Public Health System Nurses' and Midwives' (State) Award [2009] NSWIRComm 129 - NSWIRComm 2009 case summary — Zoe

NSWNSWIRComm

Public Health System Nurses' and Midwives' (State) Award [2009] NSWIRComm 129

[2009] NSWIRComm 129

Industrial Relations Commission (NSW)|2009-09-18|Before: Boland J, Walton J, Grayson DP, Beattie J, Sheppard JJ

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2009-09-18

Before

Boland J, Walton J, Grayson DP, Beattie J, Sheppard JJ

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

BACKGROUND AND THE APPLICATION 15 From 15 January 1973, a new Public Hospital Nurses' (State) Award was made which varied the penalty rates for shift work and weekend work for nurses engaged in public hospitals so as to conform to the shift allowances established for hospital employees under the Shift Workers Case. As earlier mentioned, the award was the successor to the Public Hospital Nurses' (State) Award. 16 In a Memorandum of Understanding ('the MOU') between the New South Wales Department of Health ('the Department') and the Nurses' Association, an agreement was reached, for the period 1 July 2008 to 30 June 2010, to alter, inter alia, the wages and conditions of all employees covered by the award. At the time of the making of the MOU, the shift allowances therein were those conforming with the Shift Workers Case.

[2]

17 The MOU contained a 'no extra claims' provision which operated for the life of the agreement, but permitted the making of applications in accordance with the Wage Fixing Principles established by this Commission from time to time in relation to two subject matters identified in cl 15 of the MOU. Only one of those provisions is presently relevant. Leave was reserved to make claims for "increases to the night duty penalty rate as set out in the claim served by the Association on 15 February 2008". 18 By the present application, the Nurses' Association makes a claim, inter alia, to vary the current night shift allowances in the award. The application, as pressed by the Nurses' Association, consisted of two claims with respect to night shift penalties. The Nurses' Association sought: i) an increase to the penalty rates for night shift in cl 15(i) of the award from 15 per cent to 25 per cent; ii) the introduction of a new 25 per cent night shift penalty for weekend shifts commencing at 4 pm and before 4 am to be paid on top of existing weekend penalty rates (see cl 15(x)). 19 This decision concerns those claims.

[6]

23 Ms C Howell, of counsel, who appeared for the applicant, in summary, made the following oral and written submissions in relation to the medical factors: 1. The rates for shift penalties have remained unchanged and have not been the subject of review or analysis since 1973; 2. Shift allowances fixed by the Shift Workers Case are no longer sufficient for nurses because there had been major developments in the scientific knowledge of both physiological and the psychological effects of shift work and night shift work since 1972 which demonstrate that the allowance set in the Shift Workers Case underestimates the detriment occasioned from working shift work; 3. The Full Bench in the Shift Workers Case had limited evidence of the effects of shiftwork on health and found it was "too indefinite to carry much weight in assessing compensation". The level of medical knowledge is now more extensive and detailed. Additional factors have been identified as to the increased risk of disease and other medical conditions from working night shifts which should be taken into account when fixing the night shift allowance; 4. There was an increased risk of developing adverse health problems and conditions if a certain incidence of night shifts were worked over a certain period of time. In respect to some risks, they become statistically significant after a certain period of time which ranges from five years to 30 years. Key empirical studies have shown that shift workers have a higher risk of developing serious medical problems including cardiovascular disease, breast cancer, gastro-intestinal disorders and reproductive health problems and are, thereby, exposed to the risk of injury to their health and safety. Until the employer can abolish the risk, there is no reason why the risk should not be recognised in remuneration; 5. In particular, the evidence demonstrated the following risks from working night shifts: (i) There is ample, reliable, expert evidence from Professor Grunstein to show that exposure to circadian disruption and sleep deprivation as a by-product of night or rotating shiftwork poses a significant medical risk. The risk increased with repeated exposure. Nurses working night shifts have reduced sleep hours which lead to a range of medical conditions including diabetes and gastro-intestinal disorders; (ii) Women who work night shifts have an increased risk of cardiovascular disease. The expert evidence showed there was an increased risk in cardiovascular morbidity for nurses working continuous shift work for six years or more; (iii) There was a link between working shift work and an increased risk of contracting some forms of cancer. A number of studies showed a higher risk of cancer relating to night work. In particular, one study showed that there was a statistically significant risk after 30 years of night shift. Shiftwork involves circadian disruption and has been ranked on the second tier used to grade carcinogenicity to humans. 6. The ageing workforce makes the issue of night shift particularly significant both from a health and safety and workforce perspective. An increase in the shift allowance would encourage younger nurses to undertake night shift rather than older nurses, causing a redistribution of work with two consequences. First, older nurses would work fewer night shifts and, secondly, there would be a much greater scope for nurses to exercise their own personal preferences for working night shifts. Older nurses, who are most at risk, would have a greater degree of flexibility in the number and configuration of shifts and, thereby, alleviate the chance of longer serving and older workers performing night shift work. It was, therefore, submitted that an increase in the night shift allowance will ameliorate the health risks associated with working night shifts. 24 Mr I Taylor, of counsel, who appeared on behalf of the respondent, made, in summary, the following oral and written submissions: 1. The Department accepted that the knowledge of shift work and its potential to be a risk factor in respect to some medical issues has developed since 1972. It contended, however, that there was not overwhelming evidence of very significant health consequences associated with the performance of shift work. The diseases identified by the medical evidence are relatively uncommon and an increase in risk, although not insignificant, does not mean shift workers will suffer such adverse health outcomes. It was conceded that the significance of the risk increases for nurses who continue to work night shifts over a certain period of time. However, the significance of that risk is to be understood in a context where only a small percentage of nurses will work continuous night shift work for an extended period of time. 2. The Nurses' Association was unable to show that nurses in New South Wales were, in fact, working the requisite pattern of work and, thereby, being exposed to those risks. The Department submitted that Professor Grunstein's expert evidence must be qualified. A number of the variables, which may affect the health risks associated with working nightshifts, were ones that Professor Grunstein could not differentiate because the studies in question did not specifically consider the relationship between the variable and risk. The variables included: (a) Whether it made a difference if the shifts were rotating shifts or permanent shifts; (b) The length of the shifts; (c) The amount of break between shifts and their sequencing; (d) The age of workers; (e) The degree or choice over which nurses worked night shifts; (f) The climate or environment of work; and (g) The time of day/night that the nightshift worked. 3. The Department accepted that Professor Grunstein's report cited two studies, both of which examined a link between mortality and sleep time. However, these studies did not provide a sound basis to show there was a direct link between short sleep and mortality generally, nor short sleep and cancer or cardiovascular death. The studies tendered by the Nurses' Association, therefore, had little relevance to nurses in New South Wales working night shifts; 4. It was conceded that there is an increased risk of developing cardiovascular morbidity and mortality for nurses working continuous night shifts for six or more years. In oral submissions, it was further conceded that women who work night shifts have an increased multivariate adjusted relative risk in respect of years for cardiovascular mortality. It was also accepted that the length of time engaging in continuous shift work is a significant risk factor for nurses; 5. The Department conceded that some studies showed working continuous night shifts over an extended period might, in some limited circumstances, increased the risk of some forms of cancer. However, studies showed no significant increase in breast cancer, except for those who have worked continuous shift work for over 30 years. As to colorectal cancer and endometrial cancer, any noticeable risk only arose when working continuous shift work over an extended period of time. Again, this risk was only significant after working 15 to 20 years of continuous shift work. Shift work has been listed by the World Health Organisation International Agency for Research as something, which is "probably carcinogenic". It is not placed in group one, which lists agents that have found to be carcinogenic. It has been placed in group two because some studies have found a link between shift work and an increased risk of cancer. Overall, there is inconclusive evidence to demonstrate that nurses working night shifts is a factor which significantly increases the risk of cancer; 6. The Nurses' Association failed to establish or identify any significant health issues arising for nurses working night shifts, in relation to diabetes, weight gain, pregnancy and gastrointestinal disorder.

[8]

Longitudinal epidemiological studies of which, the most significant were the 1976 Nurses' Health Study and the 1989 Nurses' Health Study II. 28 Professor Grunstein explained the last category as the most powerful type of evidence that long-term sleep habits were associated with the development of numerous diseases. Professor Grunstein described these Nurses' Health Studies as follows: In this regard, there is compelling data derived from very robust, long term studies known as the Nurses' Health Study and Nurses' Health Study II. Significantly, the strength of the data derived from these studies lies in the fact that the Nurses' Health Study provides over 30 years of data drawn from a very large same occupation group. The studies are among the largest investigations into risk factors for major chronic diseases in women ever conducted. In 1976, the Nurses' Health Study (NHS) cohort was established when 121,700 female married nurses, aged 30 to 55 years and residing in 11 large U.S. states, completed a mailed questionnaire on their medical history and lifestyle. Every 2 years, follow-up questionnaires have been sent to each participant to update information on potential risk factors and identify newly diagnosed illnesses. The protocol for the study was approved by the Human Research Committee of Brigham and Women's Hospital. Response rate to follow-up in this group has regularly exceeded 90% . The Nurses' Health Study II is a prospective cohort study that began in 1989, when 116,671 registered female U.S. nurses of ages 25 to 42 years were enrolled. Since 1989, members of the group have completed biennial mailed questionnaires that include items about their health status and known or suspected risk factors for cancer. Response rates to questionnaires in this group have averaged 90%. 29 The Nurses' Health Studies were not tendered in the proceedings. However, one of the studies that was relied upon by Professor Grunstein gives some further description of the Nurses' Health Study. In Kawachi I, Colditz G, Stampfer M, Willet W, Manson J, Speizer F, Hennekens C, "Prospective Study of Shift Work and Risk of Coronary Heart Disease in Women" (1995) 92 Circulation 3178 ('Kawachi 1995'), the Nurses' Health Study was described as "a search for information about risk factors for cancer and CHD, including current and past smoking habits and past personal history of myocardial infarction (MI), angina, cancer, diabetes, hypertension and high serum cholesterol levels". 30 The following is a list of the principal studies relied upon by Professor Grunstein in reaching his conclusions:

[12]

31 The mechanisms by which disrupted sleep may contribute to various adverse health affects, by reference to an analysis of the body's circadian rhythms, were described by Professor Grunstein, as follows: Rhythms of a person, synchronized to daytime activity by the light-dark cycle and social routine, must undergo phase readjustment when the individual is forced to adhere to a new activity-sleep schedule due, for example, to night work. The central and peripheral oscillators will follow the new schedule, however, not immediately but over a certain number of transient cycles to adapt to the changed phase of the environmental synchronizer. During this time of adaptation, there is disruption of the usual sequence and biological ordering of the numerous rhythmic events with some clock genes responding faster than others. The result is an internal phase desynchronization within the oscillator mechanism. The circadian oscillators in the anterior region of the SCN undergo a faster time adaptation than those in the posterior portion. The time adaptation of the central oscillators in the hypothalamus in the brain precedes that in the peripheral tissues, which follow at a slower pace and are transiently lost to the hypothalamic control. This process adds to the internal desynchronization within the individual oscillators along with a desynchronization between central and peripheral oscillators. The overall effect of a phase shift of this nature is that the individual involved experiences an alteration at several levels of its internal time organization during the transitional period of adjustment. For example, the top physical efficiency that is typically observed in the afternoon, becomes delayed to the night time. The pressure to sleep, which is also the expression of a circadian rhythm may be high during the environmental period requiring alertness and efficiency, and may be low during the time reserved for rest, resulting in insomnia and non-restorative sleep. During the period of time adaptation, this external and internal desynchronization of the human organism leads to a functional disturbance of its time organization ('dyschronism') with a loss in performance efficiency plus a set of symptoms similar to those of jet lag. These symptoms have been shown to predispose the individual to a heightened propensity of accidents in the work place. This physiologic process occurs every time the rotating shift worker engages with their new shift commencement time. Each circadian phase shift: (1) affects all metabolizing and proliferating cells in the individual. (2) leads to transient internal desynchronization on a molecular basis within the individual cellular oscillators. (3) results in desynchronization among the cellular oscillators in the SCN and in the peripheral tissues. (4) takes time for complete adjustment and occurs over several transient cycles. (5) varies by variable and function in the amount of time required for phase adaptation and with regard to cell and tissue proliferation may extend over several weeks.

[13]

A circadian phase shift exerts its effects upon molecular cell and tissue physiology and occurs over an extended period during which the time sequence of the biologic rhythms of many variables is different from that found in 'normal' day-night adapted individuals, i.e., the circadian time organization which is thought to be linked to optimal function. It is thought that the changes in the neuroendocrine web controlling cell and tissue proliferation during the internally desynchronized period of phase adaptation may permit or even promote growth of abnormal cell proliferation in target tissues that find themselves out of phase with their usual controlling influences. 32 In particular, Professor Grunstein, identified the relationship between night shift work and sleep disturbance as follows: Night and shift workers must adhere to a routine that is out of phase with the local day and night and social milieu. Sixty to seventy percent of workers on rotating shifts complain of problems with sleep disturbance or sleepiness, and general fatigue is more frequently reported by shift workers than day workers. The night and rotating shift worker is commonly exposed to environmental sunlight at the 'wrong times' - before and/or after the work shift, and during days off, and he/she must contend with a social environment which is tied to the usual day/night schedule of his/her daytime active family members and friends. Although the unusual (early morning, late evening, or night) shifts may lead to a disruption of the worker's circadian time organization, complete adjustment will seldom be achieved, even in employees on a 'permanent' night shift. Even after prolonged duration of time on this shift, only a minority of night workers will show phase adaptation of their circadian system to the nocturnal activity pattern. The majority either show no change in most of the variables examined or show a rhythm disruption with some intermediate phase alterations. Shiftworkers exposed to rapid shift rotations (3-4 days) maintain a daytime activity-oriented, circadian time organization, resulting work being done when cognitive and physical performance is poor. Intermediate or slow rotations (e.g., weekly) may more often lead to a phase alteration but without the possibility of a successful completion of phase adaptation by the end of the rotation. Disease Mechanism in Shift Workers.

[16]

33 The mortality risk referred to by Professor Grunstein in these observations needs to be seen in a particular context. 34 First, Professor Grunstein's observations, in this respect, derived from two studies: the Finnish twin cohort study and the Patel nurses' health study. These studies did not examine shiftwork, per se, but persons self-reporting average sleep per night. Further, the tables in the Patel study related to the relative risks of death and sleep duration and, in particular, the effect on the significance of the risk when various co-morbidity factors, such as hypertension, diabetes and shift work were taken into account. 35 Secondly, the studies on sleep length and morbidity were not studies on which Professor Grunstein relied for the conclusions in his report. Rather, he utilised that information to show the mechanisms by which shift work adversely affected the health of workers engaged in the same. 36 Thirdly, the Patel study showed no increase in risk of cancer or cardiovascular death associated with having five or less hours sleep. However, it was found in the Finnish twin cohort study that there is an increased risk of mortality from short sleep, but no significant risk of mortality associated for women who stated that they did not sleep well. Older women with short sleep did not have a statistically increased risk of mortality. 37 Fourthly, and most significantly, as the Department submitted, the medical and empirical studies disclosed the existence of a risk, or perhaps an increased risk (over other forms of shift work), arising from exposure to night shift work. The evidence does not purport to show a direct correlation between the performance of night shifts and the onset of an injury or deprivation to health in the sense that the performance of night shift over a given period will necessarily result in disease or a medical condition. Rather, there is a material, significant and serious risk of such injury or detriment to health or safety arising from the performance of such work when carried out in a particular sequence and with a particular frequency or duration. Thus, the nature and seriousness of the risk will vary depending upon the nature of the shift work, the extent of the sleep deprivation and the incidence and duration of the night shift work. The nature of the risk to health will fluctuate depending upon the prevalence of these factors and other factors such as the age of the worker performing night shifts. 38 It is necessary, therefore, in order to more closely understand the actual risk, to consider when the risk of a particular character may arise in conjunction with a particular set of variables or factors. This is particularly important in the present matter, where the applicant seeks to demonstrate that nurses are exposed to a risk to health from working a particular pattern of night shifts. We will, therefore, look more closely at the nature of some of the more significant risks before turning to any evidence as to the exposure of nurses to those risks in the public hospital system in New South Wales.

[18]

Cancer 41 Professor Grunstein gave evidence as to a link between working shift work and an increased risk of contracting some types of cancer. Schernhammer (2001) was the most significant study in this respect and focussed upon the linkage between shift work and the risk of breast cancer. 42 Schernhammer (2001) studied a large cohort of nurses drawn from the first Nurses' Health Study (1976). Schernhammer (2001) showed there was a moderate increase in breast cancer risk among the women who worked 1 to 14 years or 15 to 29 years on rotating night shifts. The risk was further increased among women who worked 30 or more years on night shifts. A further study by Schernhammer (2006) examined data drawn from the Nurses' Health Study II (1989) and found an elevated relative risk of breast cancer. In that further study, women who reported more than 20 years of rotating night shifts had a 79 per cent greater risk of breast cancer compared with women who had never worked this schedule. The study concluded that women who work on rotating night shifts with at least three nights of shift work per month, in addition to days and evenings in that month, appeared to have an increased risk of breast cancer after extended periods of working night shifts, being 20 years or more. 43 There was, however, conflicting evidence as to the relationship between sleep deprivation and cancer. A study drawn from the Nurses' Health Study by Pinherio (in 2006) concluded that sleep duration does not predict breast cancer. Dr Patel, in "Sleep - An Affair of the Heart", states: If sleep duration is associated with certain causes of death but not others, it would suggest that specific pathways do exist. In fact, the authors found for an association between sleep duration and deaths from cardiovascular disease but not association with cancer deaths. This fits well with prior research from the Nurses' Health Study where sleep duration predicts incident coronary events but not breast cancer. 44 Professor Grunstein's evidence, in respect of other forms of cancer, being colorectal, endometrial and prostate cancer, suggested that a risk arose after a considerable period of time working continuous shiftwork, that is, 15 years and over. 45 Evidence from the World Health Organisation International Agency for Research on Cancer ranked "shiftwork that involves circadian disruption" on the second highest of five tiers used to grade exposure and carcinogenicity to humans. Shiftwork that involved circadian disruption had been classed "probably carcinogenic to humans". However, it has not been placed in group one, which lists agents that have been found to be carcinogenic. It was placed in group two because there was insufficient evidence demonstrating that nurses working night shifts was a factor which significantly increased the risk of cancer. Professor Grunstein, in cross-examination, conceded that his opinion was not too dissimilar from the World Health Organisation position on risk factors for cancer, in particular breast cancer. It should be noted that Professor Grunstein stated, in this respect:

[37]

(j) Unplanned absences on night shifts were extremely difficult to fill, compared to day and afternoon shifts. Frequently no suitable casual or agency staff can be found and permanent staff had to work overtime to cover shifts. 51 Mr Taylor, in his written submissions, made the following submission as to permanent night shifts: It is now a feature of ward arrangements that there is a subset of nurses, often part-time, who prefer to work on a permanent nightshift basis rather than rotate. Such nurses relieve other nurses from the obligation to work as many nightshifts. This was not a feature of rostering in 1972. It follows that there is less nightshifts being worked now by those on rotating shifts than in 1972. Association witnesses gave evidence that as a consequence of such permanent nightshift nurses the other nurses work less nightshifts. Instead of five or six nightshifts per 28 days in some units nurses are on rotating shifts working one to three nightshifts per 28 days. 52 We accept that there has been a change since 1972 in that nurses more consistently work permanent night shifts. However, the final sentence in Mr Taylor's submission, in this respect, gives a false impression because the number of permanent night shifts or workers working under those arrangements are very much in the minority in the public health system. In their evidence, Ms Donna Garland, Midwifery Unit Manager at Bankstown Hospital, and Ms Gail Hanger, Nursing Unit Manager at Bowral Hospital, stated that there were "extremely few" nurses who prefer permanent night shift work to permanent day shift work, although it was accepted that there were some nurses who preferred to work permanent night shifts for family reasons and childcare issues. Nurses, in their respective units, work different patterns of night shifts each month and have a varying number of staff available to work night shifts. 53 Mr Taylor further submitted that there were less night shifts being worked now by nurses on rotating shifts than in 1972. However, this would depend on a number of variables, including the number of nurses working permanent night shifts (a small minority) and the total number of night shifts being worked by nurses in New South Wales. 54 The Nurses' Association's submission referred to in paragraph 52(g) above states that nurses frequently leave their employment and take up casual and part-time employment rather than doing night shifts. This submission is consistent with the evidence led in these proceedings. 55 Ms Hanger's evidence was that nurses move into part-time and casual employment or leave the profession altogether because they find rotating shifts "too hard". Ms Hanger stated: One nurse was forced to retire early on medical advice that she could not work night shifts. 56 Mr Grant Isedale, a registered nurse and midwife at Sydney South West Area Health Service, stated in examination in chief that: Most nurses want to work casual shifts to avoid the night shift requirements. One of the main factors that influence nurses to change from permanent employment to casual pool employment is a desire to get away from working on a rotating roster system, particularly night shifts. 57 There was no countervailing evidence in this respect, and we accept the Nurses' Association's contention that night shift work is extremely unpopular and it is common for nurses in the public health system to avoid working night shifts by switching to casual or part-time employment. 58 The only other consideration relevant to patterns of work is the process referred to by the Department of "self-rostering" or flexible rostering. We note that this consideration does have some significance for the consideration of the social and domestic inconvenience of working shift work, and is referable to some of the expert psychological evidence (which we will address in the discussion of social and domestic inconvenience). It is unnecessary to say anything further about the topic at this stage of our decision.

[38]

59 The Nurses' Association has successfully established that a particular class of nurses working in the public hospital system do work, on a regular and compulsory basis, the number of shifts which would attract the risks referred to in Professor Grunstein's evidence and the empirical studies relied upon by him. Those nurses are, generally, those working within those parts of the public health system which demands a 24 hour, seven day operation and are, thereby, required to perform night shifts in order to discharge the Department's obligation to the public health system of New South Wales. 60 The fact that a larger proportion of nurses are working permanent night shift does not alleviate the concerns raised by that fact. Firstly, that consideration has no real bearing upon the claim because the Full Bench in the Shift Workers Case did not have regard to significant medical factors in coming to their conclusion. Secondly, the evidence of permanent night shift or self rostering arrangements does not deny the fact that a significant proportion of nurses are required, as a necessary part of their work, to work night shifts with such regularity as would potentially attract the risk. 61 However, that is not the end of the matter. Another significant variable in determining risk is the duration over which the requisite number of shifts are worked. In this respect, we consider the Nurses' Association has failed to prove that the nursing population in the public health hospital system is, in fact, working night shifts for a duration which would expose them to the risk in the matter described in the expert evidence. 62 The evidence led in these proceedings did not disclose the duration over which nurses covered by the award performed the requisite number of night shifts which would attract the risk of particular diseases (noting that some of them have a much longer duration of onset than others). Hence, there is not evidence before the Full Bench which would enable us to draw a conclusion that the risk has or will materialise for the whole or part of the population of nurses covered by the award. It was for the applicant to make out that part of its case, and it has not done so. This is not merely a matter of proof. The issues raised are serious and required an exacting proof. 63 It is not only the absence of evidence as to the overall population of nurses which is also absent here. There is countervailing evidence which would indicate that nurses may withdraw from the performance of night shifts at various times in their careers because of factors of age or exasperation with the working of rotating shift arrangements. Thus, there is evidence of nurses reverting to part-time or casual work in order to avoid the working of night shift. The existence of permanent night shift arrangements further complicates the question, as it is less clear on the evidence how permanent night shifts may impact upon the health of nurses, although, clearly, the evidence demonstrates that there are risks associated with the performance of permanent night shifts. The same observations follow for 10 and 12 hour shifts.

[39]

64 The absence of evidence as to the overall pattern of work of nurses, and the questions raised in the evidence as to what might be the duration worked by nurses in the system must result in us declining the application so far as it is based upon health and safety risks. 65 The Nurses' Association did indicate that the increase in the night shift allowance might have the effect of causing younger nurses to do more night shift work and thereby offsetting the number of night shifts that might be performed by nurses who had been undertaking such work over a longer period or doing so at an older age. The same observation follows for 10 and 12 hour shifts. 66 The failure to establish the duration of which nurses (required to work night shifts) did so significantly undermines this contention. In any event, the contention must be also rejected because there is a singular lack of evidence before us which would enable such a conclusion to be reached. In short, the Nurses' Association has not proved that an increase in the shift work allowance would result in a redistribution of night shift in such a way as would alleviate any risks associated with the performance of such shifts. 67 Two final observations should be made before moving to the issue of the social and domestic inconvenience of shift work. We should not be taken by the aforementioned observations to have implied by our findings that, had the omitted evidence been produced, it would necessarily follow that some adjustment to the shift allowance in the award would result. Consistent with the principles in Operational Ambulance Officers, such a conclusion could only be reached if it could be demonstrated that the variation to the allowance, if justified as a matter of merit on the evidence, would actually significantly reduce the risk. The contention advanced by the Nurses' Association as to a redistribution which may be brought about by an increase in the allowance may fit that criteria, but, on the evidence before us, it must be considered to be largely speculative. 68 Further, we should not be taken, by these observations, as underrating the seriousness of the potential risks that may arise from the working of certain patterns of night shifts by nurses in the public hospital system. Our observations are directed, as they must be, purely to the questions raised by the application before the Commission. The issues of health and safety raised in these proceedings, of course, have a wider dimension outside the purview of the Commission as presently constituted. Those matters squarely arise for attention under the Occupational Health and Safety Act 2000. At this stage, we will confine our remarks to observing that it is a matter of concern that the Department has not undertaken a risk assessment in relation to the performance of night shift work by nurses in the public hospital system.

[40]

Shift Workers Case 69 The Full Bench in the Shift Workers Case considered that the key factor to be taken into account in remunerating shift work was the "social and domestic inconvenience" involved in shift work. A number of elements were identified, in this respect. The Full Bench stated (at 648); References were frequently made in the evidence of shift workers in this case to restrictions caused by shift work on sporting and general social, private and group activities including family outings. Particular emphasis was also placed on the difficulties created in family relationships both as between husband and wife and with children. As to children not only was it stated that the pleasure of their company is often unduly restricted, also that the opportunity for proper supervision and help in their development is lessened. As to wives, the evidence was that problems can arise through more frequent separation causing loneliness and a feeling of neglect. Both the social and sexual relationship between husband and wife can be disturbed and rendered less satisfactory. As to the shift worker himself, it was claimed that there is often a requirement to adapt and adjust himself to changes in the hours at which he is required to work and this again varies greatly in its effects with the type of shift system being worked. Many witnesses claimed that they had real problems associated with endeavouring to sleep in daylight hours (night shift) or through going to bed late (afternoon shifts) and these problems were particularly aggravated in summer and where the home is in a noisy area. Irregular meal times were also mentioned as an unattractive feature of shift work. A few witnesses spoke of additional expense to due to additional meal times within the family circle and the need to travel when public transport facilities are limited. But no attempt was made to quantify this inconvenience. 70 However, the Full Bench found that the impact of these elements varied with the types of shift being worked (permanent or rotating) and the method of rotation. The social and domestic factors also varied according to the "taste, habits and patterns of life" of the shift worker concerned. The Full Bench stated (at 648): Many persons cannot adapt themselves physically or socially to shift work at all. In general they tend to drift away from it as the opportunity offers. But the process of natural selection is far from absolute. There are many who through economic necessity or the nature of their skills or aptitudes or the job opportunities in the area in which they live (e.g Newcastle or Wollongong) remain shift workers although not suited to shift work. 71 On the other hand, the Full Bench noted some positive aspects of shift work (at 648): There are some compensations for many in shift work particularly for young people without family responsibilities and sometimes for married people without children. Some like it because it makes easier the transaction of personal business, e.g., banking, seeing doctors and dentists and shopping and in many cases longer periods of days off in sequence are possible, Shift work also often gives a greater opportunity to pursue personal hobbies. Hence a balanced view must be taken. 72 However, the Full Bench also observed (at 648-649): If it was not paid at a higher rate, there is little doubt that shift work would be acceptable only to a distinct minority. The considerations we have mentioned are not new and generally have been taken into account in the past when shift work remuneration has been fixed. Apart from questions relating to health, which are too indefinite to carry much weight in assessing compensation, the disturbance to domestic and social life is overall very real and calls for adequate compensation. 73 In relation to the fixed shift system and rotating shift system the Full Bench placed in ascending order of inconvenience and disability (at 650) as follows: Fixed Shift System: (a) day shift (no inconvenience or disability); (b) an early morning shift, say, commencing between 4 am and 6 am; (c) afternoon shift; (d) night shift. Rotating or alternating shift system: (a) day shift (minor inconvenience and disability); (b) early morning shift; (c) afternoon and night shift. (The former has more social disturbances and the latter more medical problems, e.g., arising from difficulties with sleep.) 74 The Full Bench regarded the fixed night shift as being "more onerous" than the rotating or alternating night shift because of its effect on domestic and social life, even though the evidence suggested that it is "less onerous" in relation to possible minor health problems. Submissions on Social and Domestic Factors

[41]

75 In summary, the applicant, made the following oral and written submissions in relation to social and domestic factors. 1. As mentioned earlier, it was contended that the rates for shift penalties have remained unchanged and have not been the subject of review or analysis since 1973; 2. There is a higher level of social and domestic inconvenience suffered by nurses living and working in the twenty-first century. Shift allowances fixed by the Shift Workers Case are no longer adequate for nurses and undervalue the detriment occasioned from working shift work; 3. The understanding of the social and physiological consequences of shift work has advanced since 1972. It was the expert evidence of Dr Rajaratnam, that shift work resulted in adverse behavioural, emotional and cognitive outcomes for the children of shift workers. This issue was not identified in the Shift Workers Case . The adverse outcomes for children of shift workers is a significant detriment to be taken into account in assessing the impact of shift work; 4. Further, Dr Rajaratnam gave evidence that the following adverse social and domestic inconveniences were associated with shift work: (i) Negative psychological symptoms including depression, unhappiness, tension, anxiety, hostility and confusion; (ii) Increased disruption to marital relationships associated with elevated risk of poor marital quality and increased probability of separation and divorce; (iii) Conflict between work and non-work life with reduced time available for participation in social and leisure activities with family, friends and children; 5. Although social disadvantage was identified and acknowledged in 1972 as deriving from the performance of shift work, the extent of such disadvantage is now greater than was then understood. It was submitted that Dr Rajaratnam's evidence and the literature he relied upon identified with more precision the adverse consequences of non-standard hours than the evidence referred to in the Shift Workers Case. Doctor Rajaratnam went further than the conclusions of the Full Bench in identifying with specificity and certainty the adverse outcomes associated with shift work. The problems associated with shift work would also exacerbate any shortage of nurses. 76 In summary, the Department made the following oral and written submissions: 1. The Department accepted that there was more information available in 2009 as to the social and domestic inconvenience arising from shift work than at the time of the Shift Workers Case . However, it rejected the proposition that the actual adverse social effects suffered by shift workers had significantly changed since 1972. In fact, the negative social and domestic effects on nurses working night shifts had decreased; 2. The key factors which were identified by Dr Rajaratnam were really the same social and domestic disabilities considered in the 1972 case; 3. The expert evidence of Dr Rajaratnam was very broad and was, therefore, applicable to shift workers generally and not just nurses. Nurses had no greater social and domestic difficulties than other shift workers working similar shifts. In fact, the disabilities are more likely to be less because of the degree of control they exercised over the shifts worked by them. It was noted Dr Rajaratnam was not prepared to make any comparison with other occupational groups; 4. The Department conceded that there is now better information in respect of the impact on children (for that sub-set of workers who work night shift while they have young children). However, that domestic disability was more than offset by other factors impacting upon social and domestic inconvenience, the most significant of which were: (i) The advent of self-rostering and individual preferences which, by their nature, had the effect of substantially reducing social and domestic inconvenience; (ii) The significant change in society since 1972 to one where flexible working hours and shift work was common; 5. It should be noted that Dr Rajaratnam gave evidence that having some control over work schedules can mitigate the adverse effects of non-standard work hours. It must follow, therefore, that the introduction of self-rostering, with consequential reduction in social and domestic disturbance, was a significant ameliorating factor compared to the position considered by the Full Bench in 1972. Nurses can now indicate a preference as to when they want to work night shifts. This resulted in a considerable ameliorating effect compared to the rostering system in place in 1972; 6. Doctor Rajaratnam's evidence and the studies he relied upon were not specific or, in some cases, relevant to nurses. The evidence given was general in nature, and not capable of quantifying the extent to which certain factors may affect the social and domestic disabilities of nurses. In particular, Dr Rajaratnam was unable to say to what extent the number of shifts worked, the sequencing of shifts, or the pattern of shifts (rotating or permanent) would impact upon the disabilities he identified.

[45]

Work and non-work life conflict 80 Shift work often introduced a conflict between work and non-work life. It was evident that there was a reduced opportunity to focus on personal well-being and to participate in social and leisure activities with family and friends when working night shifts. 81 An Australian study by Lushington W, Lushington K & Dawson D, "The perceived social and domestic consequences of shift work for female shift workers (nurses) and their partners" (1997) 13 J Occup Health Study - Aust NZ 461, assessed 50 female nurse shift workers and their partners on the subjective impact of shift work on social and domestic life, and the perceived psychological, social and physiological impact on well-being. Both the nurses and their partners found that shift work caused a moderate to high amount of disruption to all measures of social and domestic life. 82 In particular, shift work was perceived to be highly disruptive to maintenance of family relationships, joint social lives and was a major contributor to family conflict. For those with children, both the nurses and their partners, reported significantly reduced contact time with their children, with over a third reporting adverse and detrimental effects on the well-being of their children. Behavioural, cognitive and health outcomes for children 83 In reliance on a number of studies with relatively large samples, it was observed that behavioural problems and difficulties in children were associated with non-standard work hours of parents. 84 Cognitive outcomes may be affected by parental engagement in shift work. Studies of the impact of shift work on parental behaviours produced mixed results. In one study, parents working non-standard work schedules reported worse family functioning, depressive symptoms and less effective parenting. In addition, it was found that their children were more likely to have social and emotional difficulties, partially mediated through family relationships and parent well-being. In contrast, in other studies, non-standard schedules were not found to be related to the amount of time parents spent with their adolescent children and mothers' work schedules (day vs. evening shifts) were unrelated to their parenting behaviours. Control of the work schedule and flexible work hours 85 Studies showed that increased control of the work schedule by an employee and flexible working hours were reported to reduce the adverse impact on health and psychological well-being. However, it should be noted that these studies did not suggest that an increased control eliminated the impact of shift work. In fact, one of the studies excluded shift workers from the analysis. In another study it was reported that high levels of perceived schedule control were associated with lower adverse family and health outcomes. Doctor Rajaratnam opined that a large sample of non-day and rotating shift workers, representing a broad spectrum of occupational groups, was required in order to confirm these findings. General Conclusions in Expert Evidence 86 Notwithstanding, that a number of variables are likely to moderate or influence the relationships and effects observed in the above studies, Dr Rajaratnam found converging evidence from multiple studies which showed that non-standard work hours were associated with adverse effects on psychological health and social and domestic arrangements. He concluded that non-standard work hours are specifically associated with: · Negative psychological symptoms, some of which are reported to be related to negative cardiovascular and endocrine outcomes and a higher frequency of medically certified absences from work; · Increased disruption to marital relationships associated with elevated risk of poor marital quality and increased probability of separation and divorce; · Conflict between work and non-work life with reduced time available for participation in social and leisure activities with family and friends, including reduced contact time with children; · Negative impact on children, with reports of higher emotional or behavioural difficulties, poor outcomes for cognitive development and elevated body mass index. 87 In cross-examination, Dr Rajaratnam indicated that he was not able to draw comparisons between nurses and other occupational groups working shift work. His evidence was as follows; Q. Do you agree with this proposition: That there is no reason top (sic) think that negative social and domestic effect from working shift work are any greater for nurses than for other shift workers working similar shift patterns? A. That the adverse outcomes are no greater for nurses than for other occupational groups working shift work is that the question?

[56]

CONCLUSION : APPLICATION TO VARY NIGHT SHIFT ALLOWANCES 93 Many of the adversities associated with the performance of night shifts identified in these proceedings were common to those found by the Full Bench in the Shift Workers Case. However, the expert evidence in these proceedings, when considered in the light of the various empirical studies and evidence from senior nurses bearing upon such matters, established the existence of adverse factors affecting nurses working night shifts not known or found in the Shift Workers Case. 94 However, this medical evidence does not establish the existence of such adverse medical consequences, per se, but, rather, a pronounced risk which exists in varying degrees, depending upon the incidence of shift work by nurses in the public hospital system. There is no evidentiary basis in these proceedings for a firm conclusion to be drawn as to the actual impact on nurses, either generally or for particular classes; let alone a basis to sustain an increase in the allowances for night shifts founded on this consideration. 95 Well established principle in this jurisdiction would permit an adjustment to the allowance, if such an adjustment actually ameliorated a risk to health and safety. Despite the strength of the theoretical underpinnings of the applicant's medical case, and the plain, adverse effects on nurses from working night shift, no such criteria was met in this case. 96 There was insufficient warrant to vary the allowance on the grounds for the social and domestic inconvenience of working night shift, as there was insufficient demonstration of change from the factors already taken into account in fixing the allowance in the Shift Workers Case. 97 This conclusion is put beyond doubt when consideration is given to the flow-on consequence and significant economic consequences associated with the claim. There can be no doubt, in our view, that the grant of any part of the claim of the Nurses' Association on non-medical grounds would represent a departure from the Shift Workers Case, and establish a clear basis for higher shift allowances in other awards in the health and public sectors. 98 Should the application be simply dismissed? We think not. It is a matter of considerable concern that there has not been a risk assessment of night shift work for nurses in the public hospital system. Furthermore, the strength of the expert evidence of psychological and physiological harm that may derive from working extended periods of shift work weighs against a simple rejection of the case, at least on public interest grounds. 99 We consider that the better course is to dismiss the application upon two conditions. First, we shall retain leave reserved for the Nurses' Association to further press its current application for night shift allowances after a further review of night shift arrangements for nurses in public hospitals (as outlined in the second condition below), provided that liberty to apply is exercised within a 12 month period (or such further period as agreed between the parties and approved by the Commission or such further period as granted by the Commission). Secondly, we consider that the parties to these proceedings should jointly conduct a study or survey of nurses working night shifts (whether on a rotating shift or otherwise) as would be necessary to properly assess the medical issues raised in these proceedings. This may occur as part of any risk assessment or otherwise. That study or assessment should involve a survey of the opinion of nurses as to any changed work practices which might occur if the night shift allowance was increased, although with sufficient controls so as to avoid any corruption of the results obtained in the study.

Cases Cited (11)

[172] This Commission, and it predecessors, have long had regard to considerations of health and safety when setting terms and conditions of employment for workers. In Re Government Railways and Tramways (Construction) Award [1926] AR 92 at 94, Commissioner Piddington stated: The principle to be followed in all cases by the Commission is not that unhealthy conditions be allowed to continue and a palliative sought in reduced hours, or a solatium in increased wages, but that the organised service of medical and engineering knowledge ought to be employed to abolish, as far as possible, the unhealthiness of the conditions.

[173] In Re Cold Storage and Ice Employees (Cumberland) Award [1940] AR 191, the Full Commission expressed the view that, in making awards, the effect of the terms and conditions of work on the health of employees was a paramount consideration. The Full Commission stated (at 196): We take the view that, while the company should be encouraged to introduce new methods which are calculated to improve the quality of the product and increase the efficiency of the plant, every precaution should be taken that the health and well-being of the employees are safeguarded. Progress in industrial efficiency should not be discouraged, but when such progress might only be attained by causing some harm to the employees concerned in the industry, then the paramount consideration is the welfare of the employees.

[175] In Re Glass Makers (Australian Window Glass Proprietary Ltd) Award (No 2) [1939] AR 164, for example, Ferguson J considered an application for the variation of an award in consideration of injury to the health of employees which might have arisen as a result of exposure to dust. In the circumstances of the case, his Honour concluded (at 177): In any event, I am of the opinion that the increase of rates of pay is not a proper method of dealing with a health hazard if such be found to exist. The proper remedy for such, if established, seems to me to be either reduction of hours or extension of annual leave, or both, or, best of all, the minimising or removal of the cause of danger of ill-health.

(2001) 113 IR 384

(2000) 100 IR 447

(1987) 163 CLR 117

(2001) 104 IR 168

(2007) 163 IR 253

[2001] NSWIRComm 220

[2007] NSWIRComm 118

[2001] NSWIRComm 331