NSW Nurses Assoc. v NCAHS

LEGISLATION CITED: Industrial Relations Act,1996

Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity (2000) NSWIRComm135. CASES CITED: Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001) NSWIRComm141. Bryce v Apperley (1998) 82IR448 at p.452 Health and Research Employees' Association of New South Wales v Health Administration Coroporation (matter no 295of 1991).

APPLICANT. Mr H Maratheftis and Mr D Steed of the New South Wales Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT Ms S Anderson Solicitor of Anderson Randall Ms J Boot of NCAHS

DECISION: - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN THE MATTER OF: Notification under section 130 by the NSW Nurses Association of a dispute with North Coast Area Health Service re payment of sock and stocking allowances for nurses at Lismore Base Hospital.

1 On 28 April 2010 the New South Wales Nurses Association (the applicant) notified a dispute under section 130 of the Industrial Relations Act 1996 (the Act) against the North Coast Area Health Service (NCAHS) (the respondent). 2 The notification raised two issues in dispute but prior to arbitration one issue was withdrawn by the applicant. The outstanding issue was expressed in the following form. c. Furthermore there has been no laundry allowance has been paid to the nursing staff since 2001. This is also an Award provision. Management are stating that there is a laundry service available to the staff. The laundry allowance is only payable when the uniforms are not laundered at the employer's expense. d. The nursing employees have never been advised that there is a laundry service available off site but no one has been given any details about the service. e. The management are aware of the claim and have made no agreement as to when the retrospective adjustments will be made.

The award applying to the nurses is the Public Health System Nurses' and Midwives' (State) Award. 3 Five conciliation conferences were held without resolution to the dispute therefore hearing dates were set in Lismore for 22, 23 and 24 September 2010. A Notice of Attempted Conciliation was raised and provided to the parties. 4 Evidence was heard on 22 and 23 September and by consent application of the parties, final submissions would be received in writing with the Commission providing the parties with a timetable for the filing and serving of written final submissions. The applicant was to file and serve by 29 September 2010, the respondent by 5 October 2010 with the applicant in reply by 7 October 2010. 5 The applicant was represented by Mr H. Maratheftis of the Union and the respondent was represented by Ms S Anderson solicitor of Anderson Randall solicitors. Applicant's Case.

6 The following persons filed statements/affidavits and were required for cross examination : Ken McIntosh Union Organiser John Essex Storeman Maree Frogley Registered Nurse Gil Wilson Registered Nurse Charmaine Crispin Registered Nurse Karen Anderson Registered Nurse.

An affidavit was filed by Ms Dianne Goldie a registered nurse based at Lismore Base Hospital. Mr Maratheftis sought for the affidavit to be marked as an exhibit even though Ms Goldie was not available for cross examination. Ms Anderson objected to this and I upheld the objection and did not allow the affidavit to be marked as an exhibit. 7 Mr McIntosh stated that he is a Union Organiser with the Health Services Union. In 2004 he was involved in a dispute with the then Northern Rivers Area Health Service ( which later became the NCAHS), when it notified the HSU to advise it was going to commence the laundering of uniforms in house and remove the laundry allowance payable to staff covered under the Health Employees' Conditions of Employment (State) Award. He gave evidence that management as well as employees of the Northern Rivers Laundry Service stated at the time that the laundering of uniforms was not appropriate as it did not have the capacity to press nor the staff available to provide a satisfactory service. The dispute was resolved with the Northern Rivers Area Health Service agreeing to continue to pay the allowance. Since that time there has not been any further dispute on this issue. 8 Mr John Essex filed an affidavit in reply. Mr Essex has worked as a storeman since 2004 at the Lismore Base Hospital. Prior to that appointment he was the Sewing Supervisor in the sewing room responsible for the fitting, ordering and the supply of uniforms, clothing repairs and repairs of curtains. He stated that laundry facilities were not available to staff when he commenced in 1992. He stated that he did not agree with the statement of Ms Janne Boot that laundering services are available to staff for the laundering of their uniforms. He said that the Northern Rivers Linen Service was not in a position to launder staff uniforms as there did not exist any guidelines, policies or the required staff to provide a service.

He also rejected statements of Mr Peter Boyd . Mr Essex restated that there had never been a facility for cleaning uniforms at the Lismore Base Hospital during his employment for use by staff with no protocols, guidelines or procedures in place to provide laundry facilities for use by any staff. 9 Ms Maree Frogley has worked at both Grafton and Lismore Base Hospitals. She has been located at Lismore since 2001. She is required to wear a uniform and has never received payment for a laundry allowance. She stated that she has never been told by management or anyone else that the Area Health Service provided a laundry service for nurses uniforms.

Attached to her affidavit was a copy of the NCAHS Uniform Policy which took effect on 1 July 2008.

As at that date the NCAHS commenced supplying staff with a uniform and therefore was not required to pay a uniform allowance. Under point 7.2 of the Uniform Policy is the following dot point: Laundry : Allowance will continue to be paid as presently done.

She recalled ward meetings held in around July/August 2008 where staff raised the issue of non payment of laundry allowance.

She stated that on 22 July 2009 she sent an email to Mr Wayne Lloyd ( Human Resources Industrial Relations Manager) raising the issue of the non payment of the laundry allowance. A follow up phone call was made and she was told that it " was bigger than Ben Hur."

In her affidavit in reply she reiterated that she had never been made aware of any facility to take her uniforms for laundering and rejected Ms Boot's and Mr Boyd's comment that it was common knowledge that a laundry was available for the laundering of uniforms.

Special nighties for patients in the Intensive Unit at Lismore Base Hospital are sent to the Northern Rivers Linen Service for laundering. The majority of these items are not returned to the Unit. 10 Mr Gil Wilson stated that he had worked at Royal Prince Alfred and St Vincent's hospitals prior to commencing working at Lismore in 2002. He currently works in the Intensive Care Unit and is required to wear a uniform. He has never received a payment for laundry allowance. He has never been told by management or anyone else that a laundry service was provided for the cleaning of nurses uniforms.

In his affidavit in reply Mr Wilson attached a copy of an email dated 25 July 2009, directed to both Ms Boot and Mr Boyd questioning the non payment of the laundry allowance. 11 Ms Charmaine Crispin stated that she completed her training at Liverpool Hospital in 1986 and has worked at Lismore Base Hospital since 2000. She is required to wear a uniform. She has never been informed of a laundry service being available. As part of her responsibilities she conducts the Richmond Network Core Orientation. Information about the availability of a laundry service to Richmond Network staff has not formed part of Core Orientation since 2001.

In her affidavit in reply she disputed the comment made by Ms Boot that it was common knowledge that a laundry was available for use by nursing staff. 12 Ms Karen Anderson stated that she completed her training at Lismore CAE. She worked at Prince Henry Hospital from 1990 to 1995, at Coffs Harbour from 1995 to 2002 and at Lismore Base Hospital from 2002 to present day, currently working in the Intensive Care Unit. She is required to wear a uniform. She has not received a laundry allowance since commencing at Lismore. She stated that she has never been told by management or anyone else that the Area Health Service provided a laundry service for nurses uniforms.

In her affidavit in reply, Ms Anderson stated that she was never made aware of any laundering service for uniforms. It was never raised at core orientation or any subsequent mandatory in-services provided by management. Any service provided by the Northern Rivers Linen Service was in her view for patients. She denied ever seeing a policy or procedure document explaining how uniforms are to be sent to the laundry or reclaiming on return. Hospital supplied uniforms do not come with names or work locations for identification purposes. 13 In their final written submissions the applicant made the following points. The laundry allowance was never paid to nurses at the Lismore Base Hospital and nurses uniforms were never laundered at the expense of the respondent.

Their primary argument was that the meaning of Clause 23(iv)(a) of the award was that a laundry allowance must be paid to nurses whose uniforms are not laundered at the employer's expense. As the respondent's position was that laundry allowance is required to be paid only where laundry facilities are not made available by the Lismore Base Hospital, the applicant submitted that no linen service was made available to nurses. It was the applicant's view based on the inspection that the Commission held at the Northern Rivers Linen Service that it does not have the capacity to launder nurses uniforms from the Lismore Base Hospital to the required standard or at all. They submitted that Ms Christine Cole, the Acting Supervisor stated during the inspection that the ironing of uniforms would require extra staff and that the service does not have adequate equipment to launder nurses uniforms. 14 There was no record of communication, memorandum or notice to its employees by the respondent of the availability of the Northern Rivers Linen Service for the laundering of nurses uniforms. No mention was made of such a service at the Core Orientation of new staff. There was no common knowledge of such a service being available to nurses. It was the applicant's submission that if common knowledge existed and there are over five hundred nurses located at Lismore Base Hospital then it borders on the miraculous that not one nurse since 2003 had ever elected to have their uniforms laundered at the expense of the respondent. There was no publication of any process, policy or procedure for nurses uniforms to be laundered by the Northern Rivers Linen Service. 15 Exhibit Q identified options in relation to the laundry allowance and nurses at Lismore Base Hospital. Ms Boot of the respondent could not remember receiving a response from the Chief Executive officer. It was the applicants submission that since 2002 the respondent was aware of its obligations but had failed to comply with those obligations. That Ms Boot stated that the service could be "re-activated" is an acknowledgment that there has been no such system or process implemented or even in place. 16 Whilst the Lismore Base Hospital operates seven days a week, the Northern Rivers Linen Service only operates Monday to Friday. It was the submission of the applicant that the hours worked undermines the ability of the Northern Rivers Linen Service to launder nurses uniforms. There was no evidence of any trial or assessment undertaken to test the capacity of such a service. 17 The Staff Appointment Form is only an internal document and is used for processing by management. Such forms were not seen by the individual nurse. 18 It was part of the applicant's submission that the onus to communicate the existence of a laundry service fell on the respondent. Nurses have to be made aware that a laundry service exists for their uniforms before they can elect to use such a service. That the North Coast Linen Service exists does not constitute the availability of a service for the laundering of nurses uniform. 19 The applicant in their written submission in reply stated that their literal interpretation of the laundry allowance clause was coherent within its context; unambiguous; and produces a meaningful result intended by the clause. They argued that should the Commission reject the applicant's interpretation of the clause and instead accept the respondent's interpretation, then it is for the applicant to prove on the balance of probabilities, that it is more probable than not that the respondent did not direct nursing staff at the Lismore base Hospital to launder their uniforms at a service provided by the hospital, provide a laundry service for the laundering of those uniforms at the employer's expense for the period from 17 May 2004 until 16 May 2010.

The applicant stated that there was no evidence such a direction taking place. No evidence of a direction of mandatory use of a laundry service. Whilst both Ms Boot and Mr Boyd made reference to the availability of the Northern Rivers Linen Service no mention was made that the use of the service was required, mandatory or directed. The respondent's contention that it required nursing staff to launder their uniforms at the Northern Rivers Linen Service contradicts Ms Boot's evidence that if nursing staff wished to have their uniforms laundered, a system for collection and return of uniforms would be re-activated. No laundry service was available for the specified period. Respondent's Case.

20 The respondent had two witnesses who were both required for cross examination. Ms J Boot Executive Director Workforce Development. Mr P Boyd Acting Human Resources/Industrial Relations Manager. 21 Ms Boot stated that she had commenced with the NCAHS in 2001. The NCAHS was known as the Northern Rivers Area Health Service when she commenced employment and on 1 January 2005, the service amalgamated with the other Health Services in the region to become the NCAHS. In her view the issue of laundry allowance has been "on the table" at Committee meetings since at least 2002.

She stated that she is aware that the applicant is seeking back pay for nurses who have not been paid what the applicant states is their entitlement in accordance with the Public Health System Nurses &Midwives (State) Award 2008. Prior to this award being made the award was the Public Hospital Nurses (State) Award. It was her understanding that this award has the similar if not the same provisions in relation to relevant entitlements for laundry allowance. It was also her understanding that the laundry allowance was not paid to staff specifically at the Lismore Base Hospital because laundry facilities for the laundering of their uniforms was available for use by staff and it was common knowledge of the staff that it was available for staff.

The Northern Rivers Linen Service as it is now known is managed by the NSW Health Support, however it is a NSW Health facility and is located at Goonellabah which is a few kilometres away from the Lismore Base Hospital. The Northern Rivers Linen Service launders all linen, scrubs gowns, pyjamas and nighties from the emergency Department and Intensive Care Unit and particular items from the maternity wards.

Ms Boot stated that the decision of the NCAHS on 20 May 2010 to commence paying the laundry allowance was an act of good faith. The decision to commence payment of this allowance was not a concession that the Lismore Base Hospital did not have laundry facilities but was done on the basis that the Area Health Service did not have a current system in place for the collection and return of staff uniforms for laundering.

It was the view of Ms Boot that Mr G Wilson in his position as Secretary of the NSW Nurses Association sub branch would have been aware of the laundry allowance entitlement where there were no laundry facilities. Mr Wilson attended the Site Consultative Committees from March 2005 onwards.

Annexure "F" is the minutes of a Site Consultative Committee held on 19 June 2003. Under Point 8 Items without notice is expressed the following: Laundry Allowance : HREA laundry allowance is being dealt with at an Area level and will be raised at Joint Consultative Committee. Denice Fletcher noted that if staff want it, the laundry system can be reactivated.

Denice Fletcher was at the time the Acting Executive Officer.

Ms Boot stated that she whilst she was unaware of the dispute of May 2004 raised in Mr McIntosh's statement it does acknowledge that there were laundry facilities available at the Lismore Base Hospital. She also disagreed with Mr McIntosh that there is no capacity to launder uniforms. If a staff member required their uniform to be laundered then it could be done at the Northern Rivers Linen Service. 22 Mr Boyd stated that he commenced with the NCAHS (and its predecessors) in 1994 and is currently holding the position of Acting Human Resources/Industrial Relations Manager. He advised he deals with employment issues and disputes, provides award advice and provides advice to managers in relation to investigations into employees. It was Mr Boyd's view that with respect to the laundering of uniforms the employer may do one of two things. The employer may provide for those staff required to wear a uniform a laundry to clean those uniforms at no expense to the employee or where the laundry facility is not provided, pay an allowance to offset the expense of laundering their uniform.

Mr Boyd stated that nurses at Lismore Base Hospital did not receive payment of the laundry allowance because there were laundry facilities available for use by nursing staff.

Mr Boyd was unaware of any decision in 2004 to cease the payment of the laundry allowance as attested by Mr McIntosh. He stated that he had reviewed the documentation held by the respondent and could find no reference to this dispute.

Mr Boyd stated that there were currently 589 nurses at the Lismore Base Hospital that would be potentially eligible to receive a laundry allowance. 23 In final written submissions the respondent stated that the Commission should not take the literal approach to the interpretation of the award as suggested by the applicant ie "that the laundry allowance is only payable when the uniforms are not laundered at the employer's expense." 24 The respondent argued that in line with the authority of The Health and Research Employees' Association of New South Wales and the Health Administration Corporation IRC 295/1991 the laundry allowance is not payable where: a. The employer directs and requires the employee to launder the uniforms at a service provided by the employer and at the employer's expense; and b. An employee does not act in accordance with that direction. 25 It was their submissions that clause 23(iv)(a) does not meet the test of making the clause capable of an unambiguous meaning. It was their view that where a hospital provides a uniform to nurses under the clause and directs that the uniform is to be laundered by a service provided by the hospital, then the laundry allowance is not payable. It was their case that at no time were nurses at the Lismore Base Hospital given the option to elect whether or not they would utilise the laundry facility provided by the respondent for the laundering of uniforms. They stated that it was for the applicant to prove on the balance of probabilities, that it was more probable than not, that the respondent did not direct nurses at the Lismore Base Hospital to launder their uniforms and provide a laundry service for the laundering of those uniforms at the employer's expense between the dates of 17 May 2004 and 16 May 2010. 26 For nurses located at the Lismore Base Hospital for the period 17 May 2004 to 30 June 2008 were paid a uniform allowance and had to supply their own uniform. From 1 July 2008 up until 16 May 2010 nurses were provided with a uniform under a new uniform policy. Nurses who gave evidence for the applicant had worked at other hospitals and had either received a laundry allowance where no laundry service was provided or alternatively provided a laundry service at the expense of the employer. 27 Exhibit Q evidences a disagreement between nurses and management of the Area Health Service with the respect to the payment of the laundry allowance. 28 It was the respondent's position that this was not a dispute where the respondent was unaware of its requirement to pay the laundry allowance under the award but that they did not pay the laundry allowance because during the subject period the respondent required nursing staff to have their uniforms laundered at the Northern Rivers Linen Service. It was submitted that the laundry allowance was not paid because the nurses could have their uniforms laundered at the Northern Rivers Linen Service if they chose and that this argument can be verified somewhat as not one single nurse has claimed laundry allowance. 29 The respondent also stated that the Commission should not accept the applicant's view that a de-activated laundry is no laundry service at all but that there was no procedure in place for the laundering of nurses uniforms and that it was this "procedure" that could be "re-activated" if requested by staff. 30 The respondent submitted that the fact that no nurse had their uniform laundered at the Northern Rivers Linen Service supports an inference that nurses knew of the availability of the Service and as a group had decided that the laundry facilities were not adequate to meet the needs or standards of laundering their uniforms. 31 The respondent also raised the issue that they were at a disadvantage in the gathering of documentation pertaining to this matter, as a consequence of the passing of time and the failure of the applicant to file this dispute at an earlier time and the amalgamation of different services within the Northern Rivers region. 32 The respondent was also critical of the applicant for their failure to call only four nurses all from the Intensive Care Unit when there are 589 nurses. 33 In conclusion the respondent submitted that the applicant bears the onus of proof and that the laundry allowance was not paid because the Northern Rivers Linen Service was provided by the NCAHS for nurses to launder their uniforms at the employer's expense and that it was the choice of the nurses at Lismore Base Hospital not to comply and have their uniforms laundered by the employer at the employer's expense. 34 The respondent submitted an alternative argument in that if the Commission finds in favour of the applicant then Orders are made that define the parameters of Clause 2 of the Amended Draft Orders and that the period of back pay be reduced to three years only based on the evidence eof Mr John Essex that as at 2005 the respondent were aware of the Uniform Policy and the laundry allowance based on his discussions about the laundry allowance. Also the evidence of Ms Frogley that she became aware of the issue in July 2008.

35 The power for the Commission to interpret an industrial instrument is found in section 175 Powers of Interpretation of the Industrial Relations Act, 1996 states: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).

36 The relevant award in these proceedings is the Public Health System Nurses' and Midwives (State) Award 2008. Whist the title of proceeding awards has varied the specific words in the award pertaining to laundry allowance has not varied to any relevant degree since the public system nursing award was published in 2002. The current award clause 23- Uniform and laundry allowance sub-clause (iv)(a) states: If, in any public hospital or public health organisation, the uniforms of an employee are not laundered at the expense of the employer, an allowance as set out in Item 14, of Table 2 of Part B per week shall be paid to the said employee. Provided that this allowance is not payable during any period of leave which exceeds one continuous week. (b) This allowance is also payable to employees providing direct clinical care and who are not required to wear a uniform. 37 The applicant union filed Amended Draft Orders on 27 September 2010 in the following form: The Commission orders ; 1. The North Coast Area Health Service has failed to comply with the Uniform and Laundry Allowance clause of the Public Hospital Nurses'(State) Interim Award (Serial C 1490) and all successor awards for the period 17 May 2004 to 16 May 2010. 2. The parties are directed to confer within 28 days of such order to agree on the resolution of the failure to comply with the award. 3. The notifier is directed to provide the Commission with the outcome of Order 2 within 7 days. 4. Any other Order the Commission deems fit.

The Amended Draft Orders filed after the evidence for the applicant and the respondent had closed were not objected to by the respondent. 38 Historically it would seem that employees based at Lismore Base Hospital required to wear a uniform, had the uniform laundered on site up until approximately 1988-90. That service then ceased when there was a break down in some machinery. Since that time staff have laundered their own uniforms. For nurses they purchased their own uniforms ( which remained their property) and received a uniform allowance up until 2008.

In mid 2008, there was a change in uniform policy state wide. Uniforms were then supplied by their employer and remained the property of the employer and therefore the uniform allowance ceased to be paid.

Exhibit 0 in proceedings was the NCAHS UNIFORM POLICY (date to take effect 1 July 2008). It outlined the uniform policy as laid down by the NCAHS. Under subclause 7.2 it states in part: With respect to the uniform award entitlements under the 2 major awards, the NCAHS adopts the following principles; Laundry: Allowance will continue to be paid as presently done.

Evidence from Ms Boot was that the allowances that were currently being paid (ie laundry allowance) will continue to be paid. She went on to state that all hospitals in the NCAHS, except Lismore received the laundry allowance.

Mr Wilson made comment that it was when the uniform allowance disappeared from the pay slip that nurses started to come to him complaining of the loss of the uniform allowance (when they hadn't received a full uniform), and the non payment of the laundry allowance.

39 The principles for award interpretation are well established. In Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135, the Full Bench said: 44 The reliance on the subjective intention of the parties in the interpretation of the industrial instruments involves error in principle thus requiring appellate intervention: see, for example, House v The King (1936) 55 CLR 499. Further, we consider that, by adopting that approach, the Commissioner erred by failing to have sufficient regard to the actual terms of the instruments being construed, namely the terms of the award and the agreement. Nor was the Commissioner's approach consistent with the normal approach to interpretation, including interpretation of awards, which requires the particular words or phrases under consideration to be considered in their context (for example, Fox v GIO Australia Ltd [2002] NSWIRComm 318 and Perisher Blue Pty Ltd v Australian Workers' Union (1999) 91 IR 274 at 283). The evidence of Mr Jones does little to provide material which is likely to assist in the construction of the instruments, save to the extent that it placed in evidence part of the history of the various provisions (which is a matter often relevant to the interpretation of awards and agreements: Perisher Blue at 284). 45 We note that the Commissioner did correctly endeavour to give a purposive construction to the relevant provisions but the attempt was affected by the reliance on the subjective intention of the parties.

46 When the respective instruments are considered, having regard to the orthodox approach to interpretation (see, for example, the authorities cited above; Kingmill Australia Pty Ltd T/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 at 228 - 230; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159 and CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408), the resolution of the issues in this matter is relatively straightforward. The plain words of the agreement permit a relief day worker to elect to be paid in accordance with the award. This interpretation is derived from the words "or pay as per roster" which is found within the clause entitled "12 hour roster" in the agreement. This approach does not require too literal an interpretation of the instrument. In any event, the same conclusion is reached whatever analytical approach to the construction is adopted.

40 Therefore as expressed in the approach to interpretation as found in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerk's Union of Australia, New South Wales Branch [2001] NSWIRComm141 where it was confirmed that the interpretation relies on " the actual words used and their plain, ordinary English meaning" taken in context. 41 State Awards, like any legal documents, must primarily be interpreted by looking at what is actually said. In Bryce v Apperley (1998) 82IR448 the Full Bench of the Commission ( Hungerford, Marks and Schmidt JJ) expressed the position (at p.452) thus: "... In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning..." 42 In Health and Research Employees' Association of New South Wales v Health Administration Corporation (matter no 295 of 1991) Maidment J. heard on appeal from a Decision by Redman C. which went to a claim of non payment of a laundry allowance by Bankstown Hospital.

The sub clause in question was : 22. UNIFORMS AND PROTECTIVE CLOTHING. (i) (d) If the uniform of an employee is not laundered at the expense of the hospital, an allowance of $2.40 per week shall be paid.

By interlocutory judgement on 29 September 1992, Maidment J stated: The clause, literally interpreted, requires the employer to provide uniforms which, upon consideration of the clause as a whole, remain the property of the employer. The employer is entitled to direct and require that a uniform provided under the clause be laundered by a service provided by the hospital. In such a circumstance an employee who does not act in accordance with such a direction would not be entitled to the payment of the laundry allowance. In circumstances such as the present, in which the employer allows an employee to elect whether or not the hospital service be utilised, the allowance is payable to those who do not choose to use the hospital service. The operative words of the clause are clear they being, " if the uniform...is not laundered at the expense of the hospital", it is at the option of the employer whether or not the uniforms are required to be laundered at the expense of the hospital. The failure of Bankstown Hospital to launder the employees' uniforms at the expense of the hospital renders it liable to make payments pursuant to cl.22(i)(d) of the Award. 43 The primary submission of the applicant is that the meaning of clause 23(iv) (a) of the award, is that a laundry allowance must be paid to nurses whose uniforms are not laundered at the employers expense. Ultimately, the laundry allowance must be paid irrespective of whether the employer makes a laundry service available or not. In a further verbal submission, the applicant stated that if a nurse was offered by the respondent to have his/her uniform laundered but that offer was rejected by the individual nurse, then that nurse would not be entitled to receive the laundry allowance.

Their alternative argument was that there was no linen service made available to nurses. 44 The respondent 's submission was that where the hospital provides a uniform to nurses under the clause and directs that the uniform is to be laundered by a service provided by the hospital, then the laundry allowance is not payable. If a nurse chooses not to avail themselves of the laundry service provided by the hospital as directed by the employer, then the allowance is not payable. It was the respondent's position as expressed in their written final submissions, that they did not pay the laundry allowance because during the subject period the respondent required nursing staff to have their uniforms laundered at the Northern Rivers Linen Service. 45 It was the clear comment of the four registered nurses who gave evidence that there had been no direction be it verbal or written from management of the Lismore Base Hospital for them to have their uniforms laundered by their employer. All four nurses who are required to wear a uniform, had worked within the public hospital system for long periods in several hospitals in New South Wales. All had been employed at the Lismore Base Hospital since at least 2002. No witness could point to any induction programme at the Lismore Base Hospital that they had attended, that expressed the management requirement that nurses uniforms be laundered at an outside facility. None of the four witnesses had received a laundry allowance whilst located at the Lismore Base Hospital until May 2010. 46 It was the evidence of Ms Boot that to the best of her knowledge all hospitals in the NCAHS paid their nurses a laundry allowance except the Lismore Base Hospital. She confirmed that nurses at the Ballina Hospital get paid the laundry allowance because there is no facility available to the nurses for laundering of uniforms. 47 In cross examination Ms Boot was asked: Q. I'm also in the country area and I haven't got my whole wardrobe with me, Ms Boot. A. What I am suggesting is that, you know, a system could be put in place to make sure that those uniforms are laundered and back in time for the people to wear them. Q. Well, what was the system prior to the commencement of these proceedings prior to May ? A. There was no system, the laundry was available should anyone take up the offer to use the laundry.

COMMISSIONER Q. How many people have taken it up in your period of time since you have been there ? A. I don't believe that there's been any Lismore Base Hospital staff members taking it up, Commissioner. Q. And how many people, lets cover this to nurses, how many nurses are employed at Lismore Base Hospital ? A. I think there's over 500. Q. And you have been there since 2001 ? A. Correct Q. And not one person out of about 500 in near ten years has taken up the service ? A. Not one has chosen to take up the service.

MARATHEFTIS Q. How would they have made that choice, Ms Boot ? A. I don't know how they would make that choice. Q. Is there some form, some sort of an election that the nurse would've signed to say, I do not wish to take up the laundry service ? A. There is only the staff appointment form that the supervisor fills out. That's the only form that I am aware of. Q. And you were present yesterday when questions were asked about the staff appointment form to a number of witnesses and all replied they're never seen that form, is that correct ? A. I believe so. Q So my original question was how would a staff member have chosen not to use the facility ? A. They all chose not use the facility by not using it. and Q. But did you offer the use of the laundry to the staff ? A. In my opinion it's been historical and known to the nursing staff, the reason why they don't get laundry allowance at Lismore Base Hospital is because they can utilise the facilities of a laundry. 48 In considering all the evidence in this matter I do not accept the respondent's evidence that it was known by nurses at the Lismore Base Hospital that there existed for their use a laundry service. No witness for the applicant's was aware such a service existed or that they were required to use it. 49 The NCAHS is an organisation with a large number of employees working over many sites providing health care to the general public. It has to because of its size, operate by expressed policies and procedures covering many topics yet not one witness for the respondent could provide such a written policy or had seen any directive /policy that expressed such a facility existed and it was required to be used by nurses at the Lismore Base Hospital. 50 It is difficult to accept and I do not, that a "known" laundry service existed yet had not been taken up by even one nurse over at least the last ten years even when dealing with such a numerically large establishment as the Lismore Base Hospital. . When asked by the Commission as to whether they had ever seen a document directed to nurses located at the Lismore Base Hospital that communicates that a laundry service exists and is required to be used, neither Ms Boot or Mr Boyd could answer in the affirmative. Mr Boyd had commenced working at the Lismore Base Hospital in 1994.

The following cross examination of Ms Boot I believe is relevant :

Q. But did you offer the use of the laundry to the staff?

A. In my opinion it's been historical and known to the nursing staff, the reason why they don't get laundry allowance at Lismore Base Hospital is because they can utilise the facilities of a laundry.

Q. That might be an historical thing but what about new staff, how would they know , how would it be common knowledge to them . Sorry that's there (sic) questions. How would the new staff know about the laundry facility ?

A. Through the fact that they weren't getting the laundry allowance. You would assume that they would ask questions.

A. Sorry, if I can finish. We have acknowledged that it is the responsibility of the area health service to direct staff, I'm saying that historically it's been known that there's been a direction for staff to avail themselves of the laundry service and therefore they weren't paid the laundry allowance.

Q. My original question, how would a new staff member know if there's this service available ?

A. They may be told at ward induction, that's true that's been referred to as area or local orientation. They may be referred to it when they're going through payroll orientation. I don't attend orientation, I don't attend induction so I can't comment.

No witness from the applicant supported this response. No witness was brought by the respondent to support such a response. 51 In my view it was clear from Ms Boot's evidence that there was no system or process in place to provide a laundry service for the nurses. Mr Wilson gave evidence with respect to the set procedure that took place when he worked at St Vincent's Hospital as to the laundering of his uniforms. 52 It is my finding that the reason no nurse had taken advantage of utilising the laundry service was because they had never been directed by management requiring nurses to use the laundry service. In reality it did not exist.

From the evidence in this matter, it is my finding that such a laundry service and its necessary accompanying procedures had never been published or publicised by management and no nurse had been required or directed by management to use this mythical service.

No documentation was provided to the Commission indicating that a nurse had made a choice as to whether he/she accepted or not the service to launder their uniforms. I accept the submission of the applicant that the Staff Appointment Form is a internal document that is completed not by the individual nurse but by management. 53 Taking into consideration the comments of Maidment J in point 41 above that I believe are to the point in this matter, and considering the words expressed in the sub-clause, it is my finding that the respondent has not complied with section23 (iv)(a) of the Public Health System Nurses' &Midwives (State) Award 2008.

This sub-clause requires the employer to pay an allowance to the employee if the uniforms are not laundered at the employers expense.

The nurses uniforms have not be laundered at the expense of the Lismore Base Hospital so therefore the laundry allowance must be paid to the employee. 54 I reject the submission of the respondent that a laundry service was in existence and nurses had been directed and therefore required by management to utilise such a service.

No evidence was brought by the respondent to support this submission that there exists a direction and a requirement from management for nurses to utilise such a service. As previously stated if management had made such a direction then some paper trail would exist and brought before this Commission. 55 I therefore make the following Order : ORDER 1. That the North Coast Area Health Service has failed to comply with the Uniform and Laundry Allowance clause of the Public Hospital Nurses' (State) Interim Award and all successor awards for the period 17 May 2004 to 16 May 2010. 2. That the parties are directed to confer within 28 days of the date of this Order to agree on the resolution of this failure to comply with the Award. 3. The notifier is directed to provide the Commission with the outcome of Order 2 within 7 days. D. RITCHIE COMMISSIONER

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