Notification under section 130 by Justice Health and Forensic Mental Health Network (a Division of NSW Health) of a dispute with NSW Nurses and Midwives' Association re paid meal breaks [2012] NSWIRComm 119

Industrial Relations Commission New South Wales Medium Neutral Citation: Notification under section 130 by Justice Health and Forensic Mental Health Network (a Division of NSW Health) of a dispute with NSW Nurses and Midwives' Association re paid meal breaks [2012] NSWIRComm 119 Hearing dates: 10 October 2012 Decision date: 05 November 2012 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Management right to organise work within award conditions - representations or offers to individual employees governed by award application - change not prohibited by memorandum of understanding on no extra claims. Practicality of achieving breaks daily operations issue governed by award. Where required to be on duty, meal break is paid, otherwise not. Sections116(3) and 116A(1) of Health Services Act not relevant. Payments are Award based and issue of Health Services Act does not arise. Catchwords: Industrial dispute - claim for payment of meal breaks - custom and practice - no extra claims - contractual obligations practicality of taking meal break in forensic hospital. S175 Award interpretation to resolve dispute - award provision opposed to routinely working through meal break, exception is by mutual agreement - no compulsion to agree - no agreement. Forensic hospital compared to prison hospital and health care in correctional facility - incarceration model compared to therapeutic model - practices different, custom and practice not applicable. Whether payment of meal breaks is prohibited by ss116(3) and 116A(1) of Health Services Act Legislation Cited: The Industrial Relations Act 1996 The Health Services Act Cases Cited: Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd Re Overtime 1977 AR at 17;Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) (2000) 106 IR 354PSA & the Zoo [2007] NSWIRComm 1080;Notification under s130 by Snack Brands Australia of a dispute with the National Union of Workers, NSW Branch & Anor re superannuation contributions [2000] NSWIRComm 243 Durnford v Allen Taylor and Company Limited 1990 34 IR 423; Duncans Holdings Limited v Cross and Others 1997 76 IR 261;Director-General of Education v Suttling (1987) 162 CLR 427 Category: Principal judgment Parties: Justice Health and Forensic Mental Health Network (a division of NSW Health) NSW Nurses and Midwives' Association Representation: Ms K Nomchong, SC (Applicant) Mr M Gibian (Respondent) Industrial Relations Commission of New South Wales File Number(s): IRC 1841 of 2011 Publication restriction: No