Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Hornsby Shire Council [2020] NSWIRComm 1073 Hearing dates: 24 June 2020 Date of orders: 26 October 2020 Decision date: 26 October 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Application dismissed Catchwords: EMPLOYMENT LAW – industrial dispute – reasonable overtime – regular overtime on weekends – operational needs - personal circumstances – impact on other employees – sufficient notice – no risk to health and safety - overtime not unreasonable Legislation Cited: Industrial Arbitration Act 1940 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Health Services Union New South Wales v Ambulance Service of New South Wales [2017] NSWIRComm 1057 Kucks v CSR Ltd (1996) 66 IR 182 New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41 Re Prison Officers, Department of Corrective Services (1988) 26 IR 266 Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038 State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 Texts Cited: Macquarie Online Dictionary Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (notifier) Hornsby Shire Council (respondent) Representation: D Papps on behalf of New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union J Mattson of Bartier Perry on behalf of Hornsby Shire Council File Number(s): 57112 of 2020 Publication restriction: Nil Judgment 1. This is a decision in respect of a dispute notified by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the notifier) filed on 19 February 2020 in respect of their member Mr Rodney Robinson. The parties are in dispute with respect to Mr Robinson's request to no longer work overtime on weekends. 2. In this matter, the notifier seeks a recommendation of the Commission, pursuant to s 136(1)(a) and s 175 of the Industrial Relations Act 1996 (NSW)(the Act), in the following terms: 1. The respondent's direction to Mr Rodney Robinson to work overtime on either, two out of every four and/or three out of every four weekends, is not permitted by the Local Government (State) Award 2017 (the award), and in particular, is contrary to cl 19A(viii) of the Award; and 2. Mr Rodney Robinson not be required to work overtime on weekends. 1. I have determined for the reasons contained in this decision that the request for Mr Robinson to work two (2), five (5) hour shifts in a month on a weekend day is not unreasonable in all of the circumstances. Accordingly, I have not made the recommendations sought by the notifier. Background 1. Mr Robinson has been employed by the respondent since 2001, initially as a casual employee, becoming a permanent employee in about 2004. While he has worked in a number of acting positions at the respondent, he has mostly been engaged as a Driver/Labourer driving street sweeping trucks within the Waste Cleansing Department. 2. In December 2018, Mr Robinson sustained a non-work related injury to his ankle and commenced a period of leave, returning to the workplace in September 2019. Suffice to say, Mr Robinson's transition back to work has not been smooth sailing with the notifier conceding that his relationship with the respondent has been tumultuous. 3. Putting to one side his relationship with the respondent and in particular, his line of management, Mr Robinson is in sharp conflict with his employer with respect to its direction to him to work two (2) overtime shifts a month on a Saturday, from 5 am to 10 am. 4. From the evidence, Mr Robinson first raised the issue of his overtime being unreasonable upon his return to the workplace in September 2019. In the years prior to this, Mr Robinson regularly worked weekend overtime and it is a long term practice of the respondent to regularly roster staff from the area on either two (2) or three (3) Saturday shifts per month. On 28 February 2020, Mr Robinson signed a position description that included a statement, "The Driver/Labourer operates outside the normal spread of work days/hours including regular weekend work… as directed." 5. Mr Robinson gave inconsistent explanations for why he considered that it was no longer reasonable for him to work overtime weekend. He variously complained that the rosters were unfair, that he wished to spend more time with his grandkids and that it was bad for his wellbeing. Mr Robinson also informed the respondent of the circumstances of his granddaughter, Evie having autism and his need to care for her on weekends as a reason for the overtime being unreasonable. I have considered Mr Robinson's personal circumstances with respect to his granddaughter in greater detail below as he sought to rely upon those in these proceedings. 6. In answer to the inconsistencies in the reasons provided to say that the overtime was no longer reasonable, Mr Robinson gave evidence that, "I was reluctant to fully explain the reason for me not wanting to work overtime because I was concerned that Mr Judkins would tell Mr Horsey. I did not want Mr Horsey to know the exact reasons I did not want to work overtime because I was concerned he would make snide remarks to me about it, as I had seen him make snide remarks to other staff about confidential or personal matters.. I am very protective of my family and I wasn't sure how I would react if Mr Horsey made a comment about Evie." 7. By 18 September 2019, Mr Robinson had made clear that he did not believe the requirement to work overtime on the weekend was reasonable to his manager Mr Benn Judkins, Cleansing Operations Coordinator and Mr Paul Bickerstaff, Employment Services Manager. On this date, Mr Robinson was issued with a letter from by Mr Judkins advising him that he was required to work weekend overtime and that it could not be reasonably refused. 8. The day after receiving the letter on 19 September 2019, Mr Robinson informed Mr Judkins that he couldn't complete his shift that Saturday because he did not have a car. 9. Mr Robinson was absent from the workplace from 20 September 2019 to 22 January 2020. 10. On 27 September 2019, Mr Robinson submitted a medical certificate from his General Practitioner to the respondent which provided that this granddaughter "has a medical condition and need him to be her carrer (sic) on weekends and will be unfit for working in weekends indefinitely from 27th September 2019 inclusive." 11. On 14 October 2019, Mr Jim Mitchell, Manager, People and Culture, wrote to Mr Robinson asking for more information about his medical certificate and carer's obligations. This included a request that he address how he is the primary carer of his granddaughter and requesting a medical certificate from his granddaughter's treating doctor. 12. On 17 December 2019, Ms Jacqui Tomlins, a delegate of the notifier provided information to the respondent to support his submission that Mr Robinson was unable to perform weekend overtime due to carer responsibilities including: 1. A submission from both Ms Tomlins and Mr Robinson on why the overtime was unreasonable; 2. A medical certificate from his granddaughter's treating paediatrician; 3. A statutory declaration from Mr John Payne, Mr Robinson's son-in-law, which provided that: "Rodney Robinson provides care for my daughter who suffers from a disability on weekends due to my wife and I's work commitments and to provide respite for us. Evie is 5 years old and requires full time care. Our work commitments are ad-hoc and are usually accepted at short notice, Rodney is the carer for Evie in these instances. To not have Rodney be able to care for Evie would cause us and our daughter significant hardship." 1. On 7 January 2020, Mr Robinson and Mr Judkins entered into an agreement as a result of an independent mediation organised by the respondent which provided (among other things) that Mr Robinson would, "Follow his position description." 2. On 16 January 2020, Mr Fedorow wrote to Mr Robinson advising him that they had formed the view that it was reasonable that he be required to work Saturday overtime. However, the letter provided that Mr Robinson would no longer be required to work three (3) Saturday shifts in a month, instead only two (2). In addition, the letter informed Mr Robinson that the respondent was willing to investigate transferring him into the Parks Service Unit, "where there is no requirement for weekend overtime." 3. Mr Robinson returned to work after an extended absence on 22 January 2020. He was rostered to work overtime on Saturday, 25 January 2020 but did not attend that shift. 4. On 30 January 2020, Mr Robinson lodged a grievance with respect to the respondent's decision to require him to perform weekend overtime. 5. On 4 February 2020, a meeting was conducted with respect to the grievance with Mr Robinson and employees of the respondent. 6. On 6 February 2020, the respondent wrote to Mr Robinson with respect to his grievance seeking further information in relation to his daughter and son-in-law's work obligations from their employers. Mr Robinson did not respond to this request. 7. On 18 February 2020, the notifier lodged this dispute in the Commission. 8. On 24 February 2020, Mr Robinson received a Final Formal Warning letter (dated 19 February 2020) with respect to his failure to attend the rostered overtime shift on Saturday, 25 January 2020. 9. Also on 24 February 2020, Mr Robinson received a letter confirming the outcome of his grievance that the respondent still required that he work two (2) Saturdays per month as rostered. 10. On 25 February 2020, this dispute was the subject of conciliation before the Commission currently constituted. The dispute was unable to be resolved by conciliation. 11. Mr Robinson was directed by the respondent to work two (2) Saturdays a month during the currency of this dispute. Legislation, Principles and Relevant Award provisions 1. The decision in this matter turns upon analysis of the facts against clause 19 (viii) of the Local Government Award 2017 (the award) which is in the following terms: 19. Overtime …… (viii) (a) Subject to paragraph (b), the employer may require an employee to work reasonable overtime at overtime rates. (b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable. (c) For the purposes of paragraph (b), what is unreasonable or otherwise will be determined having regard to: any risk to the employee; the employee's personal circumstances including any family and carer responsibilities; the needs of the workplace; the notice, if any, given by the employer of the overtime and by the employee of their intention to refuse it; and any other matter. 1. The parties did not agree on the approach the Commission should take in considering the matter at hand. In particular, the notifier argued that the award requires an examination of two questions, namely; 1. Is the overtime reasonable?; and 2. Are the overtime hours reasonable (with reference to the factors set out at 19(viii)(c)). 1. The respondent contended that the Commission need only engage with one question, namely, whether the overtime is unreasonable. 2. In order to resolve this controversy it is necessary to refer to and consider the well settled principles relevant to award interpretation in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: "(1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ)." 1. Walton J also cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading." 1. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41, Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038 and more recently New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025. 2. Commissioner Seymour has previously analysed the principles relevant to award interpretation in Health Services Union New South Wales v Ambulance Service of New South Wales [2017] NSWIRComm 1057 at paragraph [10]-[19], which provides a convenient summary of those principles which I have relevantly extracted below: "[10] The Commission has powers to provide an interpretation of a clause in an award pursuant to s.175 if that is a step necessary for the purpose of exercising its powers under s.136. The powers of the Commission under s.175 do not stand alone, permitting applications for declaratory relief simpliciter. Rather they may be exercised 'for the purpose of exercising [the Commission's] functions in a matter before it', in this case the powers set out in s.136 of the Act: Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67]; Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 at [57]-[58]. [11] The relevant principles applied by the Commission to award interpretation are well settled. The Full Bench of the Commission in Bryce v Apperley (1998) 82 IR 448 at 452 observed as follows: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops (1961) AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light. [12] In New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55, Boland J endorsed the principles applied in Bryce as follows: [9] In approaching the task of interpreting an award the starting point is the actual words of the award itself and their plain, ordinary English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1998) 82 IR 448 at 452. If the language of the award provision is clear and unambiguous and is consistent and harmonious with the other provisions of the award and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning even if it leads to a result that may seem inconvenient or unjust (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)(1981) 147 CLR 297 at 305 per Gibbs CJ). Although he was concerned with statutory provisions, the observations of the Chief Justice apply with equal force to an award: Bryce v Apperley at 453. However, as French J observed in City of Wanneroo, "That is not to say the words (of an award) must be interpreted in a vacuum divorced from industrial realities." French J referred to the decision of Street J in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 where his Honour said: [I]n construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. [13] The principles in Bryce were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales (2004) 135 IR 56 where the Commission held: [43] The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used. .... [18] The first step is to consider the plain, ordinary meaning of the actual words of cl. 23(b)(ii), giving consideration and weight to every part of the Award, in order to ascertain the provision's meaning. If cl. 23 (b)(ii) is unambiguous, harmonious with the other provisions of the Award and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning." 1. I have applied these principles in interpreting the clause 19(viii) of the award. 2. The words of the subclauses of clause 19 (viii) must be given their ordinary meaning. The clause confirms the well-established proposition that the employer can require an employee to undertake reasonable overtime, at overtime rates: cl 19(viii)(a). However, this right is qualified by cl 19(viii)(b), which gives the employee a concurrent right to refuse hours that are unreasonable. In determining what are unreasonable hours, regard must be had to those matters set out in cl 19(viii)(c). 3. The Macquarie Online Dictionary provides for the definition of "reasonable": "1. endowed with reason. 2. agreeable to reason or sound judgement: a reasonable choice. 3. not exceeding the limit prescribed by reason; not excessive: reasonable terms. 4. moderate, or moderate in price: the coat was reasonable but not cheap." 1. I consider the first and third definitions to be most relevant in the context of cl 19 of the award. 2. On the other hand, unreasonable is defined by the Macquarie Online Dictionary as follow: "1. not reasonable; not endowed with reason. 2. not guided by reason or good sense. 3. not agreeable to or willing to listen to reason. 4. not based on or in accordance with reason or sound judgement. 5. exceeding the bounds of reason; immoderate; exorbitant." 1. The definitions most apt to apply to clause 19(viii)(b) in my view are one, two, four and five. 2. What is evident from the dictionary definition of both "reasonable" and "unreasonable" is that they are perfect opposites. It defies reason that overtime can be both "reasonable" and the overtime hours "unreasonable" at the same time. The analysis in the context of whether overtime is "reasonable" or the hours "unreasonable" requires an examination of the same matters and that need only occur once to arrive at a conclusion whether the employee may refuse to do the relevant overtime. This interpretation of the clause is consistent with its purpose, namely, to balance the interests of the parties to the employment relationship to ensure that the employer may require overtime to be undertaken, but only if the requirement is reasonable and not unreasonable. Accordingly, the relevant question to ask is whether the overtime hours requested is reasonable or unreasonable, having regard to clause 19(viii)(c). The notifier's Evidence and Submissions 1. The notifier relied upon two statements of Mr Robinson (Ex A1 and Ex A2). In addition the notifier relied upon written statement of Mr Robinson's wife, Ms Lesley Robinson (Ex A3); and daughter, Ms Jayde Leigh Payne (Ex A4). 2. The notifier also relied upon a letter dated 17 June 2020 to the respondent wherein, in settlement of the dispute, it offers that Mr Robinson would be willing to perform overtime by commencing work one (1) hour earlier on five (5) days in each fortnight, provided that he not be required to work overtime on any weekend without his consent. 3. The notifier relied upon both written and oral submissions. The Respondent's Evidence and Submissions 1. The respondent relied upon statements of employees of the respondent; Ms Amanda Collins, Safety and Wellness Service Manager (Ex R3) and Mr Benn Judkins (Ex R4), Cleansing Operations Coordinator. In addition the respondent relied upon a bundle of documents, consisting of 45 separate documents totalling 165 pages: Ex R2. 2. The respondent relied upon an email dated 18 June 2020 to the notifier rejecting their proposal of 17 June 2020 that Mr Robinson perform overtime during the week rather than on the weekend: Ex R1. 3. The respondent relied upon both written and oral submissions. Consideration 1. In order to determine whether the Commission should make the recommendations sought by the notifier, the Commission must consider whether the overtime the respondent requires of Mr Robinson, namely, two (2) five (5) hour shifts per month, is reasonable or unreasonable. 2. In order to determine whether or not the overtime which is being asked of Mr Robinson's is unreasonable pursuant to clause 19 (viii), I am required to take into account the following: "any risk to the employee; the employee's personal circumstances including any family and carer responsibilities; the needs of the workplace; the notice, if any, given by the employer of the overtime and by the employee of their intention to refuse it; and any other matter." 1. It stands to reason that "any other matter" which is to be taken into account for the purpose of determining whether or not the request is unreasonable must be a relevant matter. 2. At the hearing of the matter, the notifier confirmed the respondent's position that the relevant weekend overtime does not pose a safety risk and that the issue of notice to the employee was also a "non-issue." 3. The operational need for the weekend overtime to be undertaken is a relevant matter that the parties did not agree upon. The notifier submitted that the work conducted by Mr Robinson could be conducted on a weekday, making the weekend work unnecessary. Indeed, Mr Robinson formally offered to conduct the relevant work as weekday overtime in these proceedings. 4. Mr Judkins gave evidence with respect to the need to undertake weekend work as follows at [12]-[18] of Ex R4: "12. Given the nature of the services performed by the Branch, and the needs of the community, there is essential work which is required to be performed on weekends. This mainly relates to cleaning Hornsby CBD and cleaning public toilets (particularly parks and other public venues) and is conducted on both Saturdays and Sundays, early mornings (say, for example, between 5:00am to 10:00 am). 13. In order to complete the work, employee are required, as part of their roles, to perform a reasonable amount of rostered weekend overtime. This is usually one overtime shift of five (5) hours duration, three (3) weekends per month (either Saturday or Sunday). However, at this point only six (6) employees perform overtime three (3) weekends per month. The remaining four (4) employees (including Mr Robinson) perform weekend overtime two (2) weekends per month. 14. Generally, there are five (5) employees working each Saturday and three (3) employees working each Sunday. Despite, the number of weekend overtime shifts required to be performed, the roster is arranged to allow most employees get at least two (2) weekends with two (2) consecutive days off each month. 15. I am told, and verily believe, that the requirement to work weekend overtime: 15.1 has been a long-standing practice of the Branch for many years; and 15.2 has been regularly and routinely worked by Mr Robinson. 16. The approach of Council has been to, as much as possible, share weekend overtime equitably between all employees to ensure equal distribution of overtime for both income and for respite from weekend work. The equal distribution of weekend overtime creates a sense of fairness and equity amongst the team and avoids any grievances or complaints that particular workers are not 'pulling their weight'. 17. Rostering can also be made difficult (including to achieve the many objectives of Council) if an employee or employees decide to make themselves permanently unavailable to perform any weekend work. This is another reason why it is a requirement of the role to perform weekend overtime. 18. Weekend overtime is needed to ensure Council services the community and its needs." 1. Mr Judkins also addressed the need for weekend overtime to be conducted by the respondent at [101.8]-[101.11] of his statement, Ex R4. 2. Mr Robinson gave evidence that he had worked "plenty of overtime" in the twenty years he had been employed with the respondent. He gave evidence that the arrangement of weekend overtime had been informal but he had not understood there to be a requirement, with this situation changing just prior to his return to work from extended leave following his non-work related injury sustained in September 2019. 3. Mr Robinson gave evidence that when he first returned he was on the "toilet run" but at the time of giving his statement, he was working one of three sweepers either sweeping CBD Hornsby run, CRMs (which Mr Robinson described as, "like work-orders where someone rings up and thinks their street is dirty"), or finishing the rest of his run for the week with extra work being allocated if all was complete. He stated that usually another employee would complete the CBD work and he "will just be doing what I was doing during the week unless I am given a CRM which will usually be for an industrial area": Ex A1 at [29]-[36]. 4. Mr Judkin's was not challenged on the necessity of the work in question being conducted on the weekend. Rather, he agreed that the work being conducted is the same as the work conducted during the week. This does not mean that it is unnecessary to conduct the relevant work on the weekend. 5. The notifier also submitted that the work conducted by Mr Robinson was simply "overflow" from his weekday work. However, even on Mr Robinson's evidence there is work he is engaged in during the weekend overtime that needs to be conducted on the weekend. This includes responding to CRMs if required and although another employee usually conducts the CBD sweep, he may also be required to conduct that work too. There is an obvious need for this work to be conducted on the weekend, even if it is also conducted on a weekday. 6. The notifier sought to liken the circumstances in this matter to those considered by Full Bench of the Commission in Re Prison Officers, Department of Corrective Services (1988) 26 IR 266. This decision was published following a ministerial reference made under s 30B(1)(h) of the Industrial Arbitration Act 1940 (NSW), with respect to custodial officers. Specific reference was made to the following observations of Fisher P, (in the minority) at p 274: "What in fact the parties are facing is a management problem, not a wage problem. Every award of the Commission requires, by accepted industrial practice, that reasonable overtime should be worked. The overtime here is quite excessive and given the failure of management to effectively deal with the problem to date, the question obviously arises as to what the future holds. With prison populations still rising, it is not surprising that there appears to be no plan at all to reduce the amount of overtime. Either manning must increase, the delivery of services be reduced or management strategies must improve efficiency." 1. The factual context within which those observations were made included the finding that on average, the prison officers were receiving 50 per cent additional to the award salary levels from overtime earnings. That is not this case. Here, the overtime in question involves an average of only 2.5 hours per week. 2. I accept the evidence of Mr Judkin's that there is a necessity for members of the cleaning team to conduct work on weekends in order to meet the expectations and needs of the community. I also accept that there is a need for this work to be distributed evenly amongst the team and that if Mr Robinson doesn't work on weekends, this will impact on others in the team. However, this is not an end to the matter and it is necessary and appropriate that this be considered in light of other matters, included Mr Robinson's personal circumstances. 3. Although there was some inconsistency in the evidence about the reasons Mr Robinson did not believe the weekend overtime was reasonable, I have accepted the notifier's evidence with respect to that reason. With respect to those circumstances, Mr Robinson gave the following evidence in Exhbit A1 at [8]-[28]: "8. I live wife my wife Lesley who is a registered nurse at Hornsby Hospital in the mental health unit. 9. Her roster is usually Wednesday to Sunday but they constantly call her up to do doubles, so if she's on nightshift they'll call her up at 1pm to do an afternoon shift until 9pm and then do her 9pm to 7am nightshift, and sometimes if she is on afternoon shift they will call her in for a morning shift. 10. She will usually do doubles once or twice a fortnight, but it can be more frequent than that. 11. I have two daughters, Jayde and Brittney. 12. Brittney lives with me. 13. Jayde lives with her husband John and my two grand-daughters Jorja who is 8 years old and Evie who is 5 years old at their place at Umina which is just around the corner from me. 14. Jayde is a Teachers Aide at Umina Public School working 9am to 230pm Monday to Friday and she works as a house cleaner for a few hours on either Saturday or Sunday. 15. John works for RMS having something to do with setting up traffic lights and works shift work with long and crazy hours including night shifts. 16. At about two years old Evie was diagnosed with Autism. Attached and marked RR-1 is a letter dated 16 December 2019 from Dr Damon Shorter who is Evie's paediatrician confirming Evie's diagnosis. 17. Evie's behaviour can vary. She is becoming very headstrong and she will try and manipulate you and other times she will be off and have a fit and won't do anything, she will start screaming and carrying on. When she goes into that stage you have to wait for her to come out and break the cycle. 18. Evie will experience really bad fits on average once a fortnight but it could be two or three times a week because she is supposed to have a routine and she just wants what she wants. 19. Evie needs to be heavily sedated in order to sleep and doesn't like it when people are asleep in the house when she is awake. As an example, if Lesley is working night shifts and is sleeping during the day and we are looking after Evie I have to be really careful and watch her otherwise she will run into the bedroom and wake Lesley up. 20. Looking after Evie is a real team effort. Sometimes Lesley and I will look after her after school or on the weekends if Jayde and John are working, or even just to give them a break. A lot of times Jayde or John need to spend time with Jorja as Evie is a lot of work and takes up a lot of time and Jorja misses out. 21. Evie likes to spend time with me because I am her Pop and she has some freedom with me. If Jayde tries to get Evie to do something Evie will often say "Pop tell her to leave me alone", it is sort of like I am her protector or something. 22. I broke my leg in about November 2018 and I was off work for around nine months. Evie was about 3 years old at the time and I spent lots of time with her while I was off work and we really bonded. 23. The bond set the tone for the relationship since then. Since the broken leg she just clicked with me because she spent a lot of time with me and we just built a bond. I was her grandfather before and we had a bond but it is really special now, she calls me her "autistic twin but that we are just not identical." 24. I don't care what it is, if she likes it I am going to find it and go and get it. 25. I'd like her to be able to be a normal young girl later on, and I don't know if that's going to happen but if I don't put in the effort now it's going to be too late when it happens. But if it doesn't happen but I've put in all the effort then I know I've done everything I can and that's what I'm all about. I have to do as much as I can to solve the problem. 26. If all my overtime where to end during the week I would be really struggling financially, but I don't care if I sleep on the street, I want to look after my kids and grandkids. Evie is hard work so I put in a bit of effort, and the weekends is where I can do it. 27. If I didn't have to work Saturday overtime then at 4am in the morning if Evie wants me I am available. If she doesn't want me that is fine, but later on in the day I would be around to go to Evie's place or she would come around and see me. 28. With my special bond with Evie working on a Saturday is now a sticking point for me." 1. Although Mr Robinson says that he would like to be available for his granddaughter if, for example, she asks for him at 4 am in the morning, there is no evidence that he has been called upon to provide such care between the hours of 5 am and 10 am on any Saturday when he has been rostered to work overtime. 2. Ms Robinson, Mr Robinson's wife gave evidence that caring for Evie is "a team effort", her husband will most often look after Evie on the weekends, that if he does not spend time with Evie, it results in more meltdowns and this is not good for their family. 3. Ms Payne, Mr Robinson's daughter stated in her evidence that currently, Evie sees her grandfather, "three (3) or four (4) times a week, for a quick visit after school and on the weekends for a few hours" and that having her father, "around to look after Evie is a big stress release that keeps me sane": Exhibit A4 at [12]-[13]. Ms Payne does not describe in her evidence the impact upon her or her daughter when Mr Robinson is required to work weekend overtime. 4. Despite representations previously made to the respondent about his caring responsibilities, it was conceded that Mr Robinson is not the primary carer of his granddaughter and does not have specific responsibilities with respect her care while her parents work. He is however, a very important person in his granddaughter's life and it is important to both him and his family that he is able to assist with his granddaughter's care. Mr Robinson provides important respite to his daughter and her husband. 5. If he is required to conduct the weekend overtime, Mr Robinson would be available to care for his granddaughter all weekend two weekends a month; and from 10 am on Saturday and all of Sunday two weekends a month. In addition, he would also be able to care for his granddaughter every second Monday when he has a rostered day off, for example, during school holidays. 6. Apart from Mr Robinson's desire to be available at any time his granddaughter wants him on the weekend, there is no evidence before the Commission to support the contention that this would significantly impact upon his relationship with his granddaughter and capacity to provide respite to her parents. 7. I agree with the notifier that it is relevant that what is being requested is overtime rather than ordinary work hours and that these hours are on the weekend which is traditionally a time for recreation and family. It is also relevant in my view that the overtime is regular, rather than a "one off" or occasional ad-hoc request and this weighs in the notifier's favour. There was however evidence of the respondent exercising flexibility in its approach with regards to whether the weekend work would be conducted on a Sunday or Saturday. 8. The notifier's argument that the number of hours Mr Robinson was required to work with the weekend overtime is excessive was unsupported by the evidence, taking into account the voluntary nature of the weekday overtime undertaken by Mr Robinson. Overtime of an average of two and half (2.5) hours a week is not excessive and does not warrant the engagement of a new and separate workforce to undertake the eight weekend shifts required. 9. It is also relevant that the respondent provided alternative options to Mr Robinson in terms of both being able to work on Sundays rather than Saturdays and the offer to explore an alternative role in Parks Service Unit that would relieve Mr Robinson of the requirement to work weekend overtime. The offer to find Mr Robinson another role was rejected by him because it involved other compromises to his working arrangements that were not desirable to him. It should also be noted that the respondent reduced the number of shifts required of Mr Robinson from three (3) to two (2) although this is an arrangement the respondent has in place with a number of other employees in this team. 10. Mr Robinson has worked under these conditions for a lengthy period of time and had recently signed a position description which expressly provided that the overtime was required on weekends in his position. 11. A determination of whether overtime is reasonable or unreasonable is ultimately a matter of balancing all of the relevant facts and circumstances of the overtime, including the matters contained in clause 19(viii)(c). Having considered all of these matters, I have decided that the requirement to work two (2) overtime shifts of five (5) hours per month is not unreasonable. 12. In making this determination, I have considered the personal circumstances of Mr Robinson and the importance of his role within his extended family to provide support for his granddaughter. The requirement to work the relevant overtime will not significantly impact upon the Mr Robinson's capacity to maintain his relationship with his granddaughter and support his daughter's family. While it is acknowledged that Mr Robinson wants to be available for his granddaughter whenever she wants him on the weekends, the impact of denying this upon Mr Robinson and his family must be considered in the context of the operational requirements of the respondent and impact on other staff members. 13. Balancing all of these matters I have concluded that the overtime that is required by the respondent it reasonable and not unreasonable. 14. For these reasons, I decline to make the recommendations sought by the notifier by the dispute. Orders: 1. I make the following order: 1. The proceedings are concluded. Janine Webster Commissioner 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: 26 October 2020