Industrial Relations Commission New South Wales Medium Neutral Citation: Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District [2016] NSWIRComm 1047 Hearing dates: 26/11 and 08/12/2015, 9, 10 and 15/03/2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: (1) The Union's application in IRC 2015/377318 is dismissed. (2) Mr Cameron Zammit and Mr Craig Zammit hours of work shall be 7 am to 3.30 pm commencing on and from Monday, 9 January 2017. Catchwords: Industrial dispute – arbitration – long standing flexible hours arrangement – application for a further extension rejected – affordability of after school child care – Respondent's policies considered – award provisions considered – budget deficit – "Whole of Hospital" approach to clinical care and engineering maintenance adopted to improve operational efficiency and reduce costs – remedies applicable under s 136 – orders sought do not fall within the scope of s 136(1)(b), (c) or (d) – Commission refused to make a recommendation or direction under s 136(1)(a) – Principles under Anti-Discrimination Act considered – rule in Jones v Dunkel considered – management prerogative – authorities considered – whether change in employee's start times is work which is unfair, unjust or unreasonable – HELD – change in employee's start time from 6 am to 7 am not unfair, unjust or unreasonable. Legislation Cited: Industrial Relations Act 1996 Health Services Act 1997 Anti-Discrimination Act 1977 Cases Cited: Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority [2007] NSWIRComm 162; Australian Services Union of New South Wales v Sydney Water Corporation [2004] NSWIRComm 294; BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 127; City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49; Department of Tourism Appointments [1980] AR (NSW) 241; Health Services Union v Ambulance Service of New South Wales re- Changes to Demand Protocol [2008] NSWIRComm 1027; Health Services Union NSW and Central Coast Local Health District re Regrade Policy [2013] NSWIRComm 44; HSUeast (now known as Health Services Union NSW) and Sydney Local Health District [2012] NSWIRComm 97; Industrial Relations Commission Decision 578/1989 [1989] AIRC 538; Industrial Relations Commission Decision 673/1993 [1993] AIRC 602; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Notification under Section 130 by the Ambulance Service of New South Wales of a dispute with Health Services Union re - threatened industrial action in Inner Hunter Area [2008] NSWIRComm 1136; Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd re reduction of hours [2002] NSWIRComm 208; NSW Nurses' Assoc & Ors and S W Syd Area Health Service [1994] NSWIRComm 147; NSW Teachers Federation v Department of Education and Training (2003) 121 IR 177; Police Association v NSW Police (No 3) [2005] NSWIRComm 243; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117; State Wage Case 2010 (No 2) [2011] NSWIRComm 29; State Wage Case 2015 [2015] NSWIRComm 31; Steel Works Employees and Engine Drivers, & Co (Australian Iron and Steel Limited – Port Kembla) Award [1956] AR 855; Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37; Sydney Water Corporation in Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd [2002] NSWIRComm 208; Sydney Water Corporation v Australian Services Union (NSW & ACT Branch) (2005) 146 IR 388. Texts Cited: Uniform Evidence Law , 7th edition, Law Book Co, 2006 Category: Principal judgment Parties: Construction, Forestry, Mining and Energy Union (New South Wales Branch) - Notifier South Western Sydney Local Health District - Respondent Representation: Ms L Charlson with Mr P Connell for the Notifier P Ginters of Counsel with Ms A Paul for the Respondent File Number(s): 2015/377318 (formerly IRC 938 of 2015) Judgment 1. This matter concerns a dispute notified to the Commission pursuant to s 130 of the Industrial Relations Act 1996 (the Act). 2. Shortly stated, the nature of the dispute concerns the refusal of the Construction, Forestry, Mining and Energy Union (New South Wales Branch) (the Union) to accept a decision taken by the South Western Sydney Local Health District (the LHD and Respondent) that Mr Cameron Zammit and Mr Craig Zammit (the Zammits) cease working "flexible working hours" from 6 am to 2.30 pm, Monday to Friday, and commence working the Respondent's standard maintenance staff hours of 7 am to 3.30 pm inclusive. Mr Craig Zammit is a leading hand and supervises painting work. The Zammits provide the core maintenance painting requirements of the Respondent primarily at Liverpool Hospital. On occasions, contract painters are engaged. 3. The Zammits are employed pursuant to the Public Health Service Employees Skilled Trades (State) Award (the Award). Clause 4 of the Award provides that ordinary hours of work for day workers are 8 hours per day to be worked between 6 am and 6 pm, Monday to Friday. 4. The Zammits have been working from 6 am to 2.30 pm, Monday to Friday for approximately 8 years. That arrangement allows them to collect their primary school children for whom they have carer's responsibilities at approximately 3 pm each afternoon. 5. In correspondence dated 4 April 2014, the District Director of Engineering, Mr Michael Feeney advised the Zammits that their application for a continuation of flexible work hours had been rejected. They were given four weeks' notice that on and from 5 May 2014, they would revert to working the standard maintenance hours of 7 am to 3.30 pm, Monday to Friday inclusive. 6. The Respondent's policy concerning flexible working arrangements states "approval will be for a maximum of 12 months". 7. Following representations made by the Union, the LHD approved an extension to the Zammits' flexible work hours arrangements. In an email to the Union dated 16 May 2014, Ms Jacqui Clark, an employee engaged in Human Resources stated: "…approval has been given for a further 12 month period however, the staff will be advised that they need to utilise this time to make alternate arrangements as a further extension will not be approved." 1. On 20 May 2014, Ms Jennifer Arnold, then Deputy Director Human Resources wrote to the Zammits to formally advise them that an extension to their "flexible work arrangement" beyond 31 May 2015 would not be approved and their hours of work would revert to 7 am to 3.30 pm, Monday to Friday, consistent with the core hours worked by maintenance employees. Ms Arnold also stated: Flexible work practices are granted to allow staff short periods of time to attend to medical or other pressing matters. In the majority of circumstances flexible work arrangements have been approved to allow staff time to make alternate arrangements for matters that are not work related. All flexible work arrangements are to be reviewed and approved by the Chief Executive annually. 1. Mr Graeme Loy, Director Operations, subsequently wrote to the Union on 4 July 2014 and advised: … I note that both Cameron and Craig Zammit have permission to commence work at 6am til 31 May 2015. In relation to flexible working arrangements, the applicable policy is Flexible Work Practices (SSW-PD2007_49) which states an approval in relation to flexible working hours 'will be for a maximum of 12 months'. On 20 May 2014, Ms Arnold wrote to both Cameron and Craig Zammit and noted that after 31 May 2015 a further 'will not be approved'. This statement is withdrawn. If either Cameron or Craig Zammit want to continue to commence work at 6am after 31 May 2015, an application to continue the practice must be made for a further 12 months. South Western Sydney Local Health District ('SWSLHD') will assess the application on its merits and in accordance with its policies. SWSLHD is committed to ensuring that our staff maintains a work life balance and where possible we do what we can to ensure that our employees' family responsibilities are accommodated. 1. Mr Ross Wenden, Group Manager Engineering wrote to the Zammits on 15 May 2015 in the following terms: We wish to remind you that in accordance with our correspondence to you last year, your current flexible working hours are to cease at the end of May 2015. We confirm that as from Monday, 1st June 2015, your working hours will be 7am to 3:30pm. 1. In an email dated 18 May 2015, the Zammits wrote to Mr Wenden seeking a further review of the LHD's decision to end the flexible working hours arrangement in the following terms: Regarding your letter dated 15th of May 2015, I would like to reapply for a continuation of our current work hours being 6am to 2:30pm. As stated in my previous application these hours of work are crucial to my family needs. The varied hours currently being worked by myself amount to a very minor accommodation on the part of the SWLHD and one which imposes no hardship on SWLHD. On weekdays I need to be available to pick up my children from school and care for them in the afternoons. The current agreed starting and finishing times allow me to both do my full hours at work as well as care for my children. I understand I will need to apply again in 12 months time although my family situation will not change in the near future. Your prompt reply to this application will be much appreciated. 1. On 1 June 2015, Mr David Fenech, Director of Human Resources advised the Zammits that approval of an extension to their future flexible working hours arrangement had been declined and they would commence working standard maintenance department hours from 13 July 2015: I refer to your current application for an extension of your Flexible Work Practice arrangement under which your rostered hours have been adjusted from 0700-1430 hours to 0600-1430 hours, Monday to Friday. As previously advised, flexible work hours are granted in accordance with policy (SSW_PD2007_049) Flexible Work Practices. Flexible work practice arrangements of greater than 8 weeks are to be reviewed and approved by the Chief Executive or Director of Operations as per the SWSLHD Delegations Manual. In granting approval to your previous request for extension, it was made clear to you at the time that an automatic extension of flexible arrangements should not be assumed and as such, there was a requirement on your part to make arrangements to transition back to normal hours. To date, you have not escalated any concerns to your manager in relation to transitioning back to your normal hours. I wish to advise you that approval for further extension of Flexible Working hours has been declined in line with the current Delegations Manual and that your working hours will revert to 0700-1500 hours Monday to Friday, effective Monday, 13 July 2015. Should you wish to discuss this decision in detail please do not hesitate to contact me on either 0477 346 135 of David.Fenech@sswahs.nsw.gov.au Additionally should you wish to appeal this decision you may write to the Chief Executive or Director of Operations directly outlining your request. 1. The Union wrote to the LHD on 2 June 2015 on behalf of the Zammits urging the continuation of the flexible working hours arrangements which was "crucial to their family needs". The Union also sought to draw the LHD's attention to the fact that Mr Wenden's advice "…from Monday, 1 June 2015, your working hours will be 7 am to 3:30 pm", was inconsistent with Mr Loy's correspondence dated 4 July 2014, where he advised the Zammits that they were able to apply for a further extension which would be assessed "on its merits and in accordance with its policies". 2. The Union subsequently notified a dispute to the Commission on 18 June 2015. In addition to the flexible working hours issue, the Union also raised certain issues concerning alleged bullying and harassment. Extensive conciliation followed before Commissioner Tabbaa. The flexible hours issue was ultimately referred to the Commission as presently constituted for further conciliation and arbitration. The dispute was subject to arbitration proceedings on 26 November, 8 December 2015, and 9 and 10 March 2016. 3. Shortly stated, the Union opposed the decision by the LHD to standardise the hours worked by the Zammits and considered it unreasonable that the LHD had sought to end a long-standing arrangement. It argued the arrangement was consistent with the Award and imposed no hardship on the LHD. 4. Liverpool Hospital (the Hospital) is the largest within the LHD. It is also one of the busiest Hospitals within NSW. Despite implementing a range of programs to improve efficiency and resource management, it is operating a financial deficit – approximately $8.2 million in 2014-15. 5. The Hospital has adopted a "Whole of Hospital" approach to improve both clinical and support services performance to better respond to its requirements. Accordingly, greater emphasis is now placed on trades' staff to perform their duties in a timely and efficient manner. This initiative also requires greater coordination of the work undertaken by all engineering staff. 6. Other than the Zammits, all trade staff work from 7 am to 3.30 pm inclusive, Monday to Friday, with the exception of two staff who operate the Hospital's Central Energy Station. Relevant Policies 1. Policies and procedures relevant to the determination of this dispute matter include: * The NSW Health Information Sheet Considering Flexible Work Requests (the Health Information Sheet); and * Flexible Work Practices, Policy Directive (SSW-PD2007_49) (the Policy Directive). Remedy Sought 1. During proceedings on 20 August 2015 and prior to arbitration, the Union advised the Commission: We'd be seeking orders from the Commission that the current hours be continued I think for the period of time that Mr Craig and Mr Cameron Zammit have children at primary school. 1. In email correspondence dated 2 November 2015, the Union clarified the relief sought and advised that "appropriate wording for the orders" sought "may be": That, for the period that Mr Craig Zammit has one or more children attending primary school, the Respondent will permit Mr Craig Zammit to continue to work his ordinary hours from 6am until 2:30pm each weekday in order to enable Mr Craig Zammit to pick up his child (or children) from school and care for his child (or children) in the afternoon. That, for the period that Mr Cameron Zammit has one or more children attending primary school, the Respondent will permit Mr Cameron Zammit to continue to work his ordinary hours from 6am until 2:30pm each weekday in order to enable Mr Cameron Zammit to pick up his child (or children) from school and care for his child (or children) in the afternoon. 1. Put alternatively, the terms of the order sought by the Union would require the Respondent to maintain the Zammits' current flexible working arrangement until the completion of the 2018 and 2019 school years. Question for determination by the Commission? 1. The primary position of the Respondent in final submissions was that it had the right to manage and regulate its business arrangements, including the working hours of the Zammits, unless those rights are exercised unjustly or unreasonably. Against that backdrop, the Respondent argued the nature of the proceedings call for the determination of the question: Does the Respondent's decision [following a transition period] to align the working hours of Craig and Cameron Zammit with those of the other trades staff in the Liverpool Hospital Engineering Services Department impose an "industrial injustice"? 1. For its part, the Union disagreed with the Respondent's characterisation of the question to be determined by the Commission. It considered the Commission, having regard to the nature of the proceedings, should determine the following question: As a matter of industrial justice, is it justifiable for the Respondent to refuse to permit Craig and Cameron Zammit to continue to start and finish work one hour earlier that other members of the Engineering Services Department at Liverpool Hospital so that Craig and Cameron Zammit are able to collect their children from primary school and care for their children each weekday afternoon. 1. Both questions are similar and shortly stated, require a "Yes" or "No" answer. Having considered the evidence, I have decided that the Respondent's assessment of what the Commission is required to determine in this matter best reflects the question for determination. Evidence Union 1. A dominant theme of the Union's evidence was that the Zammits were required to work flexible working hours to meet their family responsibilities. That work arrangement provided benefits to the Respondent and did not impose any barrier to productivity or risk to safety. Mr Craig Zammit is a leading hand painter and as such he and Mr Cameron Zammit perform the majority of their work with minimal additional supervision. There was no operational imperative for the Zammits to work from 7 am to 3.30 pm. Moreover, the relevant policies of the Respondent support flexible work arrangements to accommodate family responsibilities. Michelle Zammit 1. Ms Michelle Zammit is married to Mr Cameron Zammit. She was not required for cross-examination. 2. Ms Zammit currently works full-time as a Service Coordinator. Until recently, Ms Zammit was allowed to commence work at 9 am so as to allow her to drop off her primary aged children at school, rather than her normal commencement time of 8 am. More recently, Ms Zammit had varied her work hours to 8.30 am to 4.30 pm as her children are now old enough to be dropped off at the school gate at or around 8.10 am. 3. Ms Zammit considered it was "disgraceful" that the Respondent had sought to change her husband's flexible hours of work. She had previously worked in various administrative roles for the Respondent where she had observed a number of women were afforded worked flexible hours to accommodate family responsibilities. 4. In support of the proposition her husband's flexible working hours arrangement afforded should continue, Ms Zammit deposed: Cameron and I have a mortgage on our house, and we make fortnightly repayments towards this. We also upkeep two cars, which we need in order to get to work. We pay school fees, and for private health insurance. We also have the usual household expenses such as utility bills. We are making additional contributions into our superannuation funds. We have additional expenses for the children, including swimming lessons and sports fees. Our family budget is tight. If we had to pay for childcare in addition to our current expenses, we would need to miss out on something else such as swimming lessons. Cameron and I have recently enquired into the availability of out-of-school hours childcare. The children's school finishes at 3:05pm. There is a bus which collects children from schools including Mary Immaculate Primary School. Mary Immaculate Primary School is the second last school on the bus pick-up route, and children at Mary Immaculate Primary School are picked up at approximately 3:20 pm and arrive at the childcare centre at approximately 3:50 pm. If Cameron finished work at 3:30 pm, it would take him approximately 20 minutes to drive to the childcare centre at Edensor Park. When the children arrived at the childcare centre, he would be waiting for them. Instead of childcare, we would be paying for an exorbitant bus trip. I have spoken to my children and asked how they would feel about going to childcare. They have told me that they don't want to go. I think it would be too long a day for them, given that I drop them off at 8:10 am, which is when the school gates open. Belinda Zammit 1. Ms Belinda Zammit is married to Mr Craig Zammit. She was not required for cross-examination. 2. Ms Zammit works for a pharmaceutical products company in a customer service role. Her normal hours of work are 8 am to 5 pm. However, to enable her to drop off her children when their school opens at 8.20 am, her employer has agreed that she can commence work at 9 am. 3. The current flexible work arrangement afforded to her husband Craig, "has been working well" and it enables Craig and herself "to share the care of our children". 4. In support of the proposition that the flexible working hours arrangement should continue, Ms Zammit deposed: I do not understand why the Hospital would have a problem with it. Craig and I do not have any family who could assist with picking up our children from school and caring for them in the afternoon. We pay for Catholic school education for our children which is already expensive, and our family budget is tight. If we had to pay for childcare in addition to school fees this might push us over the edge financially. Also, I think that the children spend enough time at school and that they shouldn't have to go to after school care. The current arrangement whereby I look after the children before school and Craig looks after the children after school is in place for the sake of the children. It doesn't create any hardship for our employers. I think it should be able to continue. Paul Connell 1. Mr Connell has been employed as a State Organiser with the Union since November 2013. 2. On 13 December 2013, Mr Connell met with the Zammits who at that time were concerned that their applications for the continuation of their flexible working hours arrangement "might be knocked back". In or around early April 2014, the Zammits advised him that their applications had been rejected in correspondence dated 4 April 2014 from Mr Feeney. On or about 11 April 2014, Mr Connell was told Mr Loy had made the decision on the grounds that: 1. other staff had been denied flexible hours and it would be unfair to approve the Zammits' application; and 2. there was a lack of supervision and in that particular regard, the Zammits had been seen leaving work early. 1. Subsequent meetings between Mr Connell and the Respondent's management in May 2014 failed to change the Respondent's position. Mr Connell confirmed the Zammits had received correspondence (referred to above) from Ms Arnold dated 20 May 2014, advising that a 12 month extension had been approved until 31 May 2015 and Mr Loy, dated 4 July 2014, which withdrew the statement that any extension beyond 31 May 2015 would not be approved. 2. Mr Connell referred to subsequent email and telephone representations made to the Respondent on behalf of the Zammits. He also referred to allegations of bullying and harassment (subject to separate proceedings before Tabbaa C). 3. Mr Connell noted the Policy Directive provides for flexible working hours in terms of "changing finishing and starting times to satisfy both employer and employee needs". Mr Connell referred to the Information Sheet which stated requests should not be unreasonably denied. 4. Mr Connell noted that in conversations with the Zammits, they had stressed the importance of being able to pick their children up from school and looking after them during the afternoon. 5. In a second statement filed on 6 November 2015, Mr Connell confirmed he had been told that Mr Robert Nelson, a carpenter, that he had only been required to meet with Mr Stephen Sherer, Acting Building Engineer, for the past three weeks. In addition, he contended the following in relation to Mr Sherer's statement: * he had no difficulty contacting Mr Craig Zammit on his mobile telephone within the Hospital; * it was the practice of the After-Hours Engineer to contact Mr Craig Zammit if any particular work issue arose between 2.15 pm and 6am the next day. 1. In relation to Mr Wenden's statement, Mr Connell restated his contention that Mr Wenden had raised with him a concern that the Zammits had been seen leaving work early. 2. In relation to the statement of Mr Peter Cook, Mr Connell considered that if a wall was damaged early in the afternoon, it was unlikely that it could be repaired and painted prior to 3.30 pm. In such cases, it was open for the After-Hours Engineer to contact Mr Craig Zammit after hours and request him to prioritise an urgent repair job. 3. In relation to meetings, Mr Connell suggested that if meetings with leading hands were absolutely necessary, they could be conducted shortly after lunch. 4. Mr Connell also considered the Respondent had failed to give reasons for the changes sought. 5. In cross-examination, Mr Connell stated the Union was seeking a continuation of the Zammits' flexible working hours arrangement until at least the end of 2019. He disputed the Respondent's contention that it had made its position concerning the continuation of flexible working hours very clear to both the Union and the Zammits. He further agreed with the proposition that the position advanced by the Union in this matter of behalf of the Zammits was "all or nothing" and that intractable position had made this particular dispute difficult to resolve. 6. It was Mr Connell's evidence that an employer has the right under the Award to determine when hours of work will be performed and determine the relevant rosters. He further agreed that from April 2014, the Zammits were on notice that their flexible working hours arrangement would cease. Mr Connell also agreed that following the Union's intervention, both the Zammits and the Union were on notice as at 16 May 2014 that the LHD did not wish to extend the working arrangements beyond May 2015. 7. Mr Connell confirmed his view that a realignment of the Zammit's working hours to a 3.30 pm finish would make little difference to operational efficiency was merely an opinion. He also confirmed he was unaware that it was not part of the After-Hours Engineer's role to contact Mr Craig Zammit and advise him of a priority job arising between 2.15 pm and 6 am the following day. 8. Mr Connell acknowledged the Policy Directive provided "approval can only be granted for a maximum of 12 months". 9. Mr Connell conceded that if the painting staff worked until 3.30 pm, it would be possible to inspect a job that might arise after 2.30 pm. 10. Mr Connell disagreed with the proposition that management considered the most appropriate time to meet with leading hands and supervisors was towards the end of their shift each afternoon. 11. In re-examination, Mr Connell stated that during the ordinary course of their work, the Zammits received texts, phone calls and emails and he considered this communication could continue after 2.30 pm when they had ceased work. 12. It was Mr Connell's understanding that the duration of Mr Sherer's meetings with leading hands each afternoon was approximately 10 to 15 minutes. He understood the purpose of those meetings. However, he speculated that the Zammits and Mr Sherer had agreed that on some occasions "the meetings are a bit of a waste of time". Craig Zammit 1. Mr Craig Zammit is a leading hand painter and has worked with his brother Cameron at Liverpool Hospital since approximately 2000. 2. The majority of Mr Zammit's work at the Hospital involves preparation and painting of walls, ceilings, doors of various public areas and, wards and offices. Some exterior painting is also undertaken. Mr Zammit stated the work he and his brother perform "is not emergency response work" such as that undertaken by the Hospital carpenter. 3. Mr Zammit is responsible for ordering materials and prioritising painting work. The Respondent operates a maintenance software program known as BEIMS. Work requisitions are entered into BEIMS and a work allocation order is subsequently generated and "put in the pigeonholes of the appropriate tradesperson". Upon receiving a BEIMS work order, Mr Zammit proceeds to prioritise that work. 4. Mr Zammit's immediate supervisor is Mr Sherer. On occasions, he received work orders directly from Mr Sherer. He carries a hospital provided mobile phone when at work so that he can maintain communications with his supervisor and other members of the engineering department as necessary. 5. Mr Zammit confirmed details of his wife Belinda's employment circumstances and the fact that she worked flexible hours to enable her to drop their children off at school. Various correspondence confirming school start and finish times together with the fact that Mr Zammit picks his children up from school each afternoon were attached to his statement. 6. In support of the proposition that the current flexible work arrangements should continue, Mr Zammit stated: Our family budget is…very tight. Any additional costs, such as paid child care, would impose a very heavy burden on our family. 1. Mr Zammit deposed he earned approximately $51,000 per annum. Part of his income was salary packaged in accordance with public health sector Fringe Benefits Tax arrangements. His wife earned $62,000. He subsequently set out the following expenses: * Catholic primary school fees - $1,000 for one child; * Catholic high school fees - $6,000 for two children; * private health insurance - $200 per month; * mortgage repayments - $1,800 per month; * home insurance - $110 per month; and * car insurance (2 vehicles) - $130 per week. 1. It was Mr Zammit's evidence that he could not afford after school care. 2. Mr Zammit referred to the Respondent website, which stated in part: The Hospital does its best to provide a work/life balance through flexibility. This may be through part-time work, flexible working hours, job sharing and the various leave available. 1. The balance of Mr Zammit's evidence concerned references to the correspondence raised above concerning the Respondent's decisions and the various representations made on behalf of the Zammits by the Union. 2. In a second statement filed on 6 November 2015, Mr Zammit refuted the evidence of Mr Wenden as follows: * he had never heard of, nor had he been trained in relation to disaster "Code Yellow" procedures; * out of hours emergencies do not require painters; * he should be readily contactable within the Hospital as his work provided a Telstra mobile telephone "has reception in almost all areas of the Hospital including the Engineering offices and workshops". 1. In relation to the statement filed by Mr Sherer, Mr Zammit made the following observations: * he normally picks up the BEIMS work order from the tray. He, rather than Mr Sherer, generally prioritises requests for painting work; * in relation to Mr Sherer's request that he meet with him each afternoon, Mr Zammit contended Mr Sherer was frequently out of his office at such times and they communicate by telephone. It is normally a brief chat; * the carpenter, Mr Nelson has only been required to report to Mr Sherer each afternoon for the past three weeks; * it was possible for Mr Sherer to communicate with him by phone, email or by placing a note in his tray. The On-call Engineer was also able to contact him by telephone after his 2.30 pm finishing time. 1. In relation to the statement filed by Mr Cook, Mr Zammit stated he and his brother Cameron Zammit do not get involved in work other than painting and their work generally "dovetails with the carpenter to ensure that work is completed as efficiently as possible". They do not undertake "on-call" work to deal with emergencies such as burst sewer pipes. 2. In cross-examination, Mr Zammit disagreed with the proposition that benefits in terms of greater efficiency and improved coordination of work would accrue to the Hospital if painting staff commenced at 7 am, rather than the current practice of 6 am. The following exchange ensued: Q. I'll ask a third time Mr Zammit. You've identified in your statement that you do not believe that your working hours cause any difficulties in relation to the performance of your work duties. A. No. Q. You've also had a chance to read the statements that have been filed by management yes. A. Yes Q. And is it fair to say is it not that having read those statements from management that the position advanced by management is that the non-alignment of the working hours is causing them difficulties and they are seeking to address those difficulties and what they see as inefficiencies by realigning your working hours. A. No. Q. I know you might not agree – A. I don't really, no. 1. Mr Zammit agreed that in relation to work allocation, he was given a week or two of notice concerning planned tasks. However, he agreed there would be other instances where an area needs to be painted quickly. In such circumstances there may be some or no notice at all. 2. Mr Zammit agreed with the proposition that if a job came along after 2.30 pm, under the new arrangement sought by the Respondent, he would be able to determine how much paint and equipment was required and load the painting trolley that afternoon rather than attending to those tasks the following morning as is currently the case. However, Mr Zammit suggested this would be a rare occurrence. 3. Mr Zammit confirmed that the current practice of allocating work was through the BEIMS system and not email. He accepted the proposition that while he had responsibility for prioritising work, that work priority was also subject to directions or requests made by Mr Sherer. 4. Mr Zammit disagreed with the proposition that if all trade staff were to work the same hours it would be easier for management to both supervise and coordinate work. He contended that painting work was generally pre-planned and there was never really any emergency work for painting staff. 5. Mr Zammit contended that in the event work priorities changed after he left at 2.30 pm, he could be contacted by mobile phone or if necessary, he could leave his job the next morning and meet with Mr Sherer and other trades staff at 7 am. 6. Mr Zammit reluctantly agreed that it was a decision for Hospital management to determine how best to allocate work and align working hours to meet those requirements in an efficient manner. 7. Mr Zammit stated that he was seeking the Commission's intervention until his younger son completed primary school in 2019. Mr Zammit also explained that he currently takes a week of leave comprising annual leave and accrued rostered days during the school holidays to look after his children. His mother-in-law would normally look after the children during the second week. 8. Mr Zammit agreed that the initial applications for flexible working hours were approved on the basis of a three or six-month trial and later, were extended to be "an annual type of application". The following exchange ensued: Q. You were aware then that there was never anything set in stone in terms of you being able to work those flexible hours? A. Of course yes. Q. It was always a matter of you needing to make an application? A. We knew that yep. 1. Mr Zammit agreed that he had been on notice since at least 2014 that the Respondent wished to realign his working hours. 2. In re-examination, Mr Zammit could only recall one job in the Emergency Department that was required to be completed urgently. He could not recall a time when someone had expressed frustration or difficulty because he finished work at 2.30 pm. Wayne Rawson 1. Mr Wayne Rawson was the Building Engineer for the Respondent until his retirement in December 2013. 2. Mr Rawson stated he had never heard any complaints concerning the Zammits' work. He had commenced work at 6 am himself and considered the flexible work arrangement benefitted the Respondent: …it allowed tradespeople to access areas to effect repairs prior to patients and visitors being admitted to those areas. Some areas of the Hospital did not open until 7.30 or 8 am and tradesmen who started work at 6 am could affect those repairs. 1. Mr Rawson observed that at the time of his retirement in December 2013, the only staff working from 6 am to 2.30 pm were the Zammits and the head gardener, as "the others had all left or retired". 2. Mr Rawson considered poor telephone reception within the Respondent was confined to nuclear medicine and radiology, areas which contain lead lined walls. He never had any problems contacting Mr Craig Zammit or other leading hands. In any event, messages could be left on voicemail if necessary. Mr Rawson did not consider the Zammits' current working hours disadvantaged the Respondent. Rather, it is advantageous as it allowed painting work to be undertaken prior to normal daily occupation by staff and patients. 3. In a second statement filed on 6 November 2015, Mr Rawson stated permission had been granted some time ago for Mr Rudolfo Galaroza, a handyman, to work from 6 am to 2.30 am. 4. In cross-examination, Mr Rawson confirmed that he retired from the position of Building Engineer in December 2013 and had not had any involvement in the operations of the Hospital since that date. 5. Mr Rawson also confirmed that he had no knowledge or understanding concerning the way management now wished to operate the Hospital. In that regard, he stated his reference in his first statement that the current working hours arrangements of the Zammits did not cause any disadvantage to the employer should be read in the context of the period he worked at the Hospital up until December 2013. 6. Mr Rawson was unaware whether there was an increased focus by the current management to improve supervision of trade staff and the coordination of their work activities. Robert Nelson 1. Mr Robert Nelson is a leading hand carpenter. He, together with other engineering services staff currently work from 7 am to 3.30 pm. 2. It was Mr Nelson's evidence that in his opinion, the hours worked by the Zammits "do not create any problems in relation to the performance of their work as part of the engineering services team". Mr Nelson considered the arrangement was beneficial to the Respondent as their earlier start enabled the Zammits to work in areas prior to staff commencing work. Moreover, the Respondent's waiting areas and other public areas were "generally fairly empty at 6 am". He further contended "a lot of nurses in the Hospital start work at 7 am or later". Theatres could be painted more efficiently on the current work hours as operations did not generally commence until 8.30 am. 3. Mr Nelson stated that given the Zammits did not perform "on-call' emergency work and painting work was normally pre-planned, their current work arrangements was no impediment to their work output. 4. It was Mr Nelson's evidence that leading hands generally supervised their own work with limited contact with Mr Sherer. He has never met regularly with Mr Sherer to discuss work performed or work required to be performed. If there was an urgent job, Mr Sherer would visit the workshop or make contact by telephone. 5. In a second statement filed on 6 November 2015, Mr Nelson referred to the statement of Mr Fenech and noted it was his recollection Messrs Galaroza, Follers and Potter had previously started and finished work earlier than other employees but could not recall the precise hours they had worked. 6. In relation to Mr Sherer's statement, Mr Nelson contended there was "extremely minimal additional supervision of our work by Stephen Sherer" as leading hands supervise their own work and the work of others. He further contended Mr Feeney had asked Mr Sherer to "meet the boys" each day. Mr Nelson also explained the processes involved in repairing gyprock and subsequent painting. 7. In relation to the statement of Mr Wenden, Mr Nelson stated he too was unaware of a "Yellow Code" disaster response. He also considered that he both prioritised and organised "my own work". 8. In relation to the statement of Mr Cook, Mr Nelson stated that on occasions, it was not possible to schedule work at times that would not inconvenience patients and others. 9. In cross-examination, Mr Nelson stated he was not aware of any proposals such as the "Whole of Hospital" approach that management may wish to adopt to improve the efficiency and effectiveness of the Engineering Department. He was, however, aware that the Hospital operates within an environment of "very strict budgetary accountability". 10. He also confirmed his contention that the hours worked by the Zammits did not creating any problems was simply based on his "understanding of the position". 11. Mr Nelson agreed that the role of management was to ensure that the work of engineering trades staff was coordinated and performed in an efficient and effective way. Whilst he disagreed with the proposition that the alignment of working hours would assist in the efficient and effective performance of work within the Engineering Department, Mr Nelson ultimately accepted that it was management's role to determine how best it wished to organise work. 12. Mr Nelson agreed that if Mr Sherer was required to talk to the painters about a particular work situation, the earliest he could do that would be at the commencement of shift at 7 am when presumably the Zammits had already been working for an hour given their 6 am start. Cameron Zammit 1. Mr Cameron Zammit is a painter and has worked with the Respondent since 2000. Much of Mr Zammit's evidence substantially mirrors that of his wife, Ms Michelle Zammit and his brother, Mr Craig Zammit. Their children attend Catholic primary schools. 2. Mr Zammit earns approximately $40,000 per annum plus reportable fringe benefits of almost $17,000. His wife Michelle earns approximately $66,000 per annum. 3. Mr Zammit deposed, "Our family budget is tight, and it would be very difficult for Michelle and me to pay for child care fees in addition to school fees and other expenses, in addition to the following expenses: * private health insurance - $220 per month; * school fees for two children - $3,132 per year and paid weekly; * additional superannuation payments - $30 per week; * car insurance for two cars, mortgage payments and groceries. 1. In the event that he was required to work until 3.30 pm, it was Mr Zammit's evidence that he would be able to pick his children up from the child care centre at 3.45 pm when, "the children would likely only just gotten off the bus and arrived at the childcare centre'. 2. Mr Zammit did not consider his flexible working hours arrangement posed any difficulty in relation to the performance of his work. He also referred to a statement by Mr Jon Gowdy, the Respondent's Engineering Manager from approximately 2011 to 2013, to the effect that in his opinion, the Zammits' working hours had no impact on productivity or safety and he saw no reason to alter that arrangement. 3. The balance of Mr Zammit's statement referred to the history related to the application by he and his brother for the flexible working hours arrangement to continue. 4. Mr Zammit also filed a second statement on 6 November 2015 in response to the statement of Mr Sherer, Ms Arnold, Mr Wenden and Mr Fenech. The matters raised in that statement is similar to other evidence relied upon by the Union in support of the Zammits' case. 5. In cross-examination, Mr Zammit confirmed that since at least 2013, he had been aware of the Hospital's desire to realign his working hours to those of other engineering trade staff. He also confirmed that in May 2014, he became aware that the Hospital's position at that time concerning his flexible working hours arrangement was it would only continue for a further 12 months. Mr Zammit agreed that following representations made by the Union, a new application was to be made in May 2015 for a continuation of the arrangement. 6. Mr Zammit agreed that the Hospital was operating within an environment of increased financial accountability and responsibility. 7. Mr Zammit understood the Engineering Department had sought to implement initiatives to improve the efficiency and effectiveness of all trade staff. In that regard, he understood the Department was seeking greater coordination between the work of trade staff. 8. Mr Zammit was personally unaware of the precise nature of the improvements sought by Hospital management. However, he agreed that the Hospital was seeking a greater level of input from supervisors such as Mr Sherer and other managers concerning the allocation and coordination of work. Meetings between Mr Sherer and leading hands and supervisors to discuss work priorities and allocation were indicative of the improvements sought. 9. Mr Zammit could not recall a particular job requirement on 25 November 2015 where following serious water damage, the affected area was ready for painting at 1.30 pm, but because he and his brother were leaving at 2.30 pm that day, Mr Craig Zammit had said the job couldn't be completed until the next day. 10. Mr Zammit confirmed that he and his wife make a $30 additional superannuation payment per fortnight. 11. In re-examination, Mr Zammit suggested painting staff normally coordinate their work with the carpenter. It was his understanding that on 25 November 2015, Mr Sherer simply told his brother the painting job could be done the next day. Respondent Jennifer Arnold 1. At the time of deposing her statement, Ms Arnold was the Deputy Director Human Resources. Ms Arnold's evidence was that she first met with the Zammits on 20 May 2015. 2. Ms Arnold recalled that during the course of 2014, she attended a short meeting with the Zammits, Mr Connell and Mr Peter Cook. She denied stating the words, "Your children are still very small. I think that your current arrangement might stop when they are in high school" as alleged by Mr Cameron Zammit in his statement. 3. It was Ms Arnold's evidence that she did not know the ages of the Zammit children and could not recall whether their age had been mentioned during the course of any conversation with her. It was her recollection that she informed the Zammits that they were required to submit an application for flexible hours to be determined by the Chief Executive or her delegate. 4. In cross-examination, Ms Arnold confirmed she was aware of the Zammits' current flexible working hours and was also aware they had been required to reapply for a continuation of those arrangements on a number of occasions. She was unaware of the circumstances that may have existed prior to 2014. 5. Ms Arnold stated that in or around May 2014, she suggested to the Zammits that they reapply for a continuation of their flexible working hours arrangements. She also confirmed that in communicating her response to the Zammits she had considered relevant Hospital policies. Ms Arnold was unaware of any written representations the Union had made during May 2014 on behalf of the Zammits. 6. It was Ms Arnold's evidence that the normal practice of the Respondent was not to provide reasons with respect to applications seeking consideration of a flexible working arrangement and the like. She was unaware whether that arrangement had imposed any hardship on the various applicants. 7. Ms Arnold was aware that the Hospital's website contained a statement to the effect that it does its best to provide a work/life balance to employees through flexibility, but was unaware that the website suggested that flexibility may be achieved through job sharing, part-time work or flexible hours. 8. Ms Arnold stated she was aware of the Premier's Department and Health Department Policy statements concerning flexible working arrangements. Peter Cook 1. Mr Cook is the Respondent's Manager, Shared and Corporate Services. He is responsible for a broad range of Hospital functions including engineering services. 2. Mr Cook stated the Hospital was experiencing performance issues and was required to manage resources as efficiently, effectively and responsibly as possible in order to improve patient flow and access to care for those who required it. In the 2014/15 financial year the Hospital sustained a financial deficit of $8.2 million. The Hospital is required to operate within its budget and accordingly, much attention was now directed towards improving performance across the entire facility, including engineering services. The Hospital had sought to make such efficiencies and improvements without impeding patient access. 3. Shortly stated, the Hospital seeks to ensure that it operates at all times in an efficient and coordinated manner. To meet such objectives, a "Whole of Hospital" approach to improving performance has been implemented across clinical and support services. 4. It was Mr Cook's evidence that the Engineering Services Department was required to be responsive to the Hospital's day-to-day needs. Mr Cook explained that engineering trade staff were responsible for the maintenance of critical plant and various wards, clinics and emergency departments that accept and treat patients. 5. Insofar as the Engineering Services Department was concerned, the "Whole of Hospital" approach required engineering services staff to perform their duties in a timely and efficient manner. Mr Cook contended this change required greater coordination of trades work. 6. Mr Cook stated that it was important, for example, that painting staff were on hand to dovetail their work and commence painting repairs once carpenters and handymen had completed their work. To achieve this objective and improve operational efficiency, Mr Cook contended that having all engineering staff work the same hours was required. 7. The majority of engineering staff commence work at 7 am and finish at 3.30 pm, with the exception of two staff who operate the Central Energy Station and the Zammits. 8. Mr Cook contended that difficulties and inefficiencies can arise when the Hospital's painters commence work at 6 am and an issue requiring their early attention was reported to the engineering department at or after 7 am. For example, in such circumstances, the painters would be required to pack up from the location where they were working and move to the new work location. This practice would result in a loss of time and effort. 9. Mr Cook stated there may also be a further loss of work time if the Zammits were required to return to the Engineering Services Department to receive new instructions prior to moving to the newly prioritised place of work. 10. Mr Cook considered that the lost time incurred as a result of the Hospital's painters having to redirect their work to a more urgent task brought to the attention of their supervisor at 7 am or, as a result of an incident that occurred after 2.30 pm the previous day, negatively impacted on the Hospital's operations. 11. Mr Cook stated the Hospital could not afford to lose a patient room for any extended period of time and particularly within the Mental Health area. 12. Mr Cook stated that it was important that engineering staff were able to redirect resources to an emergency maintenance issue so that the various trades could promptly undertake the necessary repairs, including carpentry and painting. Standardised hours of work within the engineering department would, in his view, enable the Hospital to maximise the resources available to deal with emergency maintenance issues. 13. Mr Cook explained that it was now common practice for Hospital supervisors and trade staff to meet prior to the end of their shift, typically during the last 30 minutes of the shift so as to enable staff to report on the progress of the various tasks, update those tasks in the BEIMS system and receive instructions from the supervisors for the following day's work. To accommodate the Zammits' 2.30 pm finish time, the Building Engineer was required to return to the engineering office and meet with the leading hand painter, Mr Craig Zammit at around 2.15 pm. 14. Mr Cook stated he was also aware that the Building Engineer was sometimes required to have meetings with trades staff at both 2.15 pm and 3.15 pm. Between those meetings and the commencement of work the following day, incidents can occur, for example damage to Hospital walls by patients, that require urgent patching and painting. 15. The allocation and prioritisation of work is undertaken by the supervisor at 7 am each day and in circumstances where painters commence work at 6 am, that task becomes more difficult, resulting in lost productivity or, in the alternative, a decision by the Hospital to engage contractors at a higher cost. It was Mr Cook's evidence that it was less likely that these difficulties would occur if the Hospital's painters worked from 7 am to 3.30 pm each day. Moreover, the Building Engineer would only be required to convene a single meeting involving all relevant trade supervisors each afternoon. 16. It was Mr Cook's evidence that greater efficiencies and an opportunity to better coordinate work could be achieved if the Zammits worked from 7 am to 3.30 pm. 17. Mr Cook stated that maintenance work, including painting, was scheduled to minimise disruption to staff and patient needs and the requirement to deliver adequate services. In that regard, he contended that any perceived benefits in terms of avoiding disruption to Hospital services that may arise from the painters' 6 am start do not outweigh the disadvantages associated with them working different hours to other trade staff. He further contended that a 6 am start had the potential to disturb patients that should otherwise be resting. 18. In relation to the various statements filed by Messrs Connell, Nelson, Rawson, Cameron Zammit and Craig Zammit, Mr Cook stated that a theme of their evidence was the assertion that no problem arose for the Respondent by permitting the Zammits to work flexible hours. It was Mr Cook's opinion that the current flexible work arrangements had caused the Hospital difficulty and those difficulties were becoming more acute, against a backdrop of cost constraint, increased demand for clinical care and the objective to deliver patient care in a timely and efficient manner. 19. In relation to Mr Connell's statement, Mr Cook said that he met with Mr Connell and others on 9 May 2014 to clarify the circumstances of the Zammits' applications for flexible hours because they had provided little information. He denied that he was "negative towards Craig and Cameron". 20. In relation to Mr Nelson's statement, Mr Cook stated that he was incorrect to infer that painters do not have a role in emergency work or work requiring prompt attention. Moreover, urgent work for engineering department staff, including painters, arises from both on-call job requests and the need to re-prioritise tasks during the day. 21. In relation to Mr Rawson's statement, Mr Cook considered the "Whole of Hospital" approach, which seeks to manage scarce resources efficiently and effectively, required: …supervisors and trade staff to plan and carry out repairs and maintenance in a coordinated fashion so as to ensure all work is completed expeditiously at minimum cost. 1. In relation to Mr Cameron Zammit's statement, Mr Cook contended that comments by a former Hospital manager were irrelevant and the "Whole of Hospital" approach was now driving the execution of maintenance work within the Hospital through increased teamwork, better work organisation and a cooperative workforce. 2. Mr Cook acknowledged that any change in the Zammits' hours of work would have an impact on them and it was against that backdrop that the Hospital had decided to consider a phasing out period. 3. In a second statement filed on 20 November 2015, Mr Cook maintained his view that a 3.30 pm finish for all employees, including the Zammits, would be more efficient. For example, if a job repair request was made at 2.30 pm and the carpenter and painters agreed that there was insufficient time for the carpenter to make the necessary repairs prior to painting, the painters could assess the job and possibly set up the equipment so as to ensure the job proceeded "immediately" the following morning. 4. Mr Cook maintained that the "Whole of Hospital" approach required the Hospital to examine ways in which productivity could be improved. That imperative required the effective and efficient use of existing resources including staff. Inevitably, that imperative has also resulted in increased emphasis being placed on rapid deployment of employees, coordinated by their supervisors. 5. In cross examination, Mr Cook stated that in his view, the operational requirements of the Hospital could be better coordinated and be more efficient if all staff worked the same hours. 6. Mr Cook agreed that Mr Craig Zammit prioritised painting work subject to any higher priority requests made by Mr Sherer. He further considered that there was a role for supervisors to triage those tasks that need to be fast tracked when prioritising work to be undertaken across the Engineering Department. 7. Mr Cook was unaware whether it was true or not true that initially, Mr Craig Zammit was the only leading hand required to meet with Mr Sherer and further, whether Mr Craig Zammit or Mr Sherer had considered those meetings a waste of time. In any event, Mr Cook considered a face to face meeting was more effective than a telephone call. 8. In relation to the BEIMS system, Mr Cook stated it was his understanding that whilst requisitions were placed in the appropriate trades leading hand or supervisor "pigeonhole", he considered there was a role for the supervisor in prioritising such work. Mr Cook was unaware of the precise details or the degree to which supervisors were currently engaged in the prioritisation of BEIMS generated work requests. 9. Mr Cook confirmed that most painting jobs in the Hospital were non-urgent. He described an urgent job as one which may be required to return a room back into service following some damage. That work might follow repairs undertaken to a wall by the carpenter. He conceded that in such cases the work might be coordinated between the carpenter and the painters themselves. 10. Mr Cook agreed that if a priority painting job arose after 2.30 pm, Mr Sherer could send an email to Mr Craig Zammit to attend to the job first thing the following day or place the relevant BEIMS request in his in tray, subject to the work not being required to be completed prior to 3.30 pm. 11. Mr Cook agreed that on occasions Mr Sherer may not be in his office when the leading hands, including Mr Craig Zammit, come to see him in the afternoon, due to other requirements that call upon his time as part of his responsibilities at the Liverpool Hospital and other Local Health District Hospital facilities. 12. Mr Cook stated that he was unaware of the statement set out on the Liverpool Hospital website concerning work life balance through flexibility. He later conceded that he had never viewed that particular statement. 13. Mr Cook was aware from the evidence filed in these proceedings that some past managers of the Engineering Department had not objected to the Zammits' flexible working hours arrangements. However, he considered the "Whole of Hospital" approach to improving performance and effectiveness would be enhanced by standardised hours. In that regard, he stated that patients generally rise at 7 am and have breakfast between 7 am and 8 am. In such circumstances, it would be very difficult to commence painting work in a patient's room at 6 am. 14. Mr Cook stated he had limited involvement in the preparation of correspondence sent to the Zammits concerning their flexible working hours applications. 15. Mr Cook disagreed with the proposition that the current working arrangements enjoyed by the Zammits had not caused the Respondent difficulties in the past. He later identified supervision and communication between the hours of 6 am and 7 am was an issue in contention. 16. Mr Cook stated that the normal procedure for painting work was to "cordon off the area…put barriers in place… (and) schedule the work". The painting tradesmen prioritise the order of tasks to be undertaken and the role of the supervisor was to prioritise the order of jobs. 17. In re-examination, Mr Cook stated applications for flexible working hours were determined on their merits consistent with the prevailing policy guidelines. 18. Mr Cook understood the flexible working hours policy implied a "temporary arrangement" because successful applications were granted for a period of 12 months. Approval was also subject to benefits accruing to the employer. 19. Mr Cook stated the "Whole of Hospital" approach was concerned with improving efficiencies within both clinical and non-clinical areas of Hospital. 20. In terms of emergency or disaster management, Mr Cook contended the most effective response would involve all members of the Emergency Department between the hours of 7 am and 3.30 pm. He acknowledged that should an event occur between 6 am and 7 am, the Zammits may be in a position to respond. Ross Wenden 1. Mr Wenden was appointed the Group Engineering Manager for the Respondent on 5 November 2012. He reports to Mr Feeney, the District Engineer. Various engineers, including the Acting Group Building Engineer, who supervisors the painting and carpentry tradespersons, report to him. 2. Mr Wenden is responsible for the maintenance and repairs to three Hospitals within the Local Health District. He has 37 years' experience in engineering within the New South Wales Public Health System and has worked at nine different Hospitals in a range of positions including Maintenance, Project Management and Engineering Management. 3. The Respondent has recently experienced rapid patient growth. Accordingly, the work undertaken by the Engineering Department has a direct effect on delivery of patient care services. In that regard, Mr Wenden stated proper management of maintenance and repair work helped to minimise Hospital block, a situation where beds become unavailable. 4. Mr Wenden stated that a key goal of the Respondent was to deliver an effective and efficient service by maximising the various resources available to it. He contended the Respondent was required to provide a rapid response team of skilled trades persons to meet the operational demands of the Hospital so as to ensure continuity of patient services. 5. Mr Wenden stated that he and Mr Feeney had implemented a number of work practice changes since 2013. Broadly stated, these changes included the requirement for engineering staff to complete their work requisitions in a timely fashion and provide a record of the tasks carried out. Other changes introduced included improved supervision, greater attention to the coordination of trades and maintenance services, prioritisation of work and improved communication between Hospital executives and Engineering Department management with the objective of reducing costs. 6. More recently, the General Manager of the Hospital had directed the Engineering Department to minimise the use of contractors for trades work and utilise in-house staff. 7. Mr Wenden stated that since the end of 2012, there had been a reallocation of positions so that there were now more trades and handymen available to work between the hours of 7 am and 3.30 pm. Engineering staff had also been given specific roles in certain emergency procedures, such as code yellow emergencies which may involve a chemical spill, persons being trapped, flooding, power failure, storm damage and the like. 8. In relation to work organisation, Mr Wenden stated the BEIMS system operated 24/7 and all after-hours urgent or emergency work requests were referred to the after-hours Hospital Manager who subsequently referred those matters to the after-hours Engineer who was available on call from 3.30 pm to 7 am, Monday to Friday, with 24 hour coverage maintained during weekends and public holidays. 9. It was Mr Wenden's evidence that in 2012, he and Mr Feeney introduced the practice of informal meetings at the commencement of each working day for group engineers. The purpose of those meetings was to provide an opportunity for a "quick catch up about the progress of work in the Hospital and any reallocation of priorities required". The duration of those meetings was typically about 15 minutes. 10. In early 2015, Mr Wenden directed the various group engineers to meet informally with trade staff and leading hands immediately before the end of each shift. The duration of such meetings was typically 30 minutes and during that time, supervisors were updated on work completed and plans for pending work. Moreover, during these meetings work priorities could be assessed and where necessary, varied. 11. In relation to the evidence of Mr Connell, Mr Wenden stated he did not recall a telephone conversation with him on 11 April 2014 or the following day. However, it was his recollection that at the time he was informed that the Zammits had been seen leaving work early. 12. In relation to Mr Nelson's statement, it was Mr Wenden's evidence that the flexible hours arrangement worked by the Zammits had not been beneficial to the Hospital and had created difficulties in managing workflow. In his view, common start and finishing times would help foster an integrated, flexible, responsive trades workforce and culture. He considered that Mr Nelson lacked an understanding of the ever-changing demands and priorities of the Hospital. He also had no management responsibility or experience concerning the maintenance requirements of the Hospital. 13. In relation to the statement of Mr Rawson, Mr Wenden stated there were sound operational reasons for requiring a common start time. He recalled that he spoke Mr Rawson in early 2013 to ascertain the location of the painters. He contended Mr Rawson responded, "F---ed if I know", a response that Mr Wenden considered unacceptable. 14. Mr Wenden contended that mobile telephone reception was poor across a number of areas of the Hospital, including the engineering office and workshops which are located in the basement of the "new" building. 15. In relation to the statement of Mr Cameron Zammit, Mr Wenden contended that Mr Zammit confused the nature of "on-call work" with emergency and urgent work. Mr Wenden conceded that while painters were not required to be on call, there was nothing to stop the Hospital calling them in should the need arise. 16. In relation to the statement of Mr Craig Zammit, Mr Wenden disagreed with Mr Zammit's contention that the early start benefits the Hospital. Moreover, in response to certain statements made by various managers during 2007 and 2008 concerning alleged benefits arising from the early start, Mr Wenden said he was required to manage the limited resources of the Engineering Department as effectively and efficiently as possible in the current environment of financial restraint. 17. In a second statement filed on 20 November 2015, Mr Wenden confirmed that he had told the group engineers to meet with their staff each afternoon. In that regard, he understood that Mr Sherer had recommenced his afternoon meetings with Mr Craig Zammit and the carpenter, Mr Nelson. 18. Mr Wenden contended that all engineering workshops and offices contained an emergency procedures flipchart which set out the various procedures relevant to emergencies such as a flood, rescue or fire. In that regard, all engineering department staff had received training on Disaster Management and Response during November 2015. Contrary to the opinion of Mr Craig Zammit, Mr Wenden stated that all trade staff, including painters, may be involved in emergencies. 19. In response to Mr Craig Zammit's statement that he prioritised painting work, Mr Wenden stated that the work tasks of all trade staff and the order in which they were to be performed needed to be consistent with the Hospital's requirements as determined by the relevant group engineer. 20. Mr Wenden considered the suggestion of Mr Craig Zammit that he could check his emails for information about job requests during the day may potentially lead to an increase in lost time as he would be required to attend the workshop to access his computer. Moreover, job requests were not distributed by email. 21. In cross examination, it was Mr Wenden's evidence that group engineers met regularly with leading hands to discuss work performed, progress of work and priorities for the next day. 22. Mr Wenden conceded that at particular times it may be convenient for painting work to be undertaken between 6 am and 7 am. However, in general, it was better that all engineering staff worked the same hours so as to enable supervision and communication with trades staff to proceed in an effective and efficient manner. 23. Mr Wenden confirmed that while painting work, particularly smaller jobs, could be prioritised by the leading hand, it should be undertaken in consultation with the group engineer, Mr Sherer, or himself or another member of senior management. This was particularly the case with larger jobs. 24. Mr Wenden stated he was trying to establish and foster a collaborative approach between leading hands and group engineers so as to ensure there was an understanding of the workload and how it should be prioritised. Such an approach also encouraged communication to ensure that at all times, the Hospital was in the best state of repair. He subsequently cited an example where permanent improvements had been made to prevent damage occurring in areas that in the past had suffered repeated trolley damage or rain penetration. 25. Mr Wenden stated that it was impossible to paint a mental health patient room and possibly other areas of the Hospital prior to 7.30 am as the average patient was not able to leave their room prior to that time. 26. Mr Wenden confirmed that he was unaware Mr Sherer had suggested the meetings with leading hands was a waste of time and further stated he would be personally disappointed if that was the case. Mr Wenden stated the peak time for Hospital operations was between the core hours of 7 am to 3.30 pm when most of the morning staff were working and the various clinics and theatres operational. He also stated the Hospital operates at 100% capacity. Accordingly, if the painters worked from 7 am to 3.30 pm relevant nursing staff could be made available to move patients out of their rooms temporarily to facilitate painting and repair work. 27. Mr Wenden acknowledged he had no issues concerning the Zammits' ability or their performance: But this question is about whether it's more efficient to start at 6 or 7 in the morning, and I believe it is more efficient to start at 7… David Fenech 1. Mr Fenech has worked in the Public Health system since 1999 and in August 2012, was appointed Director Human Resources, Liverpool Hospital. Prior to working for the Respondent, he worked in Human Resources roles within the then Northern Sydney and Central Coast Area Health Service and the Northern Sydney Local Health District. 2. Mr Fenech deposed that his knowledge of the Zammits' case was substantially drawn from Hospital records. 3. Mr Fenech set out the history concerning the various requests made by the Zammit to change their working hours commencing in February 2007, when Craig Zammit sought to work from 6.15 am to 2.45 pm to collect his daughter from school and Cameron Zammit in August 2007, when he sought to work from 6 am to 2.30 pm for related reasons. Mr Fenech subsequently set out the history of applications made by the Zammits during the course of 2013 and 2015. (I do not propose to repeat the details of those applications here). Mr Fenech also set out in some detail the involvement of the Union of behalf of these Zammits. 4. With reference to Mr Connell's statement, Mr Fenech said the Policy Directive, September 2007 and the New South Wales Public Employment Office document, Flexible Work Practices Policy and Guidelines, October 1995 were "general documents". Their purpose was to convey "aims for the public sector, and their themes had been considered in the development of policies for NSW health". 5. Mr Fenech referred to the Information Sheet concerning flexible work requests stated that "maintaining appropriate levels of service delivery" together with lists of dot points for consideration, are to be taken into account in the assessment of any application for a change to working arrangements. 6. Mr Fenech referred to the Policy Directive which states; Flexible working hours involves changing starting and finishing times to satisfy both the employee and employer needs. Delegation to approve flexible working hours rests with them DCO [Director Clinical Operations, which under current delegations sits with the Director of Operations]. Approval where granted will be for a maximum of 12 months, with such done on an annual basis. Extensions will only be considered with evidence of benefits to both the employer employee can be demonstrated. 1. Mr Fenech stated that consistent with the Policy Directive, Mr Loy had considered the applications the Zammits made in May 2015 and subsequently rejected them. 2. It was Mr Fenech's evidence that there were no records to support the proposition that Mr Follers or Mr Potter had worked flexible hours as alleged by Mr Craig Zammit. 3. Mr Fenech stated there was no dispute that the Zammits had worked flexible hours since 2007. However, the Respondent's view was that those hours could no longer continue. Mr Fenech referred extensively to correspondence cited elsewhere in this decision including the letter addressed to the Union from Mr Loy dated 4 July 2014, which stated: In relation to flexible working arrangements, the applicable policy is Flexible Work Practices (SSW-PD2007_49) which states and approval in relation to flexible working hours, "will be for a maximum of 12 months". 1. In cross-examination, Mr Fenech was unaware of the circumstances related to an application by Mr Chacko for flexible working arrangements in November 2013. Moreover, he could not recall being involved in assessing the Zammit applications until 2015. 2. Mr Fenech was shown copies of various correspondence sent to the Zammits during 2014 and 2015. In response, he generalised that the terms of the flexible working hours policy could have been conveyed to them with greater precision. 3. It was Mr Fenech's evidence that he considered the Respondent was committed to ensuring staff maintain an appropriate work/life balance in circumstances where such arrangements could be accommodated. 4. Mr Fenech was subject to rigorous cross-examination concerning correspondence sent to the Zammits and attached to various statements tendered in proceedings, including the Statements of Mr Wenden and himself. 5. It was Mr Fenech's evidence that he did have some discussions with Messrs Wenden and Cook concerning the Zammits' case but could not recall approaching Mr Loy concerning his decision to initially disallow the flexible working arrangements. He further recalled that Messrs Wenden and Cook had suggested the reasons canvassed related to questions of supervision and "not wanting to create a precedent". 6. Mr Fenech was unaware of any references to work/life balance or flexible working hours set out on the Hospital's website and he had not looked at that website. He was, however, aware of the Premier's Department policies and the various NSW Health directives and documents such as the "Information Sheet". 7. Mr Fenech agreed that shortly stated, the Hospital's policy suggests that requests for flexible working arrangements should not be unreasonably denied. It was not his experience that the working of flexible hours was "common practice" across the Hospital. Stephen Sherer 1. Mr Sherer was appointed Acting Building Engineer in September 2014 and reports to Mr Wenden. He has worked in the building industry in a range of positions for almost 40 years. His current position requires him to supervise the work of plumbers, painters, carpenters and handymen. 2. It was Mr Sherer's evidence that a common start and finishing time for trades persons and other staff within the Engineering Department was beneficial to the Respondent. In his view, it was good management as it allowed proper supervision of the work to be done and for the prioritising of urgent work. Such benefits can be seen in the efficient dovetailing of the work involving the plumbing, carpentry, painting trades and handymen so as to ensure that the room, bed and ward areas or essential equipment requiring repair was returned to use as quickly as possible. This was highlighted in December 2015 when certain repair work in and around bed five in the Emergency Department had been completed quickly and efficiently by the handyman and the Zammits coordinating the required work. 3. Since late May 2015, Mr Sherer said it had been his practice to meet with the leading hand trades staff prior to the completion of their shift and usually during the last 30 minutes of the relevant shift, so as to enable him to prioritise the BEIMS to be commenced the following day. The meeting was also to allow Mr Sherer to check the status of work in progress or completed. Given the earlier finishing time of the painters, Mr Sherer arranged a separate meeting each day with Mr Craig Zammit between 2 pm and 2.15 pm. 4. Mr Sherer contended that the practice of meeting with the painters on a daily basis helped him to know where they would be working the next day and in the event of an urgent job, they could be contacted quickly. In that regard, Mr Sherer recalled that on 17 June 2015, he was contacted by a manager concerning the urgent requirement to undertake painting work in the food services dishwashing area because of an imminent Health Services Audit. As he was aware of the painters work location from his discussions with Mr Craig Zammit the day before, Mr Sherer was able to contact Mr Zammit and arrange for the necessary urgent painting work to be completed prior to the audit inspection. 5. Mr Sherer stated there were a number of problems associated with the painters finishing work at 2.30 pm. He was required to conduct two meetings each afternoon to cover painting staff and later, the other trades and handymen. Moreover, as it was not possible to conduct the meetings concurrently, the time gap 45 minutes between meetings required him to remain in the office area and not attend "to other pressing matters in the field". 6. In terms of work organisation, Mr Sherer said it was possible that directions given to Craig Zammit at 2.15 pm could be out of date by 6 am the following day because of issues that arise either after the painters leave work or overnight that require work to be reprioritised from 7 am the following day. Mr Sherer explained that once the painters had set up their ladders, drop sheets and other equipment at 6 am, it took some time for them to pack up, clean their equipment and set up again in the new work area. 7. Mr Sherer stated it would be more efficient and productive if the painters commenced work at 7 am. 8. Mr Sherer stated he did not consider Mr Craig Zammit's suggestion that he communicate with him by email or mobile phone appropriate. There were mobile telephone reception problems in the basement area of the Hospital. Further, he did not consider the suggestion amounted to a proper means of communicating work tasks. Rather, a face-to-face meeting with a leading hand provided a greater certainty that the nature of the tasks to be undertaken was understood. 9. In cross-examination, Mr Sherer confirmed that in May 2015, Mr Wenden had instructed him to meet with Mr Craig Zammit each afternoon. It was his evidence that Mr Zammit generally prioritised his own work and he would intervene in the event of an urgent request being made. It was generally the case that work was not reprioritised during the course of the afternoon end of shift meetings with Mr Zammit. 10. Mr Sherer confirmed that he had told Mr Zammit that daily meetings were not necessary and a weekly meeting on a Friday would suffice. He considered it was efficient to discuss matters with Mr Zammit during the day as he part of his daily visits to the various departments where he was required to prioritise and assess work and projects. 11. Mr Sherer acknowledged that while it was possible to communicate with Mr Zammit by mobile telephone, reception within the Hospital basement was poor and there had been times when he had found it difficult to contact Mr Zammit by telephone. In any event, Mr Sherer stated that he preferred face-to-face contact with leading hands. 12. Mr Sherer considered high priority painting work as potentially being repairs to damaged walls in the Mental Health Unit with the objective of putting the particular area or room back into service quickly. A substantial amount of the painter's work could be described as "planned", subject to emergency work being required at short notice. 13. Mr Sherer acknowledged the BEIMS system operated 24/7 – however, requests for maintenance work made during afternoon or night shift are only known when the relevant jobs are printed out each morning at 7 am. 14. Mr Sherer confirmed the painters carried their equipment through the Hospital on a special purpose mobile trolley and they could move from one job to another within the Hospital relatively quickly. He also considered that if a job was raised at 2.30 pm, it was possible that the required carpentry and painting work could be completed by 3.30 pm. Or, in the alternative, the job could be finished from 6am the following day. 15. Given Mr Wenden's direction that group engineers should meet with leading hands each afternoon at or around 3 pm, Mr Sherer considered such meetings would be "efficient" because Mr Zammit would be able to talk about his particular job(s) and he could then hear from the carpenter about his work activity and priorities. A further benefit would be that he would only have to convene one meeting for leading hands – enabling him to "spend more time out in the field" managing other responsibilities. 16. Mr Sherer was cross-examined about Code Yellow internal disaster and similar emergency responses. He confirmed all staff had received fire training as part of the Hospital's evacuation procedures. Mr Sherer also confirmed the Zammits had been required to assist in the search for suspicious items following a recent threatened incident. All staff at work at the time of the request were required to participate in that exercise. 17. Mr Sherer agreed that the relevant Hospital policy states the Engineering Department must work from 7 am to 3.30 pm each day. His understanding was that flexible hours "could be allowed, depending on the circumstances", but more generally, "will not be permitted". 18. Mr Sherer contended the Zammits' current working hours caused him concern because they cannot be managed for the first hour of the day and there were work, health and safety issues: If they're working in an isolated area and they're not together and somebody has an accident, then that person is laying there for four-five minutes unattended. 1. Mr Sherer conceded that some benefits could arise from tradespersons having a staggered start. However, he was of the opinion that "it would be more beneficial (if) everybody started at the one time and everybody finished at the one time". 2. Mr Sherer stated that while he was sympathetic to the Zammits' circumstances: It is difficult to support, as documented Hospital start and finish times are seven till 3.30 and should be adhered to so there is supervision for all employees. Submissions 1. Whilst I have considered all of the material put to me in this matter, I propose to briefly summarise the final submissions of the parties in the terms set out below. Union 1. As a matter of industrial justice, there was no basis for the Respondent to refuse to permit the Zammits to work flexible hours so that they can collect their primary school children from school and care for them each afternoon. 2. No family members were available to assist with after school care arrangements. Child care was not affordable on the grounds that they currently paid school fees and private health insurance. If the families were forced to pay child care, swimming lessons for the children may need to be dropped. 3. The evidence of Ms Michelle Zammit was that if her husband Cameron finished work at 3.30 pm, he would arrive at the Edensor Park Child Care Centre shortly before his children arrived by bus. 4. In terms of work organisation, the Union contended most painting work was not urgent and was generally pre-planned. Work is allocated through the BEIMS system, and sometimes directly through the carpenter. Mr Sherer also allocated painting work "a few times per week". 5. The Respondent has refused to provide the Zammits with reasons for the changes sought. For their part, the Zammits did not see that the Respondent was disadvantaged by the current flexible working hours arrangements. Painters were readily contactable if necessary. 6. The Union relied on the evidence of Mr Connell to support the proposition that the painters can work unsupervised. The evidence of the Respondent's witnesses that the current arrangements should not continue was flawed. The Respondent had not raised any issues related to work performance and the evidence concerning the need for a change was vague. 7. Simply put, the Union was dismissive of the Respondent's objectives under the "Whole of Hospital" approach to work with affected staff to improve operational efficiency, work co-ordination, and communication within and across the spectrum of trades staff. It considered the one hour differential made no practical difference to the coordination or efficient performance of painting work. Moreover, the Union considered much coordination and prioritisation was already being undertaken by the parties and sometimes involved Mr Sherer. 8. There was no evidence parties were required to perform a significant role when emergency procedures are invoked. The Union submitted that the afternoon meetings sought by the Respondent with leading hands was not occurring daily as alleged. 9. It was further contended that the Zammits' applications for an extension of their flexible work arrangements were consistent with the prevailing anti-discrimination laws or the Respondent's commitment to ensure staff maintain a work/life balance where family responsibilities are accommodated. 10. The Union considered that it was largely irrelevant when the Zammits commenced and finished work because much of their work was not urgent. 11. The Union contended that the Policy Directive was inconsistent with the principles contained in the Anti-Discrimination Act 1977 on the grounds that it only permits flexible work hours to be granted to employees with carer's responsibilities if a positive benefit to the employer can be demonstrated. Accordingly, it was the Union's case that s 49V (4) of the Anti-Discrimination Act required the Respondent: …to refrain from discriminating against employees with carer's responsibilities on the basis of those carer's responsibilities, and only excuses the Respondent from such discrimination if the arrangements required of the Respondent to enable the employees to perform the inherent requirements of the job would impose "unjustifiable hardship" (on the employer). 1. The Union contended the Anti-Discrimination Act does not permit an employer to refuse to make arrangements to enable a person with carer's responsibilities to perform the inherent requirements of the job unless a positive benefit to the employer can be demonstrated by the employee. The Respondent should not be permitted to "hide behind" a policy which is inconsistent with the principles contained in the Anti-Discrimination Act. 2. The Union submitted the Policy Directive and Information Sheet, together with recent statements attributed to the New South Wales Premier to the effect that" all NSW government jobs are to be made fully flexible by 2019", were relevant to the Commission's consideration. 3. The Union submitted the Respondent had allowed women in various nursing and administrative roles to work flexible hours to meet carer and family responsibilities. However, it was clear that a decision had been made not to provide a similar benefit to Engineering Department staff. 4. The Union was critical of the Respondent's evidence concerning the "Whole of Hospital" approach, particularly the evidence of Mr Cook and Mr Wenden, who it alleged had very little knowledge of the actual management and organisation of work within the Engineering Department and, seemed unaware of Mr Sherer's role of allocating or supervising the work of the painters. 5. The Respondent has failed to identify any tangible difficulties or inefficiencies created by the current flexible work arrangement afforded to the Zammits. The alleged inconvenience and inefficiency asserted by the Respondent simply cannot be made out on the evidence. Moreover, it was simply wrong for the Respondent to suggest that the Zammits' current working hours created any impediment to efficiency. In that regard, the Union sought to rely on the evidence of Mr Rawson, who asserted that up until his retirement at the end of 2013, several tradesmen, including Mr Chacko, a Refrigeration Technician, had commenced work at 6 am and allowed them "to access areas of the hospital to effect repairs prior to patients and visitors being admitted". 6. The Union also considered that the Respondent's conduct concerning the Zammit's' applications, including the failure to provide reasons for decisions, was relevant to the matter being determined by the Commission. Argument in favour of remedy sought 1. The Union contended the orders sought fell within the scope of s 136 (b) (c) or (d) of the Act and there was no impediment to the Commission granting such orders. 2. The Union drew the Commission's attention to the decision of Grayson DP in Australian Services Union of New South Wales v Sydney Water Corporation [2004] NSWIRComm 294 where the Union sought and obtained orders pursuant to s 136(1)(b) of the Act to the effect that two employees should be appointed by Sydney Water to particular positions. At [17] to [21], His Honour stated: 17. Turning then to the nature of relief sought by the ASU, it is contended by Mr Fitzgerald for Sydney Water that the first order sought does not fall within the kind the Commission is empowered to make under section 137 of the Industrial Relations Act Zammit (the Act). Mr Fitzgerald as I understand him did not take issue with the Commission's power under section 136 to make an award in arbitration proceedings but rather suggested that many of the decisions of the Commission purporting to make orders are in fact the Commission exercising its power under section 136 (1) (b) to make awards. 18. That submission, however, overlooks the definition of award contained in the Dictionary at the end of the Act which is as follows: award means an award made, or taken to be made, by the Commission under this Act, and includes any order of the Commission under this Act that sets conditions of employment. 19. The Dictionary at the end of the Act then defines conditions of employment as including any provisions about an industrial matter and section 6 of the Act thereafter provides by way of a general definition and a series of examples, a wide-ranging scope for the operation of the Act with respect to industrial matters. 20. I do not consider and to be fair to Mr Fitzgerald it is not strongly pressed, that the Commission is limited in its arbitral function in such a way as to preclude the granting of relief in the nature of the relief sought by the ASU in the first order for which it here applies. Conversely, I am of the view that the Commission would if so satisfied on the evidence, be within the scope of section 136 (1) (b) of the Act in making an order of the type sought by the ASU. 21. I note there is support for that view in the unreported decision of Sams DP in IRC No. 810 of 2002 Australian Liquor Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch v Parramatta Leagues Club Ltd [2002] NSWIRComm 208 upon which the ASU relies. In that case, Sams DP although declining on the merits to grant the relief sought by the notifying Union, rejected the employer's submission to the effect that the Commission lacked power in the arbitration of a dispute, to make an order under section 136 of the Act of the type sought by the Union in that case. His Honour held that section 136 provided sufficient scope to make orders of the type sought by the Union fixing the hours of work of a casual employee quite independently of and distinctly to the kinds of dispute orders envisaged by the limiting provisions of section 137 of the Act. 1. The Union was granted leave to file further written submissions concerning remedy in response to the Respondent's primary submission that the Commission had no power to make the Award sought. 2. In subsequent written submissions, the Union referred the Commission to the decision of Sams DP referred to above in Sydney Water Corporation in Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd [2002] NSWIRComm 208 re reduction of hours. That decision concerned the notification of an industrial dispute under section 130 of the Act. In that case, Sams DP, whilst declining to grant the relief sought by the Union, dismissed the employer's argument that the Commission lacked powers in the context of an arbitrated dispute, to make an order under s 136 (1)(b) as sought by the Union in that particular case. Sams DP held that sufficient scope existed within s 136 to make the orders sought by fixing the hours of work of a casual employee independently of the limiting provisions of s 137 of the Act. At [104] to [112], His Honour stated: [104] In my view, Mr Jones' argument simply cannot be right. Section 136 is a discrete section which authorises that Commission to do any number of things in arbitrating a dispute, such as making recommendations, giving directions, making or varying an award, making a dispute order under Pt 2 and making any other order the Commission is authorised to make. [105] On a proper construction of the section, these powers must be seen as operating independently of, and distinctly to the kinds of dispute orders envisaged by the limiting provisions of s 137. [106] This interpretation is strengthened by the discrete reference to Pt 2 dispute orders in s 136(C). In other words, sub para (c) is directly referable to s 137 and the limitations contained therein, while sub para (d) envisages different kinds of orders to those arising from industrial action. [107] Logically, it simply cannot be said that the only orders the Commission can make under s 136 are those limited by s 137. As I said during the proceedings, such a proposition would mean that hundreds of orders made by the Commission over the years were beyond power. [108] It is also pertinent to refer to the definition of "industrial matters" in s6(1) of the Act: 6(1) General definition. In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. [109] Moreover, the definition of "industrial dispute" in the Act's Dictionary makes it perfectly clear that industrial action need not be the trigger to orders that can be made under s136. The definition makes no reference to industrial action. One can, I think, comfortably accept that a broad definition of an industrial dispute is plainly contemplated by the Dictionary definition. [110] Given these observations it would be an absurd result that would bar the Commission from making orders on a wide range of industrial matters which may be the subject of an industrial dispute. [111] It will be immediately apparent that acceptance of Mr Jones's submission would have the consequence of actually encouraging industrial disputation. Surely this cannot have been the intention of the legislature and is directly contrary to the spirit and intent of the Act. [112] Mr Jones' submission has no substance. It is rejected. 1. The Union rejected the Respondent's argument that the Commission had no power to make the Award sought in arbitral proceedings of this nature. Moreover, the Union dismissed the proposition that if it had sought the making of an award, it was required to mount a case that satisfied Principle 8 of the Commission's Wage Fixing Principles set out in State Wage Case 2015 [2015] NSWIRComm 31. The Union submitted it was not seeking an increase in wages and salary or a change in conditions. It referred to the Dictionary definition of "award" and "conditions of employment" and the definition of "industrial matter" under the Act to support the proposition that the orders sought "would constitute "award under Part 1 of Chapter 2" of the Act with particular reliance on the provisions of ss 10 and 11: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 11 When award may be made (1) An award may be made: (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. (2) An application for an award may be made only by: (a) an employer, or (b) an industrial organisation of employers or employees, or (c) a State peak council. (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. 1. The Union submitted the nature of the orders it had sought in these proceedings would constitute an "award" under Chapter 2, Part 1 of the Act. In that regard and consistent with ss 10 and 11 of the Act, the Commission has power to make the orders sought pursuant to s 136(1)(b) of the Act. In the alternative, it was open for the Commission to make a direction or recommendation pursuant to s 136 (1)(a) of the Act. Test to be satisfied before the Commission should intervene 1. The Union referred to the decisions in Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117 and BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 127 relied upon by the Respondent to support the proposition that it had the right to exercise its prerogative to manage its operations as it saw fit and particularly with respect to hours of work within the Engineering Department, without undue interference by the Commission 2. In giving consideration to management prerogative, the Union submitted the Commission was required to perform a "weighing exercise" in order to determine whether industrial injustice is being afforded to the Zammits. Put alternatively, the Commission must determine whether the Respondent's proposed action would impose "unfair or unreasonable demands" on them. 3. The Union also rejected the proposition that this matter was analogous to the circumstances of an employee considered in HSUeast (now known as Health Services Union NSW) and Sydney Local Health District [2012] NSWIRComm 97. In that case, the employer had notified an employee of an intention that she was required to commence work at 7.30 am rather than 6.30 am, as had been the case historically. The employee did not want to change her hours of work for reasons related to her after work commitments, which included a requirement to attend physiotherapy appointments three times per week. Staff J concluded that there had been no unfair or unreasonable treatment of the employee concerning the change to her working hours. 4. The Union considered the requirement to look after a child was more pressing and not comparable to "after work commitments", as was the case in HSUeast. Moreover, carer responsibilities were protected by the Anti-Discrimination Act. 5. The remedy sought by the Respondent was unfair on the following grounds: * the Zammits have no immediate family members to assist them; * the Zammits' children are dropped off to school by their mothers when the school gate opens and their parents do not want them to attend childcare as well in the afternoon; * the Zammits are low income families and the cost of childcare pressure on their family budget is prohibitive. Swimming lessons for their children may need to cease; * if Cameron Zammit was to work until 3.30 pm and his children children were required to attend childcare, he would be able to meet the bus when it arrived at the childcare centre; * the Zammits have been permitted to work the current hours for a number of years without any negative impact on productivity or work safety; * painting work was generally planned in advance, sometimes re-prioritised and rarely urgent. Accordingly, little change would occur with a 3.30 pm finish; and * the Respondent's desire to change working hours in order to improve supervision, communication and better coordinate work within the Engineering Department was not persuasive. 1. In the event the Commission was not persuaded to make the orders sought, the Union submitted the Commission should make a direction that the Zammits be afforded a continuation of the current flexible working hours arrangements. Respondent 1. The Respondent submitted the Commission should not intervene in this matter unless it is comfortably satisfied that the Respondent's conduct was unjust or unreasonable. In pressing this matter, the Union is asking the Commission to assume the role of the employer and interfere with a system of work that has been developed consistent with the Respondent's business requirements. 2. Notwithstanding the fact that the Zammits have been on notice for a considerable period that the Respondent sought to align their working hours with other trades staff, the Respondent contended that the change should be subject to a transitional period. 3. Liverpool Hospital is the largest within the LHD and is also one of the busiest hospitals in New South Wales, with 220 daily patient admissions and approximately 215 presentations to the Emergency Department. The Hospital has experienced performance issues including a financial deficit of $8.2 million in the 2014/15 financial year. The Respondent submitted that s 28 of the Health Services Act 1997 provides: The local health district board for a local health district has the following functions: … (b) to approve systems: (i) to support the efficient and economic operation of the local health district, and (ii) to ensure the district managers its budget to ensure performance targets are met, and … 1. Against the backdrop of performance issues and financial constraints, the Hospital has been required to examine all of its operational and functional areas, including clinical and support services, so as to ensure to the best extent possible, it operates at peak efficiency at all times. For its part, the Engineering Department needs to be responsive to the Hospital's requirements and ensure that work is coordinated efficiently and effectively. In that regard, the "Whole of Hospital" approach has resulted in increased emphasis being placed on trades staff to perform their duties in a timely and efficient manner, requiring greater coordination of their work. 2. Whilst challenged by the Union, Mr Wenden has directed group engineers since 2015 to meet informally with trades staff and leading hands immediately prior to the end of each shift. The purpose of those meetings was to ensure that supervisors were up-to-date on the work completed and aware of the plans for the following day. Those meetings also provided an opportunity for particular issues to be raised and for work to be prioritised and where necessary, assessed or reassessed consistent with the operational requirements of the Hospital. 3. The Respondent submitted the evidence of Mr Sherer was that he continued to meet with trade staff on a regular basis, albeit not necessarily on every single day. The Respondent sought to underpin the importance of the meetings with trades staff and leading hands to achieve the "Whole of Hospitals" objectives concerning improved efficiency. 4. The Respondent referred to the evidence of Mr Sherer that he was required to "double up on meetings" because he was required to meet the leading hand painter at approximately 2.15 pm prior to meeting the other leading hands at 3.15 pm. Mr Sherer considered the 45 minute gap between the two sets of meetings could be used more effectively attending to other pressing matters facing the Engineering Department, including meetings with contractors and other staff. 5. The Respondent sought to rely upon the evidence of Mr Craig Zammit given on 26 November 2015 to the effect that for a "lot of the time", Mr Sherer "doesn't know what I am doing", to support the proposition that the new approach to work sought to override the past practices that saw trade staff largely left to their own devices. 6. Shortly stated, it was the Respondent's position that the Zammits had worked from 6 am to 2.30 pm for a number of years to assist them to collect their children after school. Currently, all engineering trades staff commence work at 7 am and finish at 3.30 pm, with the exception of the Zammits and two staff engaged in the operation of the Central Energy Station, who also work from 6 am to 2.30 pm. 7. The Respondent has sought to align all engineering trades staff standard hours of 7 am to 3.30 pm 8. The Respondent considered that the Health Information Sheet and the Policy Directive do not preclude the change sought. In that regard, the Respondent submitted that the Health Information Sheet identified 9 criteria to be taken into consideration in assessing applications for changes to working arrangements. The criteria is to be viewed in the context of the Respondent being required to maintain "appropriate levels of service delivery" and have been considered in assessing the Zammits' applications. 9. The Policy Directive is directed towards balancing the interests of the Respondent and its employees. The Policy Directive also states that requests for flexible working arrangements "that will be mutually beneficial for the employee and the area health service" will be considered. The Policy Directive also notes that approval for flexible working hours arrangements will be granted for a maximum of 12 months and will be considered "where evidence of benefits to both the employer and employee can be demonstrated". 10. The Respondent stated the Hospital had implemented a number of work practice changes including the requirement that trade staff complete their work requisitions in a timely fashion and provide a record of the tasks undertaken. Supervision had been improved and there was now an increased focus on prioritising work and better coordinating the allocation of work. 11. The Hospital considered that it was important that the work of trade staff "dovetails" where possible to ensure work is completed both efficiently and effectively. The evidence of Mr Wenden was that the Hospital's peak operational period was between the core hours of 7 am and 3.30 pm. The most efficient and effective means to coordinate the work of trade staff was within that period of time. 12. It was the Respondent's submission that Mr Cameron Zammit had accepted in cross-examination the principle that a later finishing time would enable a priority job to be assessed and its expeditious completion planned and coordinated. The Respondent also dismissed the assertions relied upon by the Union that the 6 am start time was beneficial. Rather, any purported benefit of a 6 am start needed to be balanced against the disadvantages and inefficiencies that occur by the working hours of the Zammits not being aligned to those of the other trades. 13. Mr Wenden considered differing working hours caused inefficiencies and inconvenience that would be remedied if the working hours of all engineering trades' staff were aligned. For example, any change in work priorities cannot be drawn to the Zammits attention before they commence work at 6 am. Once the painters have set up their painting equipment, ladders, drop sheets and the like at 6 am, time is lost should painting work need to be reprioritised. Accordingly, a later finish time would mean urgent jobs could be communicated at or prior to 3.30 pm rather than 7 am the following day as is the current practice. 14. The Respondent submitted that it was not normal practice for reasons to be provided in circumstances where a request for the continuation of a flexible working hours arrangement had been declined. In any event, the Zammits were not prejudiced by that omission. Argument against remedy sought 1. The terms of the orders sought by the Union would require the Respondent to make the following operational changes: 1. the current flexible working arrangements to continue until the end of the 2018 and 2019 school years; 2. the duties of the After-Hours On Call Manager would be required to change requiring him to coordinate the reprioritisation of painting jobs at or prior to 6 am in circumstances where such work is currently assessed by managers and supervisors at the commencement of the 7 am shift; 3. increased use of email or mobile phone contact as a means of communicating job requests at or prior to 6 am. 1. In order to attract the Commission's intervention, the Union was required to show satisfactory and convincing reasons exist to support the proposition that the Commission should interfere with the Respondent's capacity to manage its various operations as it sees fit and particularly manage its operations in terms of the working hours of engineering trades staff employed by the Hospital. In that regard, Respondent sought to rely on the decision in Steel Works Employees and Engine Drivers, & c (Australian Iron and Steel Limited – Port Kembla) Award [1956] AR 855 at 899 where Richards J observed: The Company is entitled to decide upon and introduce its own system of working hours and only in very extreme circumstances would the Commission interfere with this right. 1. The Respondent further relied upon the decisions of the Commission as presently constituted in Health Services Union v Ambulance Service of New South Wales re- Changes to Demand Protocol [2008] NSWIRComm 1027 and Notification under Section 130 by the Ambulance Service of New South Wales of a dispute with Health Services Union re-threatened industrial action in Inner Hunter Area [2008] NSWIRComm 1136 to support the proposition that the Commission will not lightly interfere with the rights of an employer to manage its business unless those rights are exercised unjustly or unreasonably or impose harsh, oppressive or unsafe demands employees or, the work to be performed is unjust or unreasonable. 2. The Respondent further submitted the Union's case in this matter was analogous the circumstances that gave rise to the dispute and ultimate determination by Staff J in HSUeast. In that case, the local health district proposed to alter the start and finish times of a ward assistant from 6 am to 2 pm, to 7.30 am to 4 pm. The employee was given the approximately 6 weeks notice of the proposed roster change. 3. The Union argued that the employee had worked her 6 am shift for almost 31 years and should retain her 6 am start time on the grounds that she had significant commitments after work. She acknowledged there were certain temporary periods where she had worked from 7 am to 3.30 pm. The Local Health District's evidence was that a 7.30 am start suited the demands of the particular ward where the employee worked, with after-hours ward assistants commencing work at 4.30 pm Monday to Friday. 4. During the proceedings before his Honour, the Local Health District acknowledged that where possible, attempts were made to accommodate staff requests to change their rosters. However, rosters would ultimately be arranged "according to the operational needs of the Ward". Against that backdrop, the Respondent urged the Commission to adopt a similar view to his Honour and determine that the Zammits should work from 7 am to 3.30 pm each day. Such an arrangement would also be subject to a transitional period as was the case in HSUeast. 5. The Respondent submitted that the Commission should be cognisant of the fact that Liverpool Hospital was functioning within the environment of increased budgetary restraint and is required to conduct its operations in the most efficient and effective way possible. 6. The orders sought by the Union require the Commission to interfere with the Respondent's right to manage its business efficiently and effectively. It was the Respondent's submission that the Commission should only intervene in circumstances where what is sought by the Respondent "imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice". 7. The Respondent submitted that in determining whether the changes sought impose unfair or unreasonable demands on the Zammits, the Commission should consider the following factors: 1. the Respondent's need to maintain appropriate levels of service delivery across the LHD and Liverpool Hospital; 2. the Award does not prevent the changes sought by the Respondent; 3. the proposal and reasons outlined by the Zammits in support of the continuation of their flexible working arrangements have been considered by the Respondent and "weighed" as part of the balancing exercise already undertaken by the Respondent; 4. the fact that the Zammits earning capacity was limited is not determinative. The Zammits have chosen to send their children to non-government schools. Mr and Mrs Cameron Zammit are able to make additional superannuation contributions. Moreover, their position is not unique and many families, including low to middle income families, also bear the burden of after school child care costs; 5. as painters, the Zammits are part of a coordinated trades workforce that is required to undertake duties as efficiently and expeditiously as possible so as to assist the Hospital to meet its operational requirements; 6. whilst it is true that painting work can be undertaken outside of the general trade staff working hours, that arrangement cannot exist without imposing ongoing inefficiency and burden within an environment that demands increased accountability budgetary restraint; 7. as part of the "Whole of Hospital" approach, supervision of trade staff has been increased and the current working hours of the Zammits impedes the efficiency of that new level of supervision. Mr Sherer, for example was required to meet with leading hands and supervisors each day. He is also required to convene a second meeting with Mr Craig Zammit, the leading hand painter; and 8. the alignment of the Zammits' working hours with other trades staff should provide opportunities for further improvements be made to service delivery. 1. The Respondent submitted that what it was seeking from the Zammits was not unreasonable. There was an offer to apply a transitional arrangement. The Respondent further urged the Commission to consider that offer when considering the principles contained in the Anti-Discrimination Act as urged by the Union. 2. It was the Respondent's submission that the Commission does not have power to make the "orders" sought by the Union on the following grounds: 1. No case has been made during the proceedings to make or vary an award as provided by s 136(1)(b). Any such application would need to satisfy the requirements of an Arbitrated Case under Principle 8 of the Commission's Wage Fixing Principles enunciated in State Wage Case 2015 [2015] NSWIRComm 31; 2. It does not appear the Union seeks the making of a dispute order as provided by s136(1)(c); and 3. there is no power that authorises the Commission to make the "orders" sought by the Union under s136(1)(d); 1. The Respondent submitted the Commission's powers under s 136 were limited to the making of a recommendation or the giving a direction to the parties as provided by s 136(1)(a). In that regard, the Respondent submitted the Commission should not make a recommendation or give a direction in terms of the "Orders" sought by the Union. Rather, the Commission should determine a fair and reasonable transition period for the Zammits to commence working the 7 am to 3.30 pm roster and otherwise dismiss this application. Test to be satisfied before the Commission should intervene 1. The Respondent submitted the Union must show satisfactory and convincing reasons why the Commission or to intervene in this matter. Shortly stated, the Union has urged the Commission to interfere with the Respondent's capacity to manage its operations as it sees fit and in particular, manage its operations in terms of setting the working hours of Engineering Department trade staff. In that regard, the Respondent contended it was not for the Commission to substitute its own views should they be different from the Respondent, "without more" being shown: In re Department of Tourism Appointments [1980] AR (NSW) 241 at [259]. 2. In order to attract the Commission's intervention, the Union was required to show satisfactory and convincing reasons exist to support the proposition that the Commission should interfere with the Respondent's capacity to manage its various operations as it sees fit and particularly manage its operations in terms of the working hours of engineering trades staff employed by the Hospital. 3. The Respondent submitted the Commission should not intervene in this matter unless it was comfortably satisfied that the Respondent's conduct was unjust or unreasonable. The applicable test for the Commission's intervention was summarised by Hungerford J in BHP Steel (AIS) Pty Limited as follows: The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of long-standing and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice … 1. Reliance was also placed on the decision of Harrison DP in Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority [2007] NSWIRComm 162 at [88]:where his Honour observed: Management hold a responsibility to determine business needs and may require employees to work where these needs require. The obligation of the employee is to meet all lawful and reasonable requests of the employer. 1. The Respondent further relied upon decisions of the Commission as presently constituted to support the proposition that the Commission will not lightly interfere with the rights of an employer to manage its business unless those rights are exercised unjustly or unreasonably or impose harsh, oppressive or unsafe demands employees or, the work to be performed is unjust or unreasonable. 2. The Respondent firstly referred to the decision in Ambulance Service of New South Wales re - Changes to Demand Protocol where the Commission stated at [189]: In my view, the various authorities referred to by the parties concerning managerial prerogative lead me to conclude that it is not the role of this Commission to interfere with the rights of management except when those rights are exercised unjustly or unreasonably or, impose harsh, oppressive or unsafe demands on employees. This is not such a case. 1. Second, the Respondent referred to the decision in Notification under Section 130 by the Ambulance Service of New South Wales of a dispute with Health Services Union re-threatened industrial action in Inner Hunter Area. In that case, the Commission observed at [179]: This case must necessarily be decided by reference to the notion of management prerogative. In consideration of the authorities raised in these proceedings, it is well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, unless the work asked to be performed by the employees is unjust or unreasonable. 1. The Union's position throughout this particular dispute was that the flexible working arrangements afforded to the Zammits were unassailable. The Respondent contends it has a right to manage its business and the Commission should only intervene where the Respondent's actions impose unfair or unreasonable demands on employees. Consideration 1. In determining this matter I have read and considered all the material filed by the parties including the various witness statements, relevant authorities and the submissions. 2. This matter is one which should have been resolved in conciliation. However, that was not the case and the Union continued to press its total opposition to the proposal by management that the hours of work of two painters, Mr Craig and Mr Cameron Zammit revert to the standard Engineering Department hours of work of 7 am to 3.30 pm. 3. The reason for the changes sought by the Respondent and the reasons why the Zammits' current flexible working hours arrangement should continue are set out in the respective submissions above. The Respondent argued in part that there is a management prerogative in implementing the change sought. The variation to commencing times will allow management to better plan and manage maintenance works as part of the "Whole of Hospital" approach adopted to reduce a budgetary deficit and, implement efficiencies across both maintenance and clinical areas. 4. During the hearing, the Union sought to discredit the evidence of the Respondent's witnesses insofar as the understanding behind and the requirement for, the recently introduced meetings between managers and leading hands each afternoon at or around 3.30 pm. Having considered all the material before the Commission concerning the merits of such meetings, I have determined that it matters not that the evidence of the Respondent's witnesses concerning the value of the end of shift meetings may not have fully reflected the decisions of senior management. Rather, what really matters here is the resolve by senior management to introduce what it considers to be a more efficient and accountable method of managing engineering maintenance tasks with the ultimate goal being improvements to efficiency and productive performance and, reducing costs. 5. In this matter, there is no award impediment to the changes sought by the Respondent. There is also evidence that the Respondent has consulted extensively with the Union. And, there can be no argument that the Union has sought to represent the Zammits with vigour. Simply put, the Union has sought to thwart the Respondent's proposals to improve operational efficiency. 6. As a general proposition, industrial tribunals will examine all the faults of the case and will not interfere with the right of an employer to manage, unless what is being sought by the employer imposes an unfair or unreasonable demand on the employees subject to the change sought, otherwise known as industrial injustice. It is not, however, the role of the Commission to place itself in the shoes of the Respondent or Union. Rather, the Commission is required to view objectively the cases relied upon by the Respondent and Union alike. That task also requires the Commission to have regard to the rights of the Respondent to manage its business in an efficient and productive manner. Similarly, there is a requirement for the Commission to consider the rights of the Union and its members to resist the possibility of an unfair or unreasonable outcome resulting from the exercise of the Respondent's management prerogative. 7. The evidence of Ms Michelle Zammit and Ms Belinda Zammit largely speaks for itself. There was a common theme that the Respondent's proposal would cause their families an injustice and after school child care was not affordable. There was no forensic financial evidence before the Commission to support the contentions made that child care was in fact not affordable. Nor was there any consideration of the alternatives that may exist for non-family and non-child care centre care for their children by say, other parents at the school. 8. The evidence of Mr Connell was that the Information Sheet stated requests for flexible hours should not be unreasonably denied. However, Mr Connell also agreed that the Policy Directive stated flexible hours arrangements must "satisfy both employer and employee needs" and "approval can only be granted for a maximum of 12 months". 9. In cross-examination, Mr Connell acknowledged that the Award stated the employer had the right to determine hours of work and work rosters. He further agreed that the Zammits had been on notice since April 2014 that the Respondent proposed to end the flexible working hours arrangement in May 2015. 10. The evidence of Mr Craig Zammit was that he did not consider the current flexible working hours arrangement had any impact whatsoever on the operational efficiency of the Emergency Department. He agreed that his prioritisation of work was ultimately subject to further approval or a direction from Mr Sherer. Whilst perhaps a rare occurrence, Mr Zammit agreed with the proposition that if he finished work at 3.30 pm and a job requisition was issued after 2.30 pm, he would be able to assess paint quantities and load the trolley ready for a prompt start at 7 am the following day. 11. Notwithstanding his opposition to the changes sought by the Respondent, Mr Zammit agreed in cross-examination that the Respondent had the right to determine how work would be arranged and allocated to maintain efficiency. 12. The evidence of Mr Rawson was that he did not consider the Zammits' flexible working hours arrangement affected the operational efficiency of the Engineering Department. Having retired in December 2013, he had no knowledge of the Respondent's current proposals to improve staff supervision and the coordination of their work. 13. Mr Nelson appeared to "play down" the role of management to supervise or, better supervise, the work of leading hands. He was not aware of the "Whole of Hospital" approach and its objective to improve efficiency and reduce costs. While supporting the Zammits' case. Mr Nelson did acknowledge it was the role of management to determine how best work would be undertaken. 14. Mr Cameron Zammit's evidence was supportive of the evidence submitted by his brother. Mr Zammit confirmed that he became aware of the Respondent's desire to end or alter the flexible working hours arrangement in 2013. He confirmed that he was told in May 2014 that the arrangement would cease in May 2015. 15. Mr Zammit understood the requirement to reduce costs and better coordinate work so as to achieve increased efficiency. He recognised that the Respondent now required its managers, including Mr Sherer, to become more involved in the allocation and coordination of work and, as part of that process, meet with leading hands each afternoon. 16. Ms Arnold's evidence was that during the course of 2014, she informed the Zammits that they were required to submit a fresh application for flexible hours. Moreover, when communicating with the Zammits, Ms Arnold confirmed that she had considered the relevant hospital policies governing flexible working hours arrangements. 17. Mr Cook confirmed that in the 2014/15 financial year, the Respondent posted an $8.2 million deficit. In response to that dilemma, the Respondent had implemented procedures under the "Whole of Hospital" approach to improve operational efficiency and reduce costs. Mr Cook stated that due to high occupancy levels, the Respondent could not afford to have a patient room out of service for any significant period of time. Accordingly, while urgent repairs may be rare, standardised hours of work for all engineering trades staff would enable the Respondent to maximise the resources available to effect emergency repairs. 18. Mr Cook considered the current requirement of Mr Sherer to conduct two leading hand meetings each afternoon was an impediment to operational efficiency and the objective of the Respondent to improve the planning and coordination of work. 19. Mr Wenden had extensive experience in the provisions of engineering services with the NSW hospital system. Proper management of maintenance works enabled the Respondent to minimise hospital block (100% bed capacity) and increase the utilisation of patient beds. 20. Mr Wenden considered standardised hours would assist the Respondent to foster an integrated, flexible and responsive workforce and culture. Mr Wenden also confirmed that he had instructed managers to meet daily with leading hands to discuss workload and the privatisation of that work. 21. Mr Fenech confirmed the requirements of the Policy Directive concerning applications for flexible working hours. Generally, approval will be granted for a maximum period of 12 months, with any extension of that arrangement being subject to the demonstration of a mutual benefit. 22. Mr Sherer considered a common 7 am start time provided an opportunity for proper supervision and the prioritisation of work. The planned afternoon meetings with leading hands were beneficial – although the requirement to meet separately with Mr Zammit impeded him from dealing with other work requirements. 23. Mr Sherer dismissed the proposition of Mr Craig Zammit that he could be contacted after 2.30 pm each day concerning priority work by phone or email. Moreover, Mr Sherer suggested a common 7 am start would enable painting work to be prioritised at that time – rather than the current practice that required the painters to pack up a job commenced at 6 am should an urgent job arise overnight. Shortly state, it was Mr Sherer's evidence that the painters need to be managed from their commencement time so as to ensure work priorities are realised. 24. These proceedings originated in a notification pursuant to s 130 of the Act by the Union of a dispute with the Respondent concerning the withdrawal of a flexible working hours arrangement applicable to two painters. 25. In terms of remedy, the Union sought the following orders: That, for the period that Mr Craig Zammit has one or more children attending primary school, the Respondent will permit Mr Craig Zammit to continue to work his ordinary hours from 6am until 2:30pm each weekday in order to enable Mr Craig Zammit to pick up his child (or children) from school and care for his child (or children) in the afternoon. That, for the period that Mr Cameron Zammit has one or more children attending primary school, the Respondent will permit Mr Cameron Zammit to continue to work his ordinary hours from 6am until 2:30pm each weekday in order to enable Mr Cameron Zammit to pick up his child (or children) from school and care for his child (or children) in the afternoon. 1. In oral submissions, the Union contended the orders sought fell within the scope of s 136(1)(b), (c) or (d) of the Act and there was no impediment to the Commission granting such orders. In the alternative, the Union sought a recommendation or a direction pursuant to s 136(1)(a). Subsequent written submissions were somewhat confusing. Here, the Union relied on decisions of the Commission to support the granting of a remedy pursuant to s 136(1)(b) and (c), but did not withdraw from its earlier reliance on s 136(1)(d). 2. The dispute notification did not specify the relief sought in terms of the remedies available under s 136 of the Act. There is no application before the Commission to make or vary an award. On balance, the Respondent was really unaware of the case it was required to answer until final submissions. 3. Section 136 of the Act relevantly provides: 136 Arbitration of dispute 1. The Commission may, in arbitration proceedings, do any one or more of the following: 1. make a recommendation or give a direction to the parties to the industrial dispute, 2. make or vary an award under Part 1 of Chapter 2, 3. make a dispute order under Part 2, 4. make any other kind of order it is authorised to make (including an order made on an interim basis). 1. Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 1. It must be said that the remedy sought in terms of the making of an award or the variation of the existing Award or the making of a dispute order received very little attention in the proceedings. There is no general power in the Act to make awards or orders about an "industrial matter" pursuant to an industrial dispute. The Commission's arbitral powers in s 136 are limited: NSW Teachers Federation v Department of Education and Training (2003) 121 IR 177 at [31]. 2. The Respondent's submission that in the event the Union sought the making or varying of an award as provided by s 136(1)(b), it would need to mount a case that satisfied the Arbitrated Case Principle promulgated in the State Wage Case 2010 (No 2) [2011] NSWIRComm 29 is correct. 3. An application made pursuant to s 136(1)(b) must meet the threshold evidentiary requirements of the State Wage Case 2010 Principles. In City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49, the Full Bench observed: 9 It is appropriate that we set out the fundamental principles governing award making and the Special Case Principle. 10The Commission's award making powers are conferred upon it by s 10 of the Act. 11 In determining an application to make a new award to replace an existing award, the applicable test, pursuant to s 10 of the Act, is whether the award to be made will set fair and reasonable conditions of employment for employees: Re Club Employees (State) Award [2002] NSWIRComm 362; (2002) 122 IR 272 at [102]. 12 The presumption is that the existing award, covering the same field, already sets fair and reasonable conditions of employment for employees because it was made in conformity with the obligations imposed upon the Commission under s 10 of the Act: Re Pastoral Industry Award [2001] NSWIRComm 27; (2001) 104 IR 168 at [14]. 13 However, that presumption is rebuttable where an applicant for different terms can demonstrate, on the evidence, that the existing award does not provide fair and reasonable conditions of employment: Re Storeworkers - IGA Distribution Pty Ltd New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156; (2002) 124 IR 1 at [42]. 14 Factors constituting a proper basis for the rebuttal of the presumption will include whether the conditions in the current award are no longer fair and reasonable having regard to changed circumstances, including changes in the respective positions or conduct of the parties; developments in a business, industry or the economy generally, and where changes have occurred in the factors which underpinned the conditions found in the current award, the subject of review: IGA Distribution at [44]. 15 The application must meet the threshold requirements of the principles promulgated in the State Wage Case 2010. Where a claim results in arbitral proceedings for changes in conditions of employment which exceed those allowed elsewhere in the principles (see, for example, Principle 2), the applicant will need to satisfy the Arbitrated Case Principle: see State Wage Case 2010 at [230]. In particular, the applicant may need to satisfy the special case component of that principle which is in the following terms: 8.4 Special Case Considerations 8.4.1 A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2011) 113 IR 384 and the cases referred to therein at [165]-[168]. 8.2.4 All special cases shall be tested against the public interest. 16 The requirements of the Special Case Principle will be met where the applicant for a proposed award or particular provisions within it persuades the Commission that the application satisfies a dual test: that the provision or provisions of the award sought constitute fair and reasonable conditions of employment and that the matter in question has special attributes or is 'out of the ordinary' so as to take the matter outside the restrictions which otherwise apply under the principles: Social and Community Services Employees (State) Award [2001] NSWIRComm 247 at [24]; Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [166]; IGA Distribution at [45]. 17 The onus lies on a party arguing for a special case to persuade the Commission that the terms it seeks should be made: Re Pastoral Industry at [77] and Club Employees at [102]. The evidentiary requirement to establish a special case is, however, no more strict than in an ordinary matter, except that the applicant for a special case will need to establish an adequate evidentiary foundation for the factors which are relied upon as demonstrating special case attributes: Operational Ambulance Officers at [168]; Pastoral Industry Award at [73] and [74]. 1. The Commission must have regard to public interest. The copy of the Award tendered by the Union as part of Mr Connell's evidence was made on 21 May 2013 with effect on and from 1 January 2013 and a nominal expiry date of 31 December 2013. Whether or not that Award has been updated and replaced was not canvassed in proceedings. However, notwithstanding those circumstances, the Commission would need to be satisfied that the provisions of s 17 of the Act, particularly the provisions under s 17(3)(c) and (d) were met where an application is made to vary an award during or after its nominal term: 17 Variation or rescission of award 1. The Commission may vary or rescind an award. … 1. (3) An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. 1. Section 17(3) of the Act requires the Commission to consider two conditions where an application to vary an award is made during its nominal term in the absence of mutual consent. The variation sought must not be contrary to the public interest and there must also be a substantial reason to do so. In circumstances where the application is made after the nominal term of the award, the terms sought must not be contrary to the public interest. 2. The primary purpose of s 17 of the Act is to limit the circumstances where an award may be varied. 3. The Union has not argued public interest and to the extent that it may consider flexible working hours arrangements may somehow invoke the public interest would, in my view, be plainly insufficient for the Commission to exercise its statutory functions and responsibilities as required by s 17(3)(c) and (d) and s 146(2) of the Act. 4. Section 136(1)(c) deals with the kinds of dispute orders that may be made under ss 137 – 139 of the Act. Those provisions relate to the Commission making dispute orders when dealing with an industrial despite in arbitration proceedings. Such orders are restricted to requiring a person to cease or refrain from taking industrial action or imposing a secondary boycott, requiring an employer to reinstate or re-employ one or more employees who were dismissed in the course of industrial dispute or whose dismissal resulted in the industrial dispute. An employee dismissed in the course of industrial dispute. Such orders are not relevant to these proceedings. In other words, s 136(1)(c) is directly referable to s 137 and the limitations contained therein. 5. It would appear that the Union considers s 136(1)(d) provides a power to make an order without reference to any other basis of power for the making of an order under the Act. The making of an interim award is discretionary. The relevant principles concerning the making of an interim award were set out in Sydney Water Corporation v Australian Services Union (NSW & ACT Branch) (2005) 146 IR 388 at [38]-[48]. Moreover, the principles governing the making of interim awards require 'special circumstances': Re Crown Employees (Public Sector - Salaries 2011) Award (No 3) (2011) 210 IR 458 at [47]-[50]. 6. No express power upon which such an order under s 136(1)(d) could be made was identified by the Union. Being facilitative, s 136(1)(d) does not in itself contain a basis for making an order. Rather, it merely permits, in the context of an industrial dispute, the Commission to make any order that the Commission is authorised to make. Orders that the Commission may make pursuant to, s 136(1)(d) include an order for the reinstatement of a dismissed employee (s 94), an order for a secret ballot (s 172) and an order for costs (s 181(2). 7. In Police Association v NSW Police (No 3) [2005] NSWIRComm 243 it was held by Boland J at [59]: But is an order reinstating or re-employing an employee, the making of which relies on the vehicle provided by s 136(1)(d), an order under Pt 6 of Ch 2 or an order under s 136(1)(d). I take the view that an order referred to under s 136(1)(d) would be an order made pursuant to the relevant express power. So that if the Commission, pursuant to s 136(1)(d), was to make an order for the conduct of a secret ballot, the order would be an order under s 172 of the Act. Section 136(1)(d) is merely facilitative; it directs the Commission to the relevant express power in the statute under which the order may be made. Similarly, in arbitration proceedings, any order reinstating an employee (other than a dispute order under Pt 2 of Ch 3) would be an order under s 89 of the Act or, in other words, a "decision of the Commission under Part 6 of Chapter 2. 1. Interim relief provided under s 136(1)(d) is relief which is granted pending the final determination of the proceedings, but without deciding in advance or affecting the final determination of the matter. On the material submitted by the Union, it would appear that the relief sought in these proceedings would, if granted, render final relief. That is not 'interim' within the compass of s 16(4) of the Act or within the meaning of that term as it is set out in Sydney Water. Accordingly, interim relief is not applicable to these proceedings. 2. Contrary to the contentions of the Union, the form of the orders sought do not fall within the scope of s 136(1)(b), (c) or (d) of the Act. I have considered the alternative remedy sought that the Commission make recommendation or a direction pursuant to s 136(1)(b). For the reasons set out below, I have determined that it would be inappropriate to make such a recommendation or direction. 3. There is no doubt in my mind that Respondent seeks to realign the Zammits' hours of work in order to improve the operational efficiency of the Engineering Department and reduce costs by working smarter and improving the organisation of work through improved supervision. There is no issue whatsoever concerning the quality of their work. The local health district board has a statutory responsibility to manage the operations of the Respondent efficiently and manage its budget "to ensure performance targets are met". 4. The Union contended that the Policy Directive was inconsistent with the principles contained in the Anti-Discrimination Act on the grounds that the Policy Directive only permits flexible work hours to be granted to employees with carer's responsibilities if a positive benefit to the employer can be demonstrated. 5. The Union also contended that the Anti-Discrimination Act does not permit an employer to refuse to make arrangements to enable a person with carer's responsibilities to undertake the inherent requirements of the job unless a positive benefit to the employer can be demonstrated by the employee. It considers the Respondent should not be allowed to hide behind a policy which is inconsistent with anti-discrimination principles. 6. Accordingly, it was the Union's case that s 49V (4) of the Anti-Discrimination Act required the Respondent: to refrain from discriminating against employees with carer's responsibilities on the basis of those carers responsibilities, and only excuses the Respondent from such discrimination if the arrangements required of Respondent to enable the employees to perform the inherent requirements of the job would impose "unjustifiable hardship" on the employer. 1. Section 169 of the Act requires the Commission to take into account the principles contained in the Anti-Discrimination Act in the exercise of its functions. In Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37 at [71], the Full Bench observed: Section 169 has been held to impose a mandatory obligation to take into account the principles in the Anti-Discrimination Act but not to dictate any particular outcome or result: New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 at [8]. Upon that provision, the principles of the Anti-Discrimination Act are to be treated as a fundamental consideration in the decision-making process: Re Nursing Homes, & Nurses' (State) Award and Others Awards [2001] NSWIRComm 298 ('Nursing Homes and Nurses' Award'). It is the 'principles' of the Anti-Discrimination Act that are to be taken into account under s 169(1). Given that Act does not contain any provisions which are in terms described as its principles, nor is the word 'principles' a term commonly used in law to refer to the provisions of a statute or any particular part of a statute, the use of the word in s 169(1) seems directed at picking up the foundational concepts of the Anti-Discrimination Act, that is both the express provisions of the Act and the broader conceptual framework: Nursing Homes and Nurses' Award. I agree with the observations of the Full Bench. 1. The Union submitted that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference should be drawn by the Commission in respect of the Respondent's failure to call Mr Loy, Ms Luci Caswell and Ms Clark to give evidence on the grounds that their testimony would contradict the Respondent's case. 2. The majority of pertinent facts of the matter were set out in the extensive materials tendered by the parties in evidence and the authenticity of that material was not in dispute. 3. In civil proceedings, the rule in Jones v Dunkel is that an inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. That inference is that the evidence, if adduced, would not have assisted the party's case. The rule is expressed in the following way by Odgers in Uniform Evidence Law, 7th edition, Law Book Co, 2006 at page 176: ... while it may (depending on all the circumstances) be appropriate to conclude that evidence already adduced by an opponent which might have been contradicted by the uncalled evidence may be more readily accepted, and inferences open on the opponent's evidence more readily drawn, the failure cannot fill an evidentiary gap in the opponent's case. 1. The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that a witness was not called. There must be a basis elsewhere in evidence to support that inference. In the circumstances of the present case, it was not unreasonable for the Respondent not to call Mr Loy, Ms Caswell and Ms Clark. The Union's contentions that they held a view contrary to that of the Respondent was not challenged. 2. Moreover, there is no Jones v Dunkel inference available because there was no unexplained failure to call Mr Loy, Ms Caswell and Ms Clark. The Respondent's witnesses were senior representatives of management vested with the responsibility of decision making. They gave direct evidence about the requirement s to improve operational efficiency as part of the "Whole of Hospital" approach, which included standardising the working hours of Engineering Department staff. In any event, had the Union considered their evidence pivotal to these proceedings, it could have subpoenaed them. 3. The Respondent has argued that the Commission should not intervene in this matter unless it considers its actions in seeking to realign the work hours of the Zammits imposes an unfair or unreasonable demand on them. 4. As a general proposition in cases involving issues related to the exercise of management prerogative, the Commission will examine all the facts and will not interfere with the right of an employer to manage, unless the employer is seeking something unreasonable or unlawful from employees. 5. In determining this matter, I have considered the business case for the proposed change and whether the reasons advanced by the Respondent are in fact reasonable. That consideration has included an assessment of the impact on Respondent's operations in the event the change sought is rejected. I have also considered the Union's case opposing the changes sought and whether those reasons advanced against the change sought are reasonable. I have also given consideration to the impact of the proposed change on the Zammits should I determine that the Union's case must fail. 6. The authorities concerning management prerogative were extensively canvassed by the parties in final submissions. 7. In Notification under Section 130 by the Ambulance Service of New South Wales of a dispute with Health Services Union re-threatened industrial action in Inner Hunter Area the Commission as presently constituted observed at [179]: This case must necessarily be decided by reference to the notion of management prerogative. In consideration of the authorities raised in these proceedings, it is well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, unless the work asked to be performed by the employees is unjust or unreasonable. 1. The overwhelming principle involved in this matter is the long established right of management to allocate and arrange work and for employees to respond to reasonable management requirements and directions. 2. Having considered all the material and submissions put by the parties in this matter, I have determined that the Union has not been able to establish, on a proper evidentiary basis, that the hours of work proposed by the Respondent as part of the "Whole of Hospital" approach initiated to improve operational efficiency and reduce a substantial financial deficit, will result in its members being required to perform work which is unfair, unjust or unreasonable. 3. Moreover, it must follow that a system of standardised hours within the Engineering Department will provide more time for managers to manage maintenance works and the efficiencies obtained can be directed towards improved patient and clinical care. Orders 1. The Union's application in IRC 2015/377318 is dismissed. 2. Mr Cameron Zammit and Mr Craig Zammit hours of work shall be 7 am to 3.30 pm commencing on and from Monday, 9 January 2017. JD Stanton 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: 09 December 2016