Nurses and Midwives Association v Justice Health and Forensic Mental Health Network

Industrial Relations Commission (NSW)|2012-12-17|Before: Boland J, Harrison DP, Health J

INTERLOCUTORY DECISION 1The New South Wales Nurses' and Midwives' Association ("The Association" or "appellant") has sought leave to appeal and, if leave is granted, to appeal from a decision of Harrison DP in which his Honour upheld the right of Justice Health and Forensic Mental Health Network (a Division of NSW Health) ("the respondent") to cease paying for meal breaks taken by nurses at the Forensic Hospital, Malabar: Notification under section 130 by Justice Health and Forensic Mental Health Network (a Division of NSW Health) of a dispute with NSW Nurses and Midwives' Association re paid meal breaks [2012] NSWIRComm 119. 2Pending the outcome of the appeal, the Association has sought a stay order that the respondent continues, "to provide paid meal breaks to nursing staff working at the Forensic Hospital at Long Bay...." This interlocutory decision concerns the stay application.

Decision of Harrison DP 11Having outlined the background to the dispute, Harrison DP referred to the relevant Award provision dealing with meal breaks, namely, cl 4(ix): (ix) Each employee who works in excess of five hours must have a break of not less than thirty minutes and not more than sixty minutes for each meal occurring on duty as follows: Breakfast-between 6am and 9am Midday Meal-between 12 noon and 2pm Evening Meal-between 5pm and 7pm Night Meal-between 10pm and 2am. Employees must not be required to work during meal breaks as a matter of routine practice unless mutually agreed at the local level. Provided that any time worked during such break shall count as working time and unless the employee is permitted to finish duty early on the same shift then overtime becomes payable once the total ordinary work time of the shift has elapsed. Provided further that where practicable an employee engaged to work for five hours or less in any one shift may elect not to take a meal break as otherwise provided for in this subclause without penalty to the employer. The term "where practicable" encompasses regard being paid to the service requirements of the employer. 12Harrison DP noted at [12] that the practical and legal effect of the Award provision was that where a nurse was required to work during a meal break, whether that be occasional or by local agreement as a matter of routine practice, entitlement to payment arises. 13His Honour then addressed the Association's contentions in support of retaining the paid meal break. In respect of the contention that the respondent was prevented from removing the paid meal break because of a no extra claims provision in the Award, his Honour considered the respondent was not so constrained. 14In respect of the contention that the practice of a paid meal break for nurses in the Corrective System is a "crystallised custom and practice", Harrison rejected it, essentially on the basis that the Forensic Hospital constituted a different environmen to that of a gaol and this involved "a paradigm shift in the way in which the patients are treated." 15The Association submitted before his Honour that employees were informed on engagement that they would have the benefit of a paid meal break and, accordingly, this entitlement was specifically imported into the contract of employment. Harrison DP rejected this submission, essentially on the basis that the Award was the relevant source for determining whether meal breaks were to be paid or unpaid. 16As to arguments of the Association going to "industrial merit" his Honour held "There is no impediment on the basis of industrial merit or practicality to the employer arranging shifts on the basis of an unpaid meal break." 17At [98]-[103] of his decision the Deputy President summarised his conclusions in the following terms: [98] For the reasons discussed above I find in favour of the applicant. [99] Pursuant to s 175 of the Act I determine that payment for time worked is regulated by the Award. There is no other legal entitlement. [100] I find that the notice and consultation undertaken by the parties has been reasonable in all the circumstances to bring to an end any agreement implied or notional that nurses at the Forensic Hospital work through meal breaks as a matter of routine practice. [101] I direct management to put in place an appropriate system for supervisors to clearly record any and all requirements for a nurse to work through a meal break and for the release of a nurse to an off duty area for the purpose of a meal break. [102] The application by the Association to refer the Award for variation to include paid meal breaks is refused. [103] I so decide.

Commencement of new rosters 18Following his Honour's decision, on 8 November 2012 nursing staff were advised of the decision and that: This means all nurses in the Forensic Hospital, irrelevant of when you commenced employment, will work 8 hours plus have a minimum of 30 minutes unpaid meal break, unless required to work during your meal break. The management will work with you in determining the start and finish times of the new shifts which will commence in December 2012.... 19In her evidence, Ms Neville stated: The new rosters are scheduled to commence from Monday, 31 December 2012. They must be posted for display a minimum of two weeks ahead to comply with the applicable award. Justice Health's electronic roster ordinarily displays the rosters a month in advance. It is the intention of Justice Health to display the new rosters this week to commence on 31 December 2012, however Justice Health has until 14 December 2012 to comply with the roster notification requirements in the Award, at the latest. If a stay is granted, the roster system will be delayed and this will cause significant disruption to the business, as Justice Health will need to reconfigure the entire roster for the majority of the nurses employed at the Forensic Hospital in a short space of time. This may result in nurses not receiving a roster in keeping with their wishes or personal commitments. I have been informed by Ms Eason and verily believe that some nursing staff have, in anticipation of the new rosters, made arrangements for child care and other personal matters based on the proposed new arrangements. I am concerned that a stay, at this time, may cause significant inconvenience to some nursing staff.

Appeal grounds 20The appellant asserted in its notice of appeal that Harrison DP erred in respect of each of his reasons for decision, including his reasons regarding no extra claims, long standing custom and practice, different circumstances applying at the Forensic Hospital than hitherto had been the case, representation made to individual nurses regarding payment for meal breaks and industrial merit.

Appellant's submissions on stay 21Supported by an affidavit of Christopher Mark Blair, Industrial Officer of the Association, the Association submitted the Deputy President's decision disclosed clear errors. For example: (a) His Honour refused to find that existing employees were entitled to provision of paid meal breaks on the basis of a "crystallised custom" notwithstanding of the fact that the practice of providing paid meal breaks had been in place for many decades. The basis of his Honour's finding appears to have been that the custom could not be assumed that the custom or practice would apply at the Forensic Hospital even though many employees previously employed in Justice Health continued their employment at the Forensic Hospital. (b) His Honour failed to find that existing employees were entitled to provision of paid meal breaks of the basis of express representations made at the commencement of employment in circumstances in which there was uncontested evidence of representations made to employees that they would be provided with paid meal breaks as a condition of employment. The basis of his Honour's finding appears to have been that management had a "right to organise" or the contract could be "altered by agreement" even though there was no suggestion or evidence of agreement to alter existing conditions. (c) His Honour failed to find that the employees were entitled to be paid during meal breaks under clause 4(ix) of the Award even though the evidence demonstrated that nurses at the Forensic Hospital were not provided with a genuine break from work because they were unable to leave the workplace for breaks and could be and were called upon to respond to incidents and to support other staff. (d) His Honour erred in failing to find that the employees at the Forensic Hospital should, as a matter of industrial merit, continue to be provided with paid meal breaks in circumstances in which the evidence demonstrated that they were not provided with a genuine break from work because they were unable to leave the workplace for breaks and could be and were called upon to respond to incidents and to support other staff. 22The appellant further submitted the balance of convenience favoured granting the stay order relying, firstly, on cl 48 of the Award as preserving the status quo. In any event, it was submitted, the balance of convenience and the competing rights of the parties favoured the granting of a stay for reasons including: (a) ceasing provision of the paid meal break will result in alterations to the rosters of nursing staff at the Forensic Hospital causing inconvenience to staff, including requiring changes to child care, travel and other personal arrangements. It is inherently undesirable that employees be required to alter childcare, travel and other personal arrangements pending appeal in circumstances in which they will be required to alter those arrangements again should the appeal be successful; (b) some employees will be affected by the proposed roster changes in a manner that may cause them to have no choice by to leave their employment. In circumstances in which employees may be forced to take the irreversible step of ceasing their employment as a result of the decision below in the circumstances in which that decision is challenged on appeal, the balance of convenience favours the granting of a stay preserving the status quo pending the determination of the appeal; (c) Justice Health recognised its obligation to maintain the status quo following the dispute in relation to paid meal breaks emerging in November 2011 and it is appropriate that Justice Health be required to continue to abide by the status quo arrangements in the Award. Justice Health has not produced any evidence of that any irreparable harm will be caused by delay in the introduction of the proposed new rosters or removal of paid meal breaks.

Respondent's submission on stay 23The main submissions of the respondent on the question of balance of convenience were that: (a) Justice Health has been attempting to bring an end to the non-Award practice of Paid Meal Breaks for nearly 5 years. The cost to the public purse for paying nurses when they are not working is significant. Further, Justice Health was under a specific directive not to continue the practice. (b) Having provided more than adequate notice of the cessation of the practice, Justice Health could have simply stopped the payments - it would not have been in contravention of any industrial instrument in doing so. If the nurses who received Paid Meal Breaks regarded the payment as a fundamental term of their contract of employment (which is denied), they could have pursued a remedy. However, Justice Health in the interests of industrial cooperation sought the assistance of the Commission to resolve this long-running dispute. (c) Justice Health has made partial progress by not providing Paid Meal Breaks for new employees or casuals. The effect is that nurses performing the same shifts are receiving different payment. (d) Having now obtained a determination in its favour, Justice Health is entitled to put to an end to this costly and unevenly applied non-Award practice. (e) The consultation process for new rosters has already been undertaken during which there has been no opposition from nursing staff. The "indications of concerns" from "some members" referred to in Mr Blair's affidavit have not been vocalized to Justice Health. (f) That process ought not be delayed pending the appeal. Convenience favours the implementation of a rostering and wages system at the Forensic Hospital which in accordance with award provisions laid down by this Commission. (g) If on appeal the Full Bench makes upholds the appeal or varies its terms, it is not a matter where the eggs cannot be unscrambled. It would be a simple matter of reimbursing those nurses who would, but for the Decision, have continued to receive Paid Meal Breaks. This is not a difficult task. There is no concern that Justice Health would not be in a position to make those back payments if so ordered. (h) In terms of rostering, if the appeal is successful it is a matter for Justice Health as to whether they would revert to the extant rostering arrangements or continue with the new ones. As long as notification of any changes was done in accordance with the Award, there would be no impediment to such changes. (i) On the other hand, if the appeal is unsuccessful, Justice Health will have little or no capacity to seek re-imbursement of the Paid Meal Breaks from the nurses to whom it has been paid. This will particularly be the case if some of the nurses are by that stage no longer working for Justice Health. The cost saving delivered by the Decision will be lost for that interim period until the Appeal judgment. 24On the merits of the appeal, the respondent submitted: (a) the Decision of Deputy President Harrison is unlikely to be disturbed on appeal because the following findings in the Decision are soundly based on industrial merit and coherence with the Award: (i) Paid Meal Breaks in forensic hospitals was an anomaly. (ii) Unpaid meal breaks are the industrial norm. (iii) Paid Meal Breaks are inconsistent with the Award. (iv) As a matter of industrial merit, an employee is entitled to a meal break and only if they are required to work during that break should they be paid. (v) Justice Health has given adequate notice to the Association and its nurse employees at the Forensic Hospitals that the practice of Paid Meal Breaks was to be discontinued. (vi) The resistance to change does not outweigh management's right to organize the hospital in the most efficient manner. (vii) The No Extra Claims provisions of the Memorandum of Association do not apply as the dispute has been "alive" since November 2008. (viii) The custom and practice argument is not sustainable since the practice emerged when the hospital was located inside the gaol and its abolition has been on notice since the opening of the separate facility which now houses the Forensic Hospital. This is underscored by the change from a incarceration model to a therapeutic one on the opening of the Forensic Hospital.

Relevant principles 25The power to stay decisions pending determination of an appeal is found in s 190 of the Act: 26If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission. The relevant principles governing this discretionary power were set out by Wright J, President in Re Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 at [18]-[19]: [18] The principles relevant to the grant of a stay pending the hearing of an appeal against a decision of a member of the Commission pursuant to s 190 of the Act are now well settled: see, for example, the judgment of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, as adopted by the Industrial Commission of New South Wales in Court Session in Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178. See also the recent judgment in Green v Brown (2000)102 IR 30. It is clear that special circumstances are not required for the grant of a stay, it being sufficient that the applicant demonstrates a reason or an appropriate case to warrant the relevant exercise of discretion. Although that very limited criterion has been established here, nevertheless, as the authorities make clear, that consideration may be merely the initial consideration as to the grant of the stay. In other words, should that limited criterion or test not be satisfied then the stay application fails in limine. However, should it be satisfied then there may very well be other factors which require consideration. These considerations are helpfully set out in the detailed discussion of the principles set out in the judgment of the Court of Appeal in the first case referred to (at 694-695) in the following terms: There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin v Marac Finance Australia Ltd (unreported, Court of Appeal, 4 March 1985). The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic (unreported, Court of Appeal, 21 December 1979). The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. Sometimes as a condition of the grant of a stay, where funds are available, a court will impose on the applicant the payment of the whole, or part, to the judgment creditor: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184... Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay ... Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of the stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. [19] I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter: (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 27These principles have been adopted in subsequent decisions in this jurisdiction: see Broken Hill Chamber of Commerce and others v Construction, Forestry, Mining and Energy Union (New South Wales Branch) and others [2002] NSWIRComm 244; (2002) 118 IR 183; Adams and anor v Noakes and anor [2005] NSWIRComm 170; Surfing Hardware International Holdings Pty Ltd v McCausland [2006] NSWIRComm 276; (2006) 156 IR 352; Qureshi v De Haas [2009] NSWIRComm 46. See also Campbells Cash and Carry Pty Limited and National Union of Workers, New South Wales Branch [2001] NSWIRComm 79; (2001) 104 IR 400 where Walton J, Vice-President stated at [63]-[65]: [63] The filing of an appeal per se does not provide a sufficient basis for the grant of a stay. The determination of whether a stay will be granted involves an exercise of the discretion of the Commission. Having regard to the discussion of the foregoing principles, the question is whether the appellant has demonstrated a proper basis for the grant of an application for a stay. In other words, the question is whether the applicant for a stay has demonstrated an adequate reason for, or an appropriate case to warrant, the exercise of the Commission's discretion to grant a stay of the decision at first instance. [64] In the exercise of that discretion, the Commission will have regard to a variety of considerations, including the balance of convenience and the competing rights of the parties. In this matter, it is also appropriate to have regard, in a preliminary way, to the appellant's prospects of success. Both counsel argued the prospects of success of the appeal in relation to the application for a stay. The issues in the appeal proper are of narrow compass. It would also appear necessary to consider the prospects of success in order to properly assess the balance of convenience. [65] The assessment of the Commission as to the prospects for success of the appeal must be necessarily preliminary. The Commission has not heard the appellant upon the question of leave to appeal and some grounds of the appeal were not fully developed. In these circumstances, I do not propose to come to any view as to the question of leave and make a purely preliminary assessment as to the strength of the appellant's case on the appeal.

Consideration 28The main competing contentions regarding the balance of convenience were that, on the one hand, the respondent had been attempting for nearly five years to bring to an end the practice of paying meal breaks when nurses were not working and that resulted in a significant and unwarranted drain on the public purse. Moreover, it was submitted, if a stay were granted and the respondent was successful on appeal it would have continued during the stay period to pay for meal breaks and such monies would be unrecoverable. 29On the other hand, the appellant submitted ceasing provision of the paid meal break would result in alterations to the rosters of nursing staff causing inconvenience such that some employees will be affected by the proposed roster changes in a manner that may cause them to have no choice by to leave their employment. 30There are contestable issues involved in both positions. In relation to the respondent's position, the appellant strongly contests the proposition that the nurses are not working during their meal breaks. It was submitted the evidence indicated nurses were on call during their meal breaks to attend to any incident or emergency that may arise and consequently were working during meal breaks. If that be so, the prospects of success for the appellant on appeal are stronger than otherwise might be the case. 31As to the continuation of payment during the period the stay is in operation and the respondent's concern about that, I note that the respondent has allowed the practice of paid meal breaks to continue for a number of years. Moreover, although it contended it had sought to end the practice on a number of occasions, no serious attempt using the available remedies was made until the respondent lodged its dispute notification leading to the decision of the Deputy President on 5 November 2012. 32I also note that between 2009 and 2011 no further steps were taken to remove the paid meal break. Indeed, on 30 June 2010 the respondent formally informed the Association that it had decided not to proceed with the withdrawal of the paid meal break at the Forensic Hospital and would continue to provide paid meal breaks for nursing staff. 33In relation to the appellant's inconvenience to staff argument the evidence of Mr Blair in that regard was at best vague and second hand and is not evidence I would be inclined to place a great deal of weight on in determining a stay application. These positions of both parties will need to be dealt with on appeal and I do not propose to make any judgment about the respective positions at this stage. 34The appellant's case could not be described as hopeless and that, therefore, there was no utility at all in granting a stay. Nor is the balance of convenience overwhelmingly in favour of the respondent. Consequently, the key to the stay issue is cl 48 of the Award. It requires the status quo to remain in place. That is, whilst the dispute resolution procedures prescribed by cl 48 are being followed, including reference to the Commission for assistance in resolving the dispute, the status quo before the emergence of the issue in dispute must continue. "Status quo" is defined to mean the work procedures and practices in place: (a) immediately before the issue arose; or (b) immediately before any change to those procedures or practices, which caused the issue to arise, was made. 35There is no basis to believe that the procedures prescribed by cl 48 have been concluded because there has been a first instance decision. The Industrial Relations Act provides for an appeal, by leave, from the Deputy President's decision (see ss 187 and 188). Until the appeal is heard and determined the Commission is still in the process of providing assistance in resolving the issue in dispute. 36It would be inconsistent with maintaining the status quo to refuse to order a stay in this matter. To refuse to do so would immediately have the effect of inviting the respondent to put in place arrangements that were different to the state of affairs that existed before the issue in dispute arose. 37I do not propose to reverse the arrangements put in place for new employees who are not paid for meal breaks, hence the terms of the order set out in the next paragraph.

Orders 38The Commission orders that the respondent shall continue to provide paid meal breaks to nursing staff working at the Forensic Hospital at Long Bay in accordance with the practice that existed on 1 December 2012 until such time as the appeal in this matter is heard and determined.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2012

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