Nurses and Midwives' Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) (No 2) [2013] NSWIRComm 29

Industrial Relations Commission New South Wales Medium Neutral Citation: Nurses and Midwives' Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) (No 2) [2013] NSWIRComm 29 Hearing dates: 15 March 2013 Decision date: 17 April 2013 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Walton J, Vice-President, Staff J Decision: (1) Leave to appeal is granted. (2) The determination at [99] of the decision of Harrison DP that there is no other legal entitlement to a paid meal break other than under the Award is quashed. (3) His Honour's finding at [100] that the notice and consultation undertaken by the parties has been reasonable in all the circumstances to bring to an end any agreement implied or notional that nurses at the Forensic Hospital work through meal breaks as a matter of routine practice is set aside. (4) His Honour's direction to management at [101] to put in place an appropriate system for supervisors to clearly record any and all requirements for a nurse to work through a meal break and for the release of a nurse to an off duty area for the purpose of a meal break is confirmed. (5) His Honour's refusal at [102] to refer the appellant's application to vary the Award in respect of paid meal breaks pursuant to Principle 8 of the Wage Fixing Principles is set aside. (6) The appeal is otherwise dismissed. Catchwords: APPEAL - Application by NSW Nurses Association for leave to appeal and appeal - decision at first instance upholding right of respondent to cease paying for meal breaks taken by nurses at the Forensic Hospital Malabar - Interpretation of Award - Whether evidence of existence of contracts of employment with terms dealing with paid meal breaks - Whether express representations were made to certain nurses that constituted binding contractual terms regarding payment for meal breaks - Industrial merit of nurses continuing to be paid for meal breaks when not required to work during meal breaks - Leave to appeal granted - Determination at first instance that there is no other legal entitlement to a paid meal break other than under the Award is quashed - Finding at first instance that the notice and consultation undertaken by the parties has been reasonable in all the circumstances to bring to an end any agreement implied or notional that nurses at the Forensic Hospital work through meal breaks as a matter of routine practice is set aside - Direction to management to put in place an appropriate system for supervisors to clearly record any and all requirements for a nurse to work through a meal break and for the release of a nurse to an off duty area for the purpose of a meal break is confirmed - Refusal at first instance to refer the appellant's application to vary the Award in respect of paid meal breaks pursuant to Principle 8 of the Wage Fixing Principles is set aside - Appeal otherwise dismissed. Legislation Cited: Health Administration Act 1982 Public Service Act 1979 Cases Cited: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8; (2002) 209 CLR 95 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 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 Nurses and Midwives Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) [2012] NSWIRComm 148 Public Service and Professional Officers' Association Amalgamated Union of NSW v Director of Public Employment [2011] NSWIRComm 152 re Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd Re Ovetime [1977] AR (NSW) 17 State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: New South Wales Nurses and Midwives' Association (Appellant) Justice Health and Forensic Mental Health Network (a Division of NSW Health) (Respondent) Representation: Mr G Gibian of counsel (Appellant) Ms K Nomchong SC (Respondent) NSW Nurses and Midwives' Association (Appellant) Bartier Perry (Respondent) File Number(s): IRC 1184 of 2012 Decision under appeal 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 Date of Decision: 2012-11-05 00:00:00 Before: Harrison DP File Number(s): IRC 1841 of 2011