New South Wales Nurses and Midwives' Association v The Health Secretary on behalf of New South Wales Health Pathology [2026] NSWIRComm 1027

1. These proceedings concern an application notified under s 130 of the Industrial Relations Act 1996 (NSW) (IR Act) by the New South Wales Nurses' and Midwives' Association (the Notifier).
2. The dispute concerns the proper operation of the Award in relation to persons employed by the Health Secretary who are covered by the Public Health System Nurses' and Midwives' (State) Award (the Award) and who:

(a) work as Registered Nurses within the Hunter Clinical Pathology Collection Service of NSW Health Pathology (HCPCS); and

(b) are called upon, when rostered on call, to remotely perform work, which may be for relatively short periods.

1. The Notifier originally notified a broader dispute on 28 November 2024 concerning members employed by the HCPCS. Following direct discussions between the parties and a process of extended conciliation before Commissioner O'Sullivan on 2 and 9 December 2024 and 24 September 2025, the scope of the dispute narrowed to the issues presently before the Commission.

(1) is a clinical pathology collection service operating in the Hunter region of New South Wales;

(2) operates from approximately 24 sites at which pathology specimens are collected and sent for laboratory testing;

(3) generally, operates between 7.30 am and 5 pm on weekdays, with a Registered Nurse Team Leader or Nursing Unit Manager usually commencing duty at 6 am, and with some sites also opening for restricted hours on weekends;

(4) is staffed by classifications including Registered Nurses, Enrolled Nurses and Technical Officers;

(5) currently has a management structure comprising Ms Kim Bevan (Operations Support Manager) and two Nursing Unit Managers, Mr Jamie Stedman and Ms Sonia Sabouni;

(6) is not a 24‑hour service.

1. From around April 2018 until around July 2025, a practice existed whereby a group of Registered Nurses and Nursing Unit Managers were rostered to participate in an on‑call roster.
2. When rostered on call, a Registered Nurse or Nursing Unit Manager:

(1) commenced their on‑call period at the conclusion of their ordinary rostered shift;

(2) was required to take an employer‑issued mobile telephone with them on leaving the workplace (or have calls diverted to a personal mobile phone);

(3) was required to take home certain hard copy documents, including the roster, daily run sheet and staff contact details;

(4) was expected to answer calls or messages to the employer‑issued mobile telephone, most commonly from employees advising they were unable to attend a rostered shift commencing the following day;

(5) where such advice was received, was required to attempt to arrange a replacement to ensure the HCPCS could operate as normal, including by consulting documentation, assessing availability and suitability, and making telephone calls to staff members;

(6) was not required to return to the workplace;

(7) was rostered to work an ordinary shift commencing the day after the on‑call period commenced;

(8) was paid the on‑call allowance prescribed by cl 12(ii)(a) of the Award;

(9) was generally not paid any other additional amount.

1. The parties filed a Statement of Agreed and Disputed Facts and Issues dated 23 January 2026. Unless otherwise indicated, the factual background set out above reflects matters agreed between the parties. Matters identified as disputed were addressed through the evidence and submissions and are dealt with later in these reasons.

(1) Before turning to the issues for determination, it is convenient to briefly summarise the evidence and submissions relied upon by the parties.

1. In support of the application, the Notifier relied upon the following submissions and evidence:

(1) submissions filed on 29 October 2025;

(2) submissions in reply filed on 24 December 2025;

(3) witness statement of Ms Anna Sharpe dated 29 October 2025 and statement in reply dated 24 December 2025;

(4) witness statement of Ms Wendy Elford dated 29 October 2025; and

(5) witness statement of Mr Jamie Stedman dated 29 October 2025.

1. The Notifier submitted that, while rostered on call, nurses performed work of a substantive and operational character in responding to calls, including consulting rosters and run sheets, exercising judgment as to availability, skill mix and location, and arranging replacement staff so that HCPCS could operate as scheduled.
2. The Notifier submitted that the activities undertaken by nurses while rostered on call constituted "actual duty" within the meaning of cl 4 of the Award, which provides that time spent on call is not counted as time worked except where an employee takes up actual duty. Once such duty was taken up, the nurse was no longer merely available, but became entitled to payment under cl 25, which governs payment for work performed outside ordinary hours. The on‑call allowance payable under cl 12 was said to compensate only for the availability and inconvenience associated with being on call, and not for work performed during an on‑call period.
3. The Notifier submitted that its primary position was that work performed while rostered on call constituted a recall to work within the meaning of cl 25(3), attracting the minimum four‑hour entitlement. In the alternative, it contended that, if cl 25(3) did not apply, the work constituted overtime payable under cl 25(2)(a) for the actual time worked. The Notifier acknowledged that the latter construction required payment by reference to minutes worked and characterised it as an unsatisfactory or awkward outcome when compared with other minimum payment provisions in cl 25, including cl 25(10), submitting that cl 25(3) provided a clearer and more coherent mechanism for remuneration in the on‑call context.
4. The Notifier further submitted that the dispute before the Commission was a threshold one concerning the proper application of the Award. It emphasised that the parties agreed that work was performed while nurses were rostered on call, and that the issue for determination was therefore not whether an entitlement arose, but how that work is to be remunerated under the Award.
5. The Notifier sought relief pursuant to s 136(1)(d) of the IR Act, namely a determination as to how the Award applies to work performed by nurses while rostered on call. The relief sought did not include an order fixing any monetary amount. Rather, the Notifier proposed that, if such a determination were made, the parties would confer in good faith on implementation, including any question of back payment, and that, in the event agreement could not be reached, the matter could return to the Commission for further determination.
6. The Notifier further submitted that a determination of that kind would provide clarity and finality as to the operation of cl 25, and that, whichever provision applied, the articulation of governing principles would be sufficient to allow the parties to address implementation issues, including questions of quantification, without the need for further proceedings.

1. In support of its case, the Respondent relied upon the following submissions and evidence:

(1) submissions filed on 3 December 2025;

(2) witness statement of Ms Lorretta Thomson dated 3 December 2025;

(3) witness statement of Ms Kim Bevan dated 3 December 2025; and

(4) witness statement of Mr Mitchell Henderson dated 3 December 2025, together with annexures MH‑1 to MH‑10.

1. In its written submissions, the Respondent contended that the on‑call allowance payable under cl 12 of the Award adequately compensated nurses who were rostered on call, and that any activities undertaken during those periods were limited in scope and did not attract a further entitlement to payment under the Award. That position, however, evolved as the matter progressed.
2. In closing oral submissions, the Respondent accepted that nurses performed work while rostered on call and conceded that the on‑call allowance did not compensate for that work. It accepted that, once such work was performed, an entitlement to payment under the Award was enlivened.
3. The Respondent's position was that any such entitlement arose under cl 25 but was confined to payment for the actual time worked and did not give rise to a minimum recall entitlement. It submitted that the work was performed as part of a foreseeable and structured on‑call arrangement, did not involve an unforeseen resumption of duty, and did not constitute a recall within the meaning of cl 25(3). On that basis, the Respondent submitted that any entitlement was payable, if at all, under cl 25(2)(a).
4. As a result of those submissions, the dispute narrowed. The issue for determination is no longer whether payment is owed for work performed while rostered on call, but how the Award applies to determine the appropriate method of remuneration and the scope of the Commission's role in resolving that issue.
5. The Respondent further submitted that the Commission's powers under s 136 of the IR Act were confined to making a prospective determination as to the application of the Award, and that the proceedings could not finally resolve matters of compensation or quantum. It contended that the appropriate outcome was for the Commission to provide guidance as to the application of cl 25 to work performed while rostered on call.
6. The Respondent also submitted that, if agreement could not be reached following conferral, it proposed to make payment of what it considered to be the appropriate amount of overtime, leaving any further dispute to be pursued by the Notifier or individual employees through other mechanisms available under the IR Act.
7. In reply, the Notifier maintained that the dispute was capable of resolution through arbitration under s 136 and that the Commission should determine how the Award applies to the work performed. It rejected the suggestion that considerations of industrial practicality or cost could justify a departure from the proper construction of the Award. The Notifier contended that the performance of work in response to calls constituted a recall to work within the meaning of cl 25 and submitted that any practical difficulties in application were matters for implementation following the Commission's determination.

1. In response to a summons to produce issued in the course of the proceedings, Telstra Limited produced data for the period 6 May 2018 to 22 April 2025 showing the date, time and duration of incoming and outgoing calls, together with messages, to and from the employer‑issued mobile telephone (Telstra Data). That material was annexed to the witness statement of Mr Henderson.
2. The Respondent relied on the Telstra Data as objective evidence of call activity during on‑call periods. The Telstra Data was of some assistance in confirming the occurrence and timing of telephone contact, and in identifying the duration of individual calls. Its utility was, however, limited. The Telstra Data recorded only the duration of calls and messages and did not capture time spent by nurses undertaking ancillary or administrative tasks associated with filling vacant shifts, including reviewing rosters and documentation, considering staffing options, or exercising judgment either before or after telephone contact. Accordingly, while the Telstra Data provides an objective record of call activity, it does not reflect the full extent of work performed during on‑call periods.
3. The evidence and submissions were directed not to the quantification of any entitlement, but to the proper application of the Award. The dispute therefore turns on the construction of the relevant provisions of the Award, having regard to its text, structure, purpose and industrial context.
4. The Respondent placed significant reliance on the evidence of Ms Bevan, as contained in her witness statement dated 3 December 2025 and her oral evidence. However, in cross‑examination, Ms Bevan accepted that she did not directly participate in, observe, manage or supervise the on‑call practice at any time. Although she commenced in the role of Operations Support Manager in April 2022, she accepted that she did not turn her attention to, or acquire any understanding of, how the on‑call arrangements operated until around May 2023.
5. Ms Bevan further accepted that her description of the on‑call practice in her witness statement was not based on her own direct knowledge or observation of how the practice operated. Rather, her evidence as to the nature and operation of the on‑call arrangements was derived from information provided to her by others, including Nursing Unit Managers and other staff, when she made enquiries following changes to the arrangements in 2023 and in the course of preparing her witness statement for these proceedings. She accepted that significant aspects of her evidence concerning the nature and extent of the work performed while nurses were rostered on call were therefore based on second‑hand information, rather than any first‑hand knowledge.
6. In contrast, the evidence of the Notifier's witnesses was based on their direct participation in the on‑call arrangements. Their evidence described, in general terms, the work actually performed, including responding to calls, consulting rosters and documentation, exercising judgment as to staffing needs, and taking steps to arrange replacement staff to ensure continuity of service. The witnesses also described the practical constraints imposed by being rostered on call, including the need to remain contactable, available to respond to calls, and to structure their personal arrangements around that requirement.
7. I accept that evidence as to the nature and character of the work performed, including the practical constraints associated with being rostered on call. A significant limitation of the evidence, however, is that the witnesses were unable to give precise or quantified evidence as to the amount of time spent performing work during any particular on‑call shift.
8. As Ms Sharpe explained in her evidence, "The precise amount of time that the work would take to complete during each occasion as an on‑call RN is difficult for me to accurately quantify, in the absence that it was dependent on a whole host of variables and factors that changed each time we were on call."
9. Mr Stedman and Ms Elford gave evidence to similar effect. Mr Stedman explained that, because of the way the on‑call work was carried out, there were no contemporaneous records, electronic or otherwise, capable of identifying how long work took to complete for the designated on‑call registered nurse, apart from call logs relating to the employer‑provided mobile telephone.
10. The Respondent also relied on the evidence of Ms Thomson, who participated in the on‑call arrangements during an earlier period, limited to weekdays, up to about April 2022. Ms Thomson gave evidence based on her experience in a senior role with substantial responsibility for rostering, which gave her a high degree of familiarity with staff availability, skill mix and service requirements at the time. Her evidence was informative as to how the on‑call arrangements operated during that period and as to the general character of the work performed. However, her evidence was confined to that period and to weekday arrangements and was therefore of limited assistance outside those circumstances. The Respondent accepted those limitations and maintained that its reliance on Ms Thomson's evidence was directed to illustrating the general character of weekday on‑call work during that period.
11. The evidence concerned practices extending over a number of years, which necessarily limited the capacity of witnesses to give detailed or quantified evidence about the duration of work performed on particular occasions. That limitation goes to issues of extent and duration, rather than to whether work was performed at all. It was also common ground that the Respondent did not keep records of work performed while employees were rostered on call, and that employees undertaking on‑call work did not have access from home to workplace computer systems. Those matters further limited the capacity of the evidence to support precise findings as to the duration of work performed.
12. In closing submissions, the Respondent indicated that, if agreement could not be reached following conferral, it proposed to make payment of what it considered to be the appropriate amount of overtime, and that the Notifier or affected employees had rights under the IR Act.

1. Against that evidentiary background, the task for the Commission is to construe and apply the relevant provisions of the Award by reference to their text, structure, purpose and practical operation, having regard to the factual circumstances established above.
2. The provisions of central relevance to the dispute are:

(1) cl 4(xvii), which addresses the treatment of time spent on call and draws a distinction between being on call and taking up "actual duty";

(2) cl 12, which provides for the payment of an on‑call allowance; and

(3) cl 25, which governs the payment of overtime and, in certain circumstances, recall.

1. In construing those provisions, the Commission must have regard to the ordinary meaning of the words used, read in context and as part of the Award as a whole, having regard to its industrial purpose and the practical context in which it operates. The Award is to be interpreted as a practical industrial instrument, not a technical legal document: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182.

1. Clause 4(xvii) provides that time spent on call is not to be counted as time worked, except insofar as an employee takes up actual duty in response to a call. The clause draws a distinction between availability for work and the performance of work.
2. The evidence establishes that, while rostered on call, nurses responded to staffing issues as they arose and, in doing so, undertook activities including consulting rosters and documentation, assessing skill mix and availability, exercising professional judgment, and arranging replacement staff to ensure the continued operation of HCPCS.
3. Those activities involved the performance of work of a substantive and operational character. They were not passive or incidental to mere availability. When a nurse engaged in those activities, they moved from a state of availability to one of duty. Properly characterised, that work constitutes "actual duty" within the meaning of cl 4(xvii).
4. While the evidence did not permit precise quantification of the time spent performing such work on particular occasions, that limitation bears on issues of extent and quantum, not on the character of the work. Clause 4 does not require work to be of any particular duration before it constitutes actual duty.

1. Clause 12 provides for the payment of an on‑call allowance where an employee is required to be available outside ordinary hours. The allowance compensates the inconvenience and constraint associated with being on call, including the requirement to remain contactable and available to respond if required.
2. Neither the text nor the structure of cl 12 supports a construction that the on‑call allowance is intended to compensate an employee for work performed while on call. To construe the allowance in that way would deprive the exception in cl 4(xvii) for actual duty of operation and undermine the distinction the Award expressly draws between availability and duty.
3. The Commission therefore accepts the common position ultimately reached by the parties in closing oral submissions that the on‑call allowance compensates availability only and does not discharge the obligation to pay for work actually performed while on call.
4. The Respondent relied on cl 12(viii) of the Award as guidance as to how work performed during an on‑call period may be remunerated. Clause 12(viii) establishes a bespoke scheme applicable only to employees providing emergency telephone counselling and prescribes fixed payments unrelated to the duration or frequency of the work performed. The clause is properly regarded as instructive, but not analogous.
5. The work performed by nurses while rostered on call in the present case is of a materially different character. It is operational, variable in duration, and directed to ensuring the provision of services, rather than the provision of a discrete counselling function. Importantly, cl 12(viii)(d) expressly preserves the application of cl 25 where an employee is "called out" during an on‑call period. The specialised counselling provision therefore assists in construing, but does not limit, the proper construction and application of cl 25 in this matter.

1. Clause 25 is the principal mechanism through which work performed outside ordinary hours is remunerated. Once a nurse takes up actual duty during an on‑call period, cl 25 is engaged.
2. The parties differed on whether work performed while rostered on call gives rise to a recall entitlement or is to be paid as overtime by reference to the actual time worked. That issue turns on the proper application of cl 25 to the factual circumstances, informed by the nature of the on‑call arrangements, the manner in which the work was performed and the industrial purpose of the provision.
3. The principles governing the interpretation of awards in this jurisdiction are well established. They were concisely summarised by Chin VP in Police Association of New South Wales v Commissioner of Police [2025] NSWIC 2 at [13]-[18] and have since been applied by the Commission in Fire Brigades Employees' Union v Industrial Secretary [2025] NSWIRComm 1099. I have had regard to those principles, as well as to the authorities relied upon by the parties, including Director of Public Employment v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158, which, while not determinative, are relevant insofar as they articulate the industrial purposes underlying recall and overtime provisions.
4. It is clear, and ultimately accepted by the Respondent in closing submissions, that once work is performed while rostered on call, an entitlement to payment under cl 25 arises.
5. The Respondent also relied on observations of Sloan C in Health Services Union (New South Wales) v Health Secretary on behalf of Northern NSW Local Health District [2019] NSWIRComm 1055 at [52]:

"Clause 38.2.1 raises the same key question as its predecessor. That is, what does recall to duty mean? Rather than, as the parties would have the question, whether the duties must be performed in the workplace. Like its predecessor, and aside from the single use of the word "absent" in sub-clause (f), there is no indication in the text of cl 38.2.1 that it necessarily contemplates all of the employee's duties will be performed at the employer's workplace. Overall, there is not a sufficiently clear indication that recall to duty must involve an employee going to, or going back to, a particular workplace for me to be satisfied this is the appropriate construction."

That observation does not determine the present dispute. The question here is not whether some work might be performed while an employee is on call, but how the Award applies where work of a substantive and operational character is in fact performed. To the extent that the decision recognises that work may be performed without a physical return to the workplace, it is consistent with the construction adopted in this matter.

1. In considering whether work performed while rostered on call constitutes a recall for the purposes of cl 25(3), I have had regard to the reasoning of Mortimer J in Polan v Goulburn Valley Health [2016] FCA 440 (Polan). That decision confirms that recall provisions are not confined by reference to physical location and that the absence of a return to the employer's premises does not, of itself, preclude their operation. However, Polan does not suggest that all work performed after ordinary hours constitutes a recall. The question remains whether, having regard to the text, structure and industrial purpose of the relevant award provision, the work performed bears the characteristics of recall to which a minimum entitlement is directed.
2. In addressing whether work performed while rostered on call constitutes a recall for the purposes of cl 25(3), the Commission has had regard to the authorities relied upon by the parties, including Polan and other decisions addressing the operation of recall provisions.
3. In this case, although cl 25 is enlivened once actual duty is performed during an on‑call period, the circumstances established on the evidence do not constitute a recall to work of the kind contemplated by the four‑hour minimum payment provision in cl 25(3). The work in question was performed while nurses were rostered on call and arose from structured on‑call arrangements. Although the work was undertaken after ordinary hours, it did not involve the kind of unplanned resumption of duty that the recall provision is directed to compensating.
4. Accordingly, where actual duty is performed during an on‑call period in the circumstances of this case, cl 25 applies by way of the general overtime provisions. Payment therefore falls to be determined under cl 25(2)(a) by reference to actual time worked, rather than by application of the four‑hour minimum recall entitlement. Questions concerning duration and any resulting quantum are matters for implementation, informed by agreement between the parties or addressed by the Commission by recommendation where appropriate.
5. I observe that the issues raised in this dispute reflect broader changes in the manner in which work may be performed in contemporary workplaces. The evidence demonstrates that, in this case, work could be, and was, performed remotely without any requirement for nurses to return to the hospital or other workplace. The Award provisions under consideration were drafted at a time when the recall of employees to the employer's premises was the usual arrangement for work performed outside ordinary hours.
6. Whether the Award adequately accommodates such arrangements is not a matter for determination in these proceedings. That is a matter for the parties and, if appropriate, for the Commission when exercising its power to vary the Award. The Commission's task here is confined to determining how the Award applies in the circumstances addressed in these reasons**.**
7. For the reasons set out above, the Commission concludes that:

(1) where nurses are rostered on call, they are in a state of availability until they take up actual duty;

(2) where nurses perform work while rostered on call, that work constitutes actual duty within the meaning of cl 4(xvii);

(3) the on‑call allowance payable under cl 12 compensates availability only and does not compensate for work performed; and

(4) work performed while rostered on call attracts an entitlement to payment under cl 25, in addition to the on‑call allowance, to be applied in accordance with the terms of that clause as determined in these reasons.

1. The Notifier sought relief pursuant to s 136(1)(d) of the IR Act, submitting that the Commission should make a determination as to the application of the Award to work performed while rostered on call. The Respondent submitted that any such determination could operate only prospectively and that, given the on‑call practice ceased in or around July 2025, it was neither necessary nor appropriate to make a formal determination.
2. The Commission has long been empowered to determine questions concerning the interpretation, application and operation of industrial instruments for the purpose of resolving industrial disputes (see s 175 of the IR Act). Following the commencement of the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025, the Commission is also expressly empowered to make prospective orders or determinations concerning the interpretation or application of an industrial instrument pursuant to s 136(1)(d).
3. In the circumstances of this case, it is unnecessary at this stage to formally exercise the power in s 136(1)(d) in order to resolve the dispute before the Commission. The on‑call practice that gave rise to the dispute has ceased, and any such determination could operate only prospectively. The dispute can be resolved by determining how the Award applies to the relevant work and by making appropriate directions under s 136(1)(a) to facilitate implementation.
4. For those reasons, while I have determined the proper interpretation, application and operation of the Award in relation to the on‑call arrangements in issue, I do not consider it necessary to make an express determination under s 136(1)(d).

Recommendations under s 136(1)(a) of the IR Act

1. These recommendations are made having regard to the Respondent's indication, given in the course of final submissions, that it would abide by any recommendation of the Commission.
2. Having regard to my findings, I make the following recommendations:

(1) In resolving payment issues arising from actual duty performed while employees were rostered on call under the former on‑call arrangements, I recommend that the parties confer with a view to agreeing an approach to implementation that is fair, practical and consistent with the Award as construed in these reasons.

(2) In that process, the parties should have regard to the evidentiary limitations identified in these proceedings, including the variability of call durations reflected in the Telstra data and the absence of precise records of the time spent performing work while on call.

(3) The parties adopt an agreed approach to the treatment of such work for overtime purposes, as a workable and equitable means of implementing the Award in respect of that past practice.

(4) In implementing these reasons, a minimum payment of one hour at the applicable overtime rate is to be treated as appropriate for an on‑call period during which actual duty was required to be performed. The one‑hour period operates as a minimum only, not precluding payment for a longer period in circumstances where the work performed reasonably warrants it.

(1) The matter is listed for directions on 4 May 2026 at 9.15 am.

(2) The parties are directed to confer in good faith as to the practical implementation of this decision.

(3) At the directions hearing, the parties are to report to the Commission on the outcome of that conferral, including whether they accept the recommendations of the Commission.

(4) If agreement has not been reached, the parties are to provide the Commission with their respective positions on a proposed timetable for consultation and implementation.

(5) If agreement cannot be reached on the timetable, the Commission will determine it.