reasonable.
2. In determining these issues, particular consideration has been given to the requirement that Justice Health service inmates located in rural locations, the fact that the requirement to travel was known by the Dentists from the commencement of their employment (albeit the amount of travel increased for Dr Singh during the course of his employment) and both have travelled up to five days per roster cycle for lengthy periods of their employment, and on occasions more. It is also relevant that Justice Health has demonstrated a willingness to make adjustments to the Dentists travel from time to time to accommodate their personal circumstances. In making this assessment, I have considered the personal impact the requirement to travel has on the Dentists and their families and the removal of the DORIS allowance. I have been unable to find that the travel required poses a health or safety risk to the Dentists.
3. However, in determining the appropriate relief in this matter, I consider it is appropriate that a recommendation be made that Justice Health reinstate the DORIS allowance to the Dentists for the reasons set out in this decision.

Recommendation

1. Pursuant to s136(1)(a) of the Industrial Relations Act 1996 (NSW), I recommend that Justice Health reinstate the DORIS allowance to the Dentists in respect of rural work undertaken by them.
2. Matter N02019/78777 is hereby concluded.

Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2019