Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Nurses and Midwives' Association v Secretary, Ministry of Health in respect of Northern Sydney Local Health District [2022] NSWIRComm 1001 Hearing dates: 1 December 2021 Date of orders: 25 January 2022 Decision date: 25 January 2022 Jurisdiction: Industrial Relations Commission Before: Muir C Decision: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation EMPLOYMENT AND INDUSTRIAL LAW — Contract — Terms EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Grounds — Carer's responsibility discrimination EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Health professionals — Nurses Legislation Cited: Anti-Discrimination Act 1997 (NSW) Industrial Relations Act (1996) Cases Cited: Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 Hayne v Illawarra Shoalhaven LHD [2021] NSWCATAD 171 Tebb v State of NSW [2021] CATAD 104 CFMEU v SWSLHD [2016] NSWIRComm 1047 Category: Principal judgment Parties: New South wales Nurses and Midwives' Association (Applicant) Secretary, Ministry of Health in respect of Northern Sydney Local Health District (Respondent) Representation: Ms A Ambihaipahar for the Applicant Mr A Quested with Ms S Eldridge-Smith for the Respondent File Number(s): 2021/269355 Publication restriction: Nil decision 1. This dispute concerns the wish of a member of the applicant ("the Employee"), who is a permanent part-time employee of the respondent, to be rostered only on shifts across Friday, Saturday, Sunday and Monday, in the face of a preference by the respondent to roster the employee across seven days of the week. 2. The Employee has worked for the respondent on a part-time basis for many years. She seeks to confine the days on which she will be rostered by the respondent on the basis that she is committed on the other days as the primary carer of her son. 3. The respondent asserts that it is unable to accommodate the Employee's desired limitations on working days for a range of reasons, including rostering fairness, skill mix on shifts across the week, existing staff vacancies, difficulties with filling the roster on some of the days the Employee does not wish to work, skill retention for the Employee, and clinical supervision of the Employee. 4. In its dispute notification, in its submissions, and at hearing, the applicant proposed that "the industrial issues of concern for the Industrial Relations Commission of New South Wales … to address" were: 1. Whether the respondent's demand for the Employee to be available seven days of the week when she is a part-time employee is reasonable; 2. Whether the respondent failed to comply with clause 49 of the Award by failing to take all reasonable steps to ensure the Employee is not discriminated against because of her carer responsibilities; 3. Whether the respondent denying the Employee a temporary arrangement in line with her wishes and/or the rostering demand is indirectly discriminatory based on the grounds of her carer responsibilities; 4. Whether the respondent has complied with the Flexible Working in the NSW Public Sector framework; and 5. Whether the Employee's flexible working arrangement should be provided for at least another 12 months. The evidence 1. It was common ground that the Employee is a registered nurse with considerable experience, employed to work part-time for the Assertive Outreach Team of the respondent. This team provides health services to people with chronic and enduring mental health conditions (the "Services"). The Employee's personal circumstances 1. The Employee gave evidence that as the carer of her 14-year-old son she has reliably only the support of her husband, her son's father. She described having no extended family in Sydney to assist with her carer responsibilities. 2. The Employee gave evidence that she "[had] been working 3 days across Mondays, Fridays, Saturdays and Sundays so [she could] manage [her] son's schooling commitments and caring responsibilities." She described these responsibilities as including taking her son to school, tutoring, band practice and sports activities. 3. The Employee gave evidence that: 1. Her son participated in a number of activities to assist with reducing and/or preventing asthma symptoms, although she did not say what these activities were specifically. She noted that her son is asthmatic and has an asthma plan. The plan was attached to her witness statement. 2. Her son plays the trombone in a special music stream at school and has regular band practices that commence either before or after school. She described the trombone as bulky, weighing approximately 6 kg and with dimensions of approximately 92 cm x 35 cm x 28 cm. 3. Her son typically carries a backpack to school weighing approximately 8 kg; 4. She had managed to create predictability for her son to ensure he has the capacity to take on his extracurricular activities in a caring environment; and 5. It would be too difficult for her son to attend school and his after-school activities by bus, as the bus routes in the relevant area had recently changed. In this regard, the Employee attached two articles reporting on changes to bus routes. The Employee gave verbal evidence that for her son to take a bus to school "… it's a decent walk, a hop on a bus, and another 20-minute walk." 1. The Employee made the distinction between a parent or carer and a "primary carer", preferring the latter term for herself. She described a primary carer as the subset of parents/carers who "do all the heavy lifting" in caring for their child. 2. The respondent was aware of the Employee's personal circumstances, including those relating to the care of her son. The respondent did not take issue with the evidence given by the Employee about her personal circumstances, but did not agree with the Employee's position as to the impact this should have on the respondent's rostering. The Employee's desired rostering arrangements 1. The Employee sought to work her part-time hours, on any shift, only on Friday, Saturday, Sunday or Monday. This was explicitly on the basis that she wished to care for her son, including as set out above, on Tuesday, Wednesday and Thursday, and had arranged her son's commitments accordingly. 2. It was clear from the evidence that the Employee had, for many years, been able to restrict her work to shifts on Friday, Saturday, Sunday or Monday. In her witness statement, the Employee gave evidence that this arrangement had been verbally agreed by a previous manager, sometime in or around early 2013. 3. During cross-examination of the Employee, it became clear that in practice the arrangement had not been effected through an overarching agreement to restrict her shifts to those days. Rather, it had been effected through the then roster drafting process allowing each staff member of the Service, in the words of the Employee, "to pencil in" on a draft roster the days and times of all the shifts they wished to work for a roster period. 4. The Employee gave evidence that in or about October 2020 the respondent advised the employees of the Service that the practice of employees pencilling in all their shifts was to cease. Set out in more detail below, the rostering process was to be subject to tighter management control. Rostering arrangements of the Services 1. The Service's Nursing Unit Manager ("NUM") gave evidence that it was the respondent's policy and expectation that clinical employees providing the Service are subject to a rotating roster, to be rostered on any of the days over which the Services are provided to its clients. The NUM's evidence was that such shift arrangements are an inherent expectation of employment at the Service. 2. It was common ground that a four-week roster was prepared in advance, initially as a draft roster on which the Service's employees could provide feedback. The feedback could be an informal request for changes to the draft roster, could be constituted by a so-called "red request" or could be the subject of a Temporary Individual Roster Arrangement ("TIRA"). 3. The NUM gave evidence that that wherever possible she accommodated informal requests. The NUM's evidence was that not all requests could be accommodated for a range of reasons including operational capacity, the requests of other employees, and the NUM's ability to source other staff, which varied across different days of the week. 4. It was common ground that full-time employees of the Service are now entitled to four red requests per roster period, and part-time employees to two red requests per roster period. The Employee described a red request as a request not to work a specified day or shift, or to definitely work a specified day or shift. The NUM described a red request as one which would rule out an employee working on a specified day or shift. 5. It was common ground that a TIRA was a formal agreement which could, inter alia, and for a limited period, allow an employee to have an accommodation so that they were not required to be available to work across the full range of days and hours during which the Service was provided. 6. It was the Employee's evidence, and obvious on any analysis, that among the rostering arrangements available, only a TIRA could provide the rostering certainty which she sought. 7. The NUM gave evidence that two thirds of the Service's employees had caring responsibilities, and that this led to various requests for shift allocations that accommodated those responsibilities. 8. She also gave evidence of the difficulties in creating the roster given the seven day a week, and broad span of hours, over which the Service is provided. Her evidence was that shifts on certain days of the week are more difficult to fill if the permanent employees of the service are not rostered on those days. 9. The NUM gave evidence that Tuesdays and Thursdays are the most difficult days to fill if the permanent employees of the Service are not rostered on those days. 10. Her evidence was that it had been "really hard" to fill the weekday shifts during the periods when the Employee had had an approved TIRA which excluded the Employee working Tuesday, Wednesday and Thursday. 11. Under cross-examination about approved positions at the Service which are currently vacant, the NUM gave evidence that these vacancies added to the rostering difficulties she faced in preparing a seven-day a week roster. 12. Also under cross-examination, the NUM rejected the idea that taking into consideration the availability of casual employees amounted to preferencing them for weekend shift work. The NUM's evidence was that casual staff did not get to request their preferred shift; they were either available or not available and were not guaranteed to be rostered for any shifts. She denied having a preference to roster casual employees on weekends. 13. The NUM gave evidence that whilst shift swapping by agreement between employees was permissible, it was subject to her approval, including because of the different professions employed to work in the Service. For example, a registered nurse would not automatically receive approval to swap a shift with an allied health professional. 14. The NUM also gave evidence that weekend shifts were desired by the permanent employees of the Service. She emphasised that it was her practice, and desired by the employees, for weekend shifts to be shared evenly amongst the Service's permanent employees so far as was possible. 15. Under cross-examination, the NUM gave evidence that she was employed part time, and had a fixed roster of hours, including not working on Thursdays. Her evidence was that this was as required by the respondent. The NUM's evidence was that she had a purely management role and did not perform clinical duties for clients of the Service. Requests by the Employee for rostering accommodation 1. After the respondent made clear that the Service's employees were expected to be generally available for rostering on any of the shifts over the full span of seven days over which the Service is provided, the Employee sought a series of TIRAs to provide the rostering accommodation which she desired. 2. The Employee was granted a series of TIRAs on the terms sought by her, but for shorter periods than sought by her. In the period between October 2020 and September 2021 extensive correspondence was exchanged between the applicant and the respondent concerning the granting to the Employee of a rostering arrangement whereby the Employee could confine her rostered shifts to Friday, Saturday, Sunday or Monday. 3. In September 2021 the respondent granted the Employee a further TIRA, to expire on 15 November 2021. The respondent made clear that would not agree to a further TIRA on the same terms for the Employee. 4. Under cross-examination, the Employee conceded that the respondent had offered modified shift arrangements for Tuesday, Wednesdays and Thursdays, including modified start and finish times. This could, for example, have accommodated drop offs for band practices before school. Her evidence was that while this would have assisted, it would not have provided her desired outcome of only being rostered Fridays to Mondays. Rostering arrangements of other services provided by the respondent 1. The respondent led evidence from managers of two other generally similar services operated by it; through the manager of that service in one case, and through the senior manager overseeing a number of similar services in another case. 2. In each case the evidence was that employees engaged as registered nurses in those services were expected to be available to be rostered across the full span of hours and days on which those services operated. In some cases, this was 24 hours a day, seven days a week. The evidence of both managers was that this was a general expectation of nursing staff employed as shift workers in such services. 3. Each of the managers agreed with the NUM of the Service that informal requests based on draft rosters, red requests, employee-initiated shift swaps and TIRAs were the means by which employees in such services could obtain or avoid specific shifts. 4. Under cross-examination, both managers agreed that they had no line management responsibility for the Employee. Nor did they have knowledge of the Employee's specific circumstances. The applicant's submissions Permanent part-time work 1. The applicant began its submissions by taking the Commission to the origins of permanent part-time employment. The applicant placed much emphasis on permanent part-time work as a vehicle for those with caring responsibilities to balance their working and other responsibilities more easily than would be possible as a full-time employee. 2. The applicant put to each of the respondent's witnesses that employees seeking part-time work would likely have other responsibilities, such as caring responsibilities, which prevented them working full-time. While it seems likely that many part-time employees have such responsibilities, none of the respondent's witnesses professed to understanding the motivation of their employees for seeking part-time employment to a sufficient degree to agree with what the applicant had put to them. The Public Health Systems Nurses and Midwives (State) Award 2019 and letter of offer 1. The applicant took the Commission to relevant clauses of the Public Health Systems Nurses and Midwives (State) Award 2019 ("the Award"), submitting that nowhere in the Award was there an express requirement for part-time shift workers to be available to be rostered seven days a week. 2. Similarly, the applicant submitted that the Employee's letter of offer contained no express requirement for her to be available to be rostered seven days a week. Flexible working commitment 1. The applicant referred the Commission to New South Wales government sector commitments to flexible working, although without taking the Commission to any specific requirement. 2. The applicant submitted that the respondent had not provided any evidence to warrant declining the flexible working arrangements sought by the Employee. The applicant submitted that the respondent instead relied on broad assertions unsupported by appropriate evidence. Rostering resource manual 1. Annexed to the Employee's witness statement was a document entitled "Rostering Resource Manual: Version 2.2", published by the New South Wales Ministry of Health. On page 2 of the Manual, its purpose is described as being: "… to inform, guide and educate staff with rostering responsibilities in relation to planning, developing, maintaining and operating rosters that meet patient, staff and organisational needs. The manual contains principles and rostering guidelines which outline mandatory obligations… with respect to rostering as well as tools to facilitate best practice rostering and reporting across the state. …" 1. The applicant submitted that the Manual did not provide a cap on how long a TIRA could be in place, nor did it prevent further, and indeed consecutive, TIRAs being approved after the expiry of a previous TIRA. 2. The applicant took the Commission in particular to page 47 of the Manual and to two of the principles set out on that page, being: "When developing rosters, roster preferences of permanent staff are to be met before those of casual staff. … … Managers should also be mindful that there may be a legislative requirement which should be noted in considering requests for certain reason. One example is that under the Anti-Discrimination Act, staff with carer responsibilities and/or disabilities have the right to request that reasonable adjustments be made to their roster to enable them to participate equally in employment with others who did not have such responsibilities or a disability." 1. Referring to the first of these principles the applicant submitted that the evidence of the NUM, that many casual staff engaged to fill gaps in the registered nursing roster of the Service were only available on weekends, amounted to failing to give preference to the permanent employees before those of casual employees. 2. The applicant's submissions on the second principle emphasised the next of the applicant's submissions. Anti-Discrimination Act 1. The applicant took the Commission to the Anti-Discrimination Act 1997 (NSW), and in particular section 49T of that act. 2. The applicant submitted that the Employee's evidence concerning her carer responsibilities for her son relevantly engaged paragraph 49T(1)(b), and the respondent's requirement for the Employee to be available for work on any of the days and hours during which the Service is provided is therefore indirect discrimination. 3. In particular, the applicant submitted that the respondent was obliged to make reasonable adjustments to any policy or requirement with which a substantially higher proportion of persons who have carer responsibilities would face difficulty in being able to comply, unless the respondent could show evidence of unjustifiable hardship in making that accommodation. It submitted the respondent had not made out such hardship. 4. The applicant submitted that the respondent was bound to similar, or effectively the same, obligations pursuant to clause 49 of the Award. I note that clause 49 is effectively aspirational, and in terms provides that it does not create any legal rights or obligations beyond those already imposed by the Industrial Relations Act or the Anti-Discrimination Act. Other matters 1. The applicant submitted that any rostering difficulties arising from staffing vacancies at the Service were matters that the respondent should have to deal with and they should not in fairness have consequences for the Employee's request. 2. The applicant also submitted that the choices made by the Employee about her son's school and other activities, and indeed whether it was appropriate for him to take public transport, was solely a matter for the Employee to determine. Case cited 1. The applicant cited the decision of the Federal Magistrates Court of Australia in Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931. It was submitted that " … in the context of the Applicant having a disability, the Federal Magistrates Court found that it is an unreasonable requirement/direction for a nurse to be readily available 24/7 …". Orders sought 1. The applicant sought the following from the Commission: 1. A recommendation or direction that the respondent comply with its obligations under the Flexible Working in New South Wales Public Sector framework and/or Anti-Discrimination Act. 2. A recommendation or direction that the respondent provide the Employee at least 12 months flexible working arrangement or TIRA arrangement, subject to reviews every 3 months and review for an extension, to allow her to manage her caring responsibilities. The respondent's submissions 1. In short summary, the respondent's case was that the Employee worked in a small team, which provided services on a seven day a week basis over a span of hours from 8:00 to 22:00. Accordingly, the employees of the Service were required to be available to be rostered on any of those days. Exceptions did not include a right, even for part-time employees, to limit the days on which they made themselves available to be rostered. Need for rotating roster across seven days 1. The respondent submitted that neither the Award, nor the Employee's letter of engagement limited the days on which the Employee could be rostered. It submitted that it was common practice in the New South Wales public hospital system that shift workers are rostered on a rotating basis for shifts which covered the full span of hours of the service in which they are employed. 2. It submitted that without shift worker classifications in the Award, the public health system would "essentially close" as it would not have the ability to provide the resources needed to operate its services on a 24/7 basis. Contrasting restrictions provided for day workers, the respondent submitted that the Award does not place restrictions as to when shift workers can be rostered. 3. The respondent submitted that this form of rotating roster was a requirement to fully staff such services, and that it specifically applied to the Service in which the Employee worked. It submitted that setting rosters was a necessary management prerogative. 4. In the respondent's submission, it was wrong to say the Employee needed to be available 365 days of the year. The Employee would be rostered four weeks in advance, and only rostered three or four shifts a week. 5. The respondent referred to the evidence of its witnesses, and in particular the NUM, in support of its submission that to grant the Employee her desired roster outcomes would effectively result in the Service's roster being built around a single employee. That would be unfair to other employees if they were not provided similar accommodations. 6. The respondent further submitted that if it agreed to the roster arrangement sought by the Employee it would have other employees of the Service seeking related accommodations and that it would become impossible to build a roster which would allow the Service to properly function. Accommodation of employees with carer responsibilities 1. The respondent referred to evidence from the NUM that a significant proportion of employees of the Service have carer responsibilities ranging from children to elderly parents, and one staff member who has a sibling with a disability. 2. The respondent also pointed to offers by it to allow the Employee flexibility around starting and finishing times on Tuesdays, Wednesdays and Thursdays as evidence of the respondent's genuine attempts to be flexible. 3. In its written submissions, the respondent submitted that the key concerns it had with agreeing to the Employee's request included: 1. That doing so would leave the Employee with an inequitable proportion of weekend shifts; 2. The risk of the Employee losing skills by not working across the full range of the Service's functions; 3. The increasing difficulty faced by the Service in filling its midweek roster with appropriate mixes of skill and experience; and 4. The precedent this would set for any other employees of the Service. 1. The respondent further submitted that other reasons for declining the request included: 1. In accepting employment with the Service, the Employee had agreed to work a rotating roster over the span of hours of the Service; 2. The need to cover certain specialised clinics provided by the Service on Tuesdays, Wednesdays and Thursdays; and 3. Maintenance of skill mix and equity in rostering across the hours of the Service. 1. The respondent denied treating the Employee differently or unfavourably in a way which would breach the Anti-Discrimination Act, submitting that many other employees of the Service have carer responsibilities. 2. It denied that the Employee could not comply with its rostering requirements. Case law 1. The respondent took the Commission to two decisions of the NSW Civil and Administrative Tribunal, and one of this Commission. 2. Citing the decision in Hayne v Illawarra Shoalhaven LHD [2021] NSWCATAD 171, the respondent submitted that the Tribunal found that a rotating roster "… was reasonable and was in accordance with the expectations of all employees within the team." This was submitted as relevant, as the Service has "… nine employees … who have varying levels of carer responsibilities". 3. In Hayne, an employee had sought to resist being placed on a rotating roster because of established arrangements that the employee had made in respect of caring for his two children. 4. The Tribunal in Hayne found that the employee had not established that he could not comply with the rotating roster requirement. 5. The respondent also took the Commission to the decision in Tebb v State of NSW [2021] CATAD 104. It submitted that in Tebb the Tribunal had found that the employer declining to approve a flexible working arrangement was not a breach section 49T of the Anti-Discrimination Act, in circumstances where the employee had sought to access the arrangement due to parental responsibilities. 6. Finally, the respondent took the Commission to the decision of Commissioner Stanton in CFMEU v SWSLHD [2016] NSWIRComm 1047 ("Zammit"). It submitted that Commissioner Stanton had found that " … employers have the right to allocate and arrange work for employees and require employees to respond to reasonable direction, even if it disrupts longstanding flexible work arrangements." Summary 1. In summary, the respondent submitted that it is appropriate and reasonable for it to decline the requested rostering arrangement. The request had been accommodated, via TIRAs, for more than a year prior to the latest request, giving the Employee time to make alternative arrangements. It was submitted that it was a purely management decision, and not something within the capacity of the applicant or the Employee to determine how and if such rostering requests could be approved. This was put on the basis that only the respondent is able to have a holistic view of this Service, its requirements, consumer needs and other staffing and skill mix considerations. Consideration 1. The applicant's case was put on the basis that the Employee should, as a general matter of fairness, be afforded rostering arrangements which would allow her to work all of her permanent part-time hours on Friday, Saturday, Sunday or Monday. It was not put on the basis that the Employee had a specific agreement with the respondent for this arrangement, nor that this was the established practice for the Employee, which could only be changed through negotiation or agreement with the Employee. 2. Despite the Employee's evidence in her written witness statement that she had agreed this arrangement with a previous manager, the evidence at hearing established that there was no specific agreement with the Employee upon which the respondent previously accommodated Employee's desired rostering arrangement. 3. It was clear from the evidence of the Employee that prior to approximately October 2020, all employees of the Service effectively exercised a right to select the shifts which they would work to make up their contracted hours. In the Employee's case this resulted in her being able to select, in her words, "… 16 indications on the roster …" which she wished to work over each four-week roster. 4. After that time, it was clear that the management of the Service took firmer control of roster drafting, focusing on building the roster based on the operational needs of the Service and its clients. 5. The applicant proposed a series of "industrial issues of concern" for the Commission to address in arbitrating this dispute. It also proposed orders which it asked the Commission to make. 6. I have answered each of the applicant's articulated industrial issues of concern, although I do not consider these are the most useful way for the Commission to analyse the issues in dispute. 7. In my view, the proper questions for the Commission to address are whether, for any one or more of the reasons advanced by the applicant, the Commission should order, direct or recommend that the respondent give the Employee either: 1. The rostering accommodation specifically sought by the Employee; or 2. An alternate rostering accommodation, less generous than that sought by the applicant, but more generous than currently offered by the respondent. 1. Regardless of the questions being addressed, I would not make the first of the orders sought by the applicant. Of course, the respondent should "comply with its obligations under the Flexible Working in New South Wales Public Sector framework and/or Anti-Discrimination Act 1977 (NSW)." However, without greater specificity I consider that it is not appropriate to recommend or direct that the respondent comply with self-evident obligations. 2. Depending on the answer to the questions which I consider the Commission should address, the second order sought by the applicant, or some variation of it, might be appropriate. Origins of permanent part time work 1. The applicant's submissions as to the origins of permanent part-time work are in general terms uncontroversial, and I accept that permanent part-time work was overwhelmingly driven by the needs of women and a desire to provide industrial protections for women, and in particular women with carer responsibilities. 2. Nothing in the evidence before the Commission, nor in the submissions of either party, could lead to a conclusion that the respondent has implemented any rostering arrangements or other requirements which offend at large the purpose of permanent part-time employment. 3. The Service has a significant proportion of permanent part time employees, which is unsurprising given that two thirds of its employees have carer responsibilities. 4. The evidence was that the Service made considerable efforts to accommodate the caring needs of its staff. Anti-discrimination obligations 1. In exercising functions pursuant to the Industrial Relations Act (1996), the Commission is required to take into account the principles contained in the Anti-Discrimination Act. 2. In the matter before the Commission, and on the basis of arguments by the applicant, I address this requirement by examining whether the applicant has made out a case that the respondent has indirectly discriminated against the Employee by declining her desired rostering arrangements. 3. In its submissions on the Anti-Discrimination Act, the applicant focused on the failure of the respondent to demonstrate unjustifiable hardship to the respondent in declining the rostering accommodation sought. 4. Through the evidence of the NUM, the respondent was able to demonstrate the significant difficulties it would face in accommodating the Employee's rostering request. This included the actual difficulties experienced during the time the Employee was granted TIRAs. 5. Based on the evidence that two thirds of the Services employees have carer responsibilities, I consider it would have been difficult for the applicant to have established that the respondent has created a requirement which indirectly discriminates against its employees with carer responsibilities. There was scant evidence, and only brief submissions, on this point. 6. In any event, I have been unable to conclude that a requirement that the Employee work a rotating roster across all seven days of the week is a requirement with which she cannot comply. As the respondent submitted, this rostering requirement would not have the Employee actually working each day that she seeks to avoid being rostered. Based on the evidence of the NUM the Employee would be rostered two out of every four weekends and across a range of weekdays. 7. I accept absolutely that it is a matter for the Employee to determine the schooling and extracurricular activities of her son. Nevertheless, I am able to, and should, consider objectively whether those arrangements mean that the Employee cannot comply with the respondent's rostering requirements. 8. The Employee's son is 14 years old and attending high school. While the evidence was that the Employee's son is asthmatic, neither the Employee's evidence, nor the applicant's submissions made anything more than the bare fact of his being asthmatic. The Employee's son's asthma plan appeared to be a generic stepped guide to responding to different levels of asthma symptoms. I was not taken in the evidence to any heightened vulnerability of the Employee's son above his being asthmatic as such. 9. The Employee's evidence as to the difficulty of her son catching a bus to or from school was, in the end, little more than an assertion that it was difficult. She attached to her written statement two articles which reported that changes had been made to bus routes but did not include any timetables or route descriptions relative to either her home, her son's school or his after school activities. The totality of the evidence cannot establish the asserted difficulties of her son taking the bus. Flexible Working the NSW public sector 1. The evidence of the NUM, and to some extent of the Employee, showed both that the respondent was committed at large to flexible working, and that it had in place a number of arrangements to facilitate flexible working, subject to its operational requirements. 2. The NUM gave evidence of the difficulties she faced in constructing a roster during the periods for which the Employee had a TIRA in place. 3. I accept the respondent's submissions that granting the rostering arrangements sought by the applicant would result in the respondent building its rostering around a single employee. 4. Accordingly, I can see no basis for the applicant's submission that the respondent has relied on broad assertions in declining the Employee's request for continuing rostering accommodation. Rostering resource manual 1. The applicant relevantly pointed to two specific aspects of the Rostering Resource Manual, being two principles guiding the drafting of rosters. The first of these concerned giving primacy to the rostering preferences of permanent staff over those of casual staff. The applicant submitting that taking into account the more ready availability of casual staff on weekends amounted to a breach of this principle. 2. While there is some apparent conflict in taking into account the more ready availability of casual employees on weekends, I find that the response of the NUM to this suggestion is an effective answer to the applicant's submission. The NUM is not preferring the casual employees, but rather responding to their availability. The casuals are not guaranteed to be rostered and may be offered no shifts. Permanent staff are guaranteed a set number of shifts, but with the trade-off of committing to those hours. 3. The second principle, i.e. the compliance with anti-discrimination obligations, has already been addressed above. Award and letter of engagement 1. Unsurprisingly, the applicant and the respondent took different views of the fact that the Award does not specifically address the hours over which a shift worker may be rostered. The applicant emphasises that the Award did not expressly require a shift worker to be available all the days a health service operated. The respondent emphasises that the Award did not expressly restrict the hours over which a shift worker could be rostered. 2. Neither party took the Commission to any extraneous material or history which could shed light on the appropriate interpretation. The applicant's submissions went no further than that the Award did not in terms specify that employees are required to be available all the days of the week. The respondent went a little further in making the point that without the ability to roster staff over the full span of hours of a health service, it is hard to set a roster for such a service. 3. Addressing the parties' submissions on this point, the respondent's is more objectively suited to the circumstances of the workplaces covered by the Award. There is force in the respondent's submission that without the ability to roster shift workers over the full span of hours of a service in which they are employed, it could become impossible for seven day services, and especially seven day-24 hour services, to operate effectively. 4. I have drawn some general support for this conclusion from the evidence of the managers of the other services of the respondent who testified. They operate services over seven days and roster their permanent employees over the full span of days and hours over which their services operate. While they do not supervise the Employee, and have no specific knowledge of the Employee's circumstances, I accept that they manage generally similar services to the Service. 5. The respondent's position as to the effect of the Award not expressly addressing the days over which a shift worker may be rostered is to be preferred over the applicant's. 6. I have reached the same conclusion about the Employee's contract of employment/letter of offer being similarly silent as to the days on which the Employee may be rostered, for the same reason. Cases cited 1. Neither party took the Commission in detail to the decisions they cited, nor to the underlying facts of each of those matters. I have read the decisions and address their relevance below. 2. The decision in Tebb, cited by the respondent, is not in my view relevant to the current dispute. This is because in Tebb's case, the tribunal found that the key issue was the employer's lack of awareness of the employee's carer responsibilities. In this proceeding, the respondent was fully aware of the Employee's circumstances. 3. Rawcliffe's case is distinguished, as it was based on a finding by the Court that the employee had made out a case that he had been subject to a requirement with which he was unable to comply, due to his disability. In that case employees without that disability were able to comply with that same requirement. In the present case, the applicant did not persuade me that the Employee has been subject to a requirement with which she is unable to comply. 4. The issues in dispute in Hayne and Zammit are more closely related to those in issue in the current dispute. I am reinforced that the logic and outcome of those decisions are generally supportive of the outcome I have reached, but do not consider they are more than supportive of the conclusions I have reached. Matters not relevant to the decision 1. I want to briefly note some matters which were traversed at the hearing which I have ultimately found to be not relevant, and which I have not taken into account in arriving at this decision. 2. There was brief reference to the Employee's secondary employment, and her time commitment to further formal education, and the Employee answered questions from the Commission about each commitment. I do not consider either of these to be relevant. Based on the Employee's evidence, I do not consider either of these to have been a relevant motivating force in the Employee's rostering desires. 3. I have also not considered paragraphs 57 to 63 inclusive of the respondent's written submissions. The applicant's submission that the matters referred to therein being inadmissible is accepted. These paragraphs refer to matters occurring during private conferences in the Commission. 4. I consider the evidence of the managers of the other services of the respondent relevant to the limited extent noted above in [110]. Outcome 1. It is not appropriate for the Commission to order the respondent to provide the Employee with either: 1. The rostering accommodation specifically sought by the Employee; or 2. An alternate rostering accommodation, less generous than that sought by the applicant, but more generous than currently offered by the respondent. 1. In reaching my conclusion on the second question I am reinforced by the respondent's offer for flexibility as to starting and finishing times on Tuesdays, Wednesdays, and Thursdays, and which the Employee rejected because it did not meet her request in full. I would have had more difficulty in reaching my conclusion without this proffered flexibility, or in the face of some greater flexibility from the Employee. 2. I answer the five questions proposed by the applicant as: 1. Yes; 2. No; 3. No; 4. Yes; and 5. Not in the terms sought by the Employee, and again note the respondent's offer for flexibility as to starting and finishing times on Tuesdays, Wednesdays, and Thursdays. Orders 1. The application is dismissed. C Muir COMMISSIONER ********** Amendments 25 January 2022 - Minor amendment to cover sheet. 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: 25 January 2022