NSW Nurses Assoc. v NCAHS

NSW Nurses Assoc. v NCAHS - [2010] NSWIRComm 1057 - NSWIRComm 2010 case summary — Zoe

[23]

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.

[35]

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.

[48]

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.

[50]

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.

At a glance

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Before

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Judgment (65 paragraphs)

Parties

Cases Cited (7)

Cited By (1)