New South Wales Nurses and Midwives' Association v Secretary, Ministry of Health in respect of Northern Sydney Local Health District - [2022] NSWIRComm 1001 - NSWIRComm 2021 case summary — Zoe

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New South Wales Nurses and Midwives' Association v Secretary, Ministry of Health in respect of Northern Sydney Local Health District

[2022] NSWIRComm 1001

Industrial Relations Commission (NSW)|2021-12-01

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2021-12-01

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

decision

This dispute concerns the wish of a member of the applicant ("the Employee"), who is a permanent part-time employee of the respondent, to be rostered only on shifts across Friday, Saturday, Sunday and Monday, in the face of a preference by the respondent to roster the employee across seven days of the week.
The Employee has worked for the respondent on a part-time basis for many years. She seeks to confine the days on which she will be rostered by the respondent on the basis that she is committed on the other days as the primary carer of her son.
The respondent asserts that it is unable to accommodate the Employee's desired limitations on working days for a range of reasons, including rostering fairness, skill mix on shifts across the week, existing staff vacancies, difficulties with filling the roster on some of the days the Employee does not wish to work, skill retention for the Employee, and clinical supervision of the Employee.
In its dispute notification, in its submissions, and at hearing, the applicant proposed that "the industrial issues of concern for the Industrial Relations Commission of New South Wales … to address" were: 1. Whether the respondent's demand for the Employee to be available seven days of the week when she is a part-time employee is reasonable; 2. Whether the respondent failed to comply with clause 49 of the Award by failing to take all reasonable steps to ensure the Employee is not discriminated against because of her carer responsibilities; 3. Whether the respondent denying the Employee a temporary arrangement in line with her wishes and/or the rostering demand is indirectly discriminatory based on the grounds of her carer responsibilities; 4. Whether the respondent has complied with the Flexible Working in the NSW Public Sector framework; and 5. Whether the Employee's flexible working arrangement should be provided for at least another 12 months.

[2]

[3]

The Employee's personal circumstances

The Employee gave evidence that as the carer of her 14-year-old son she has reliably only the support of her husband, her son's father. She described having no extended family in Sydney to assist with her carer responsibilities.
The Employee gave evidence that she "[had] been working 3 days across Mondays, Fridays, Saturdays and Sundays so [she could] manage [her] son's schooling commitments and caring responsibilities." She described these responsibilities as including taking her son to school, tutoring, band practice and sports activities.
The Employee gave evidence that: 1. Her son participated in a number of activities to assist with reducing and/or preventing asthma symptoms, although she did not say what these activities were specifically. She noted that her son is asthmatic and has an asthma plan. The plan was attached to her witness statement. 2. Her son plays the trombone in a special music stream at school and has regular band practices that commence either before or after school. She described the trombone as bulky, weighing approximately 6 kg and with dimensions of approximately 92 cm x 35 cm x 28 cm. 3. Her son typically carries a backpack to school weighing approximately 8 kg; 4. She had managed to create predictability for her son to ensure he has the capacity to take on his extracurricular activities in a caring environment; and 5. It would be too difficult for her son to attend school and his after-school activities by bus, as the bus routes in the relevant area had recently changed. In this regard, the Employee attached two articles reporting on changes to bus routes. The Employee gave verbal evidence that for her son to take a bus to school "… it's a decent walk, a hop on a bus, and another 20-minute walk."
The Employee made the distinction between a parent or carer and a "primary carer", preferring the latter term for herself. She described a primary carer as the subset of parents/carers who "do all the heavy lifting" in caring for their child.
The respondent was aware of the Employee's personal circumstances, including those relating to the care of her son. The respondent did not take issue with the evidence given by the Employee about her personal circumstances, but did not agree with the Employee's position as to the impact this should have on the respondent's rostering.

[5]

Rostering arrangements of the Services

The Service's Nursing Unit Manager ("NUM") gave evidence that it was the respondent's policy and expectation that clinical employees providing the Service are subject to a rotating roster, to be rostered on any of the days over which the Services are provided to its clients. The NUM's evidence was that such shift arrangements are an inherent expectation of employment at the Service.
It was common ground that a four-week roster was prepared in advance, initially as a draft roster on which the Service's employees could provide feedback. The feedback could be an informal request for changes to the draft roster, could be constituted by a so-called "red request" or could be the subject of a Temporary Individual Roster Arrangement ("TIRA").
The NUM gave evidence that that wherever possible she accommodated informal requests. The NUM's evidence was that not all requests could be accommodated for a range of reasons including operational capacity, the requests of other employees, and the NUM's ability to source other staff, which varied across different days of the week.
It was common ground that full-time employees of the Service are now entitled to four red requests per roster period, and part-time employees to two red requests per roster period. The Employee described a red request as a request not to work a specified day or shift, or to definitely work a specified day or shift. The NUM described a red request as one which would rule out an employee working on a specified day or shift.
It was common ground that a TIRA was a formal agreement which could, inter alia, and for a limited period, allow an employee to have an accommodation so that they were not required to be available to work across the full range of days and hours during which the Service was provided.
It was the Employee's evidence, and obvious on any analysis, that among the rostering arrangements available, only a TIRA could provide the rostering certainty which she sought.
The NUM gave evidence that two thirds of the Service's employees had caring responsibilities, and that this led to various requests for shift allocations that accommodated those responsibilities.
She also gave evidence of the difficulties in creating the roster given the seven day a week, and broad span of hours, over which the Service is provided. Her evidence was that shifts on certain days of the week are more difficult to fill if the permanent employees of the service are not rostered on those days.
The NUM gave evidence that Tuesdays and Thursdays are the most difficult days to fill if the permanent employees of the Service are not rostered on those days.
Her evidence was that it had been "really hard" to fill the weekday shifts during the periods when the Employee had had an approved TIRA which excluded the Employee working Tuesday, Wednesday and Thursday.
Under cross-examination about approved positions at the Service which are currently vacant, the NUM gave evidence that these vacancies added to the rostering difficulties she faced in preparing a seven-day a week roster.
Also under cross-examination, the NUM rejected the idea that taking into consideration the availability of casual employees amounted to preferencing them for weekend shift work. The NUM's evidence was that casual staff did not get to request their preferred shift; they were either available or not available and were not guaranteed to be rostered for any shifts. She denied having a preference to roster casual employees on weekends.
The NUM gave evidence that whilst shift swapping by agreement between employees was permissible, it was subject to her approval, including because of the different professions employed to work in the Service. For example, a registered nurse would not automatically receive approval to swap a shift with an allied health professional.
The NUM also gave evidence that weekend shifts were desired by the permanent employees of the Service. She emphasised that it was her practice, and desired by the employees, for weekend shifts to be shared evenly amongst the Service's permanent employees so far as was possible.
Under cross-examination, the NUM gave evidence that she was employed part time, and had a fixed roster of hours, including not working on Thursdays. Her evidence was that this was as required by the respondent. The NUM's evidence was that she had a purely management role and did not perform clinical duties for clients of the Service.

[21]

Consideration

The applicant's case was put on the basis that the Employee should, as a general matter of fairness, be afforded rostering arrangements which would allow her to work all of her permanent part-time hours on Friday, Saturday, Sunday or Monday. It was not put on the basis that the Employee had a specific agreement with the respondent for this arrangement, nor that this was the established practice for the Employee, which could only be changed through negotiation or agreement with the Employee.
Despite the Employee's evidence in her written witness statement that she had agreed this arrangement with a previous manager, the evidence at hearing established that there was no specific agreement with the Employee upon which the respondent previously accommodated Employee's desired rostering arrangement.
It was clear from the evidence of the Employee that prior to approximately October 2020, all employees of the Service effectively exercised a right to select the shifts which they would work to make up their contracted hours. In the Employee's case this resulted in her being able to select, in her words, "… 16 indications on the roster …" which she wished to work over each four-week roster.
After that time, it was clear that the management of the Service took firmer control of roster drafting, focusing on building the roster based on the operational needs of the Service and its clients.
The applicant proposed a series of "industrial issues of concern" for the Commission to address in arbitrating this dispute. It also proposed orders which it asked the Commission to make.
I have answered each of the applicant's articulated industrial issues of concern, although I do not consider these are the most useful way for the Commission to analyse the issues in dispute.
In my view, the proper questions for the Commission to address are whether, for any one or more of the reasons advanced by the applicant, the Commission should order, direct or recommend that the respondent give the Employee either: 1. The rostering accommodation specifically sought by the Employee; or 2. An alternate rostering accommodation, less generous than that sought by the applicant, but more generous than currently offered by the respondent.
Regardless of the questions being addressed, I would not make the first of the orders sought by the applicant. Of course, the respondent should "comply with its obligations under the Flexible Working in New South Wales Public Sector framework and/or Anti-Discrimination Act 1977 (NSW)." However, without greater specificity I consider that it is not appropriate to recommend or direct that the respondent comply with self-evident obligations.
Depending on the answer to the questions which I consider the Commission should address, the second order sought by the applicant, or some variation of it, might be appropriate.

[23]

Anti-discrimination obligations

In exercising functions pursuant to the Industrial Relations Act (1996), the Commission is required to take into account the principles contained in the Anti-Discrimination Act.
In the matter before the Commission, and on the basis of arguments by the applicant, I address this requirement by examining whether the applicant has made out a case that the respondent has indirectly discriminated against the Employee by declining her desired rostering arrangements.
In its submissions on the Anti-Discrimination Act, the applicant focused on the failure of the respondent to demonstrate unjustifiable hardship to the respondent in declining the rostering accommodation sought.
Through the evidence of the NUM, the respondent was able to demonstrate the significant difficulties it would face in accommodating the Employee's rostering request. This included the actual difficulties experienced during the time the Employee was granted TIRAs.
Based on the evidence that two thirds of the Services employees have carer responsibilities, I consider it would have been difficult for the applicant to have established that the respondent has created a requirement which indirectly discriminates against its employees with carer responsibilities. There was scant evidence, and only brief submissions, on this point.
In any event, I have been unable to conclude that a requirement that the Employee work a rotating roster across all seven days of the week is a requirement with which she cannot comply. As the respondent submitted, this rostering requirement would not have the Employee actually working each day that she seeks to avoid being rostered. Based on the evidence of the NUM the Employee would be rostered two out of every four weekends and across a range of weekdays.
I accept absolutely that it is a matter for the Employee to determine the schooling and extracurricular activities of her son. Nevertheless, I am able to, and should, consider objectively whether those arrangements mean that the Employee cannot comply with the respondent's rostering requirements.
The Employee's son is 14 years old and attending high school. While the evidence was that the Employee's son is asthmatic, neither the Employee's evidence, nor the applicant's submissions made anything more than the bare fact of his being asthmatic. The Employee's son's asthma plan appeared to be a generic stepped guide to responding to different levels of asthma symptoms. I was not taken in the evidence to any heightened vulnerability of the Employee's son above his being asthmatic as such.
The Employee's evidence as to the difficulty of her son catching a bus to or from school was, in the end, little more than an assertion that it was difficult. She attached to her written statement two articles which reported that changes had been made to bus routes but did not include any timetables or route descriptions relative to either her home, her son's school or his after school activities. The totality of the evidence cannot establish the asserted difficulties of her son taking the bus.

[26]

Award and letter of engagement

Unsurprisingly, the applicant and the respondent took different views of the fact that the Award does not specifically address the hours over which a shift worker may be rostered. The applicant emphasises that the Award did not expressly require a shift worker to be available all the days a health service operated. The respondent emphasises that the Award did not expressly restrict the hours over which a shift worker could be rostered.
Neither party took the Commission to any extraneous material or history which could shed light on the appropriate interpretation. The applicant's submissions went no further than that the Award did not in terms specify that employees are required to be available all the days of the week. The respondent went a little further in making the point that without the ability to roster staff over the full span of hours of a health service, it is hard to set a roster for such a service.
Addressing the parties' submissions on this point, the respondent's is more objectively suited to the circumstances of the workplaces covered by the Award. There is force in the respondent's submission that without the ability to roster shift workers over the full span of hours of a service in which they are employed, it could become impossible for seven day services, and especially seven day-24 hour services, to operate effectively.
I have drawn some general support for this conclusion from the evidence of the managers of the other services of the respondent who testified. They operate services over seven days and roster their permanent employees over the full span of days and hours over which their services operate. While they do not supervise the Employee, and have no specific knowledge of the Employee's circumstances, I accept that they manage generally similar services to the Service.
The respondent's position as to the effect of the Award not expressly addressing the days over which a shift worker may be rostered is to be preferred over the applicant's.
I have reached the same conclusion about the Employee's contract of employment/letter of offer being similarly silent as to the days on which the Employee may be rostered, for the same reason.

New South Wales Nurses and Midwives' Association v Secretary, Ministry of Health in respect of Northern Sydney Local Health District

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)