Health Services Union NSW v Health Secretary in respect of Central Coast Local Health District [2021] NSWIRComm 1039

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW v Health Secretary in respect of Central Coast Local Health District [2021] NSWIRComm 1039 Hearing dates: 29 January and 8 March 2021 Date of orders: 3 May 2021 Decision date: 03 May 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Award interpreted. Affected employees entitled to be paid at the ordinary rate of pay for excess travel time. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – dispute notification – award interpretation – excess travel – accustomed place of work – regularly required to commence duty by the employer – alternative place of work – in the employer's time – ordinary rate of pay Legislation Cited: Industrial Relations Act 1996 Cases Cited: Fire Brigade Employees' Union of NSW v Fire And Rescue NSW [2020] NSWIRComm 1022 State Rail Authority Firefighters' Award 2001 [2002] NSWIRComm 159 Texts Cited: Nil Category: Principal judgment Parties: Health Services Union NSW (Notifier/Applicant)

Health Secretary in respect of Central Coast Local Health District (Respondent) Representation: Mr J Fox (Notifier/Applicant)

Mr D Fuller of counsel (Respondent) File Number(s): 2020/00278016 Publication restriction: Nil

DECISION 1. On 24 September 2020, the Health Services Union NSW ("HSU") filed in the Commission a Notification of Industrial Dispute ("Notice") pursuant to section 130 of the Industrial Relations Act 1996 ("Act"). The dispute concerned a proposed temporary relocation by Central Coast Local Health District ("CCLHD") of employees from Wyong Hospital's Sterilising Services Department ("SSD") to Gosford Hospital ("affected employees") while the SSD underwent an upgrade. The respondent to the Notice is the Health Secretary in respect of CCLHD ("Health Secretary"). 2. The issue in dispute is the operation of Clause 13 – Excess Fare and Travelling of the Health Employees' Conditions of Employment (State) Award 2019 ("Award") with respect to the temporary relocation of the affected employees. Clause 13 is in the following terms: For the purpose of this clause accustomed place of work shall mean the site or campus where an employee is regularly required to commence duty by the employer. (i) An employee shall be required to proceed to the accustomed place of work and return home once on each ordinary working day or shift in the employee's own time and at the employee's own expense. (ii) (a) Where an employee is directed to report for duty to a place of work other than the employee's accustomed place of work the employee shall travel to and from the alternative place of work in the employer's time for those periods in excess of time normally taken to travel to and from the accustomed place of work. (b) If the excess of travelling time on a particular day or shift is greater than the prescribed ordinary hours of duty for the particular category of staff for that day or shift, then the excess of hours shall be paid at the ordinary rate of pay to the extent of the excess of travelling time. (c) Fares incurred by such employee in excess of the fares normally incurred in travelling to the employee's accustomed place of work and returning home from the accustomed place of work, shall be reimbursed. (d) Where the employee is required to report to an alternative place of work and has the prior approval of the employer to travel by his/her own mode of conveyance, the employee shall be paid a kilometre allowance for kilometres travelled in excess of the kilometres the employee normally travels between the accustomed place of work and home. The kilometre allowance will be as prescribed from time to time by the Crown Employees (Public Service Conditions of Employment) Award 2009, as varied or replaced from time to time. (iii) (a) Where an employer has determined that an employee or employees should report to a new accustomed place of work on a permanent basis, the decision must be discussed with the affected employee(s) and the local branch of the union prior to notice of changed accustomed place of work being given. (b) The employer shall give the employee reasonable notice of the requirement to report to a new accustomed place of work. For the purpose of this subclause "reasonable notice" shall be one calendar month prior to the date the employee is first required to report to the new accustomed place of work. (c) Where the accustomed place of work is changed on a permanent basis by the employer, the employee shall report to the new accustomed place of work on the date specified by the employer. (d) If there is disagreement about such decision after such discussion or if a significant number of employees are involved, the matter should be referred to the Secretary, who will discuss the matter with the Union and will determine the date upon which notice will be given the employee(s). (iv) (a) The provisions of this clause shall not apply to an employee appointed to regularly perform relief duties or to employees specifically employed to perform duties at more than one place of work except as provided in paragraph (b) hereunder of this subclause. (b) If a reliever incurs fares in excess of $5.18* per day in travelling to and from the relief site, the excess shall be reimbursed. Where a reliever, with the prior approval of the employer, travels by his/her own mode of conveyance and incurs travelling costs in excess of $5.18 per day to and from the relief site, such excess shall be reimbursed. The rate applicable shall be the kilometre allowance prescribed from time to time by the Crown Employees (Public Service Conditions of Employment) Award 2009, as varied or replaced from time to time, less $5.18. (v) No payment shall be made under this clause unless the employer is satisfied that the employee has incurred additional expenditure in having to report to an alternate place of work, at the direction of the employer. (vi) Travel, to an alternative place of work, either by public transport or own mode of conveyance, shall in all instances be by the most direct route. 1. The Notice contained the following: 4. The question, dispute or difficulty concerns the following industrial matters: 4.1. The HSU is in dispute with CCLHD with respect to the conditions by which employees can be relocated to an alternative work location. 4.2. Employees based in Wyong working in theatres and sterilising services are being temporarily relocated to Gosford. 4.3. The HSU does not oppose the move. A dispute has arisen about the entitlements that arise in relation to the move. 4.4. The HSU contends that clause 13(ii) is enlivened and applies to the circumstances. 4.5. The LHD believe they either do not have such a requirement or can avoid it. 4.6. As I understand it, the LHD intends to achieve this by unilaterally varying the employment contracts of employees such so as to change their 'accustomed place of work'. The 'contract' element is based on discussions I have had, the formulation in the correspondence we have been provided has more a character of unilateral declaration. That may be a distinction without a difference. 4.7. We have several issues with the LHD's approach, not least of all that it is a contrivance to avoid an award entitlement. 4.8. We also contend, and press that 'accustomed place of work' is a phrase that can only be interpreted by reference to fact, not by contractual declaration. We oppose the LHD's approach, and indeed consider it unlawful, for a number of reasons. 4.9. We are very much open to negotiating an arrangement that works for all parties during this time, but while the LHD believes they can merely avoid the entitlement there is no utility in such discussions. 1. Attached to the Notice was a draft letter which CCLHD proposed to be sent to affected employees. The draft letter was in the following terms: Dear [name] RE: Advice of change to regular place of work I write with reference to the current redevelopment occurring at Wyong Hospital which includes an upgrade of the Sterilising Services Department (SSD). As a result of this, SSD operations will be temporarily relocated to Gosford Hospital to ensure a safe work environment and to maintain service delivery. Commencing 14 December 2020, your regular place of work will be Gosford Hospital. It is anticipated Gosford Hospital will remain your regular place of work for a 5 month period. Therefore, effective 14 December 2020, in accordance with Clause 13(i) of the Health Employees Condition of Employment (State) Award 2019 (attached), you will be required to travel to and from Gosford Hospital on each ordinary work day or shift in your own time and at your own expense. Please be advised, during this time period, if you are required to perform duties at a site other than Gosford Hospital, the provisions of clause 13(ii) of the Health Employees Condition of Employment (State) Award 2019 shall apply. You will be provided at least one month notice regarding completion of the redevelopment and a confirmed date for the relocation of SSD operations from Gosford Hospital to Wyong Hospital. Thank you for your flexibility and patience with the redevelopment works. I am confident that the new and refurbished facilities at Wyong Hospital will be extremely positive for Wyong Hospital staff and ultimately for the safe provision of quality patient care. 1. The matter was initially allocated to Commissioner Stanton, who convened a series of compulsory conferences between 19 October and 24 November 2020. The dispute was not settled in conciliation and, on 24 November 2020, Commissioner Stanton issued a Certificate of Attempted Conciliation pursuant to section 135 of the Act. 2. On 26 November 2020, the HSU filed a Notice of Motion ("HSU Motion") which was, in effect, an application to the Commission to make an award to be known as the Central Coast Sterilising Services Wyong-Gosford Transfer (Interim) Award and to make certain recommendations which, together, would have bestowed certain benefits on the affected employees. 3. The matter was allocated to me and the HSU Motion was listed for hearing on 29 January 2021. On that occasion, after hearing from Mr Fox representing the HSU, I advised the parties that I would not make the award sought in the HSU Motion but would, after hearing the parties further, determine which part of Clause 13 of the Award applied to the affected employees. I listed that matter for hearing before me on 8 March 2021.