Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Salaried Medical Officers' Federation (New South Wales) v Hunter New England Local Health District [2018] NSWIRComm 1050 Decision date: 23 August 2018 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: Recommendation made Catchwords: INDUSTRIAL DISPUTE – Emergency Department Staff Specialists - payment for public holidays – Award silent – unilateral removal of long standing non-Award benefit – Direction sought-Recommendation made Legislation Cited: Industrial Relations Act 1996 Fair Work Act 2009 Public Holidays Act 2010 Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Harrison v Melhem (2008) 72 NSWLR 67 Health Services Union v Director-General, Department of Health (2010) 193 IR 359 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 4 Re Corrections Health Service Nurses' Award (1999) 90 IR 235 Re Staff Specialists' (State) Award [2006] NSWIRComm 124 State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] 247 IR 129 Category: Principal judgment Parties: Australian Salaried Medical Officers' Federation (New South Wales (notifier) Hunter New England Local Health District (respondent) Representation: Counsel: Mr J Nolan of counsel (notifier) Mr M Seck of counsel (respondent) Solicitors: Sparke Helmore Lawyers (respondent) File Number(s): 2016/00292607 DECISION 1. This matter concerns a dispute notification filed by Australian Salaried Medical Officers' Federation (New South Wales) (ASMOF) pursuant to s130 of the Industrial Relations Act 1996 (the Act) concerning Staff Specialists contracted to work in the Emergency Department (the ED) of John Hunter Hospital (the Hospital) in Newcastle. The Hospital is part of the Hunter New England Local Health District (the LHD). The relevant award is the Staff Specialists' (State) Award (the Award). The question, dispute or difficulty concerned the following industrial matters: The Staff Specialists' (State) Award does not contain a clause specifically dealing with Public Holidays; The Award provides at clause 4, Normal Duties: Part A General at clause (d) (iii) for a penalty to be paid to Staff Specialists who are rostered to work on Public Holidays; The Emergency Department at John Hunter Hospital has without controversy until recently arranged rosters to ensure appropriate Staff Specialist cover of the Department, while attempting to ensure that they are not disadvantaged when considering their Career Medical Officer, Medical Officer, Nursing, Allied Health and support staff colleagues; Hunter New England Local Health District has advised of its intention to implement the variation to long standing practice; and Discussions between the parties consistent with Clause 3, Issue Resolution of the Staff Specialists' (State) Award have not resulted in a resolution of this matter. 1. Conciliation before the Commission failed to resolve the dispute. 2. Shift work provisions were inserted into the Award as part of a package of consent variations determined in 2006 by the Full Bench in Re Staff Specialists' (State) Award [2006] NSWIRComm 124. 3. The Award provides for a penalty to be paid when a Staff Specialist is rostered to work on a public holiday. However, the Award does not contain a separate public holiday provision. 4. ASMOF contends the Hospital's practice since 2006 has been that where a public holiday falls on an ED Staff Specialist's normal work day, that staff specialist is not usually required to work and is paid his or her ordinary salary for that day. Historically, the Hospital has recognised roster work patterns and in circumstances where ED Staff Specialists are not rostered to work on a particular public holiday, they have been paid for that public holiday day. That practice has ceased. 5. The LHD contends that ED Staff Specialists have been incorrectly receiving payment for public holidays when they have not been rostered on to work that particular day. That position was set out in correspondence sent to Dr Fiona Downes dated 8 August 2016 from Ms Julie Tait, Service Manager, Critical Care Services, both witnesses in these proceedings: Recently it has come to the attention of management that Staff Specialists within the Emergency Department have been receiving payment for public holidays when not rostered on for that day. In reviewing this practice, it has been found that payment of the public holiday when not rostered is not within the Staff Specialists (State) Award. Whilst I am aware that many other Awards do have provisions supporting payment when rostered off, the Staff Specialists Award does not contain any such provisions. Payment to date has been in error and is considered an out of Award payment. Hunter New England Health and the Ministry of Health do not support payment outside the Award provisions and specifically payment to Staff Specialists when rostered off on a public holiday. As such from the next public holiday payment will only occur for Specialists who are rostered to work and attend work or take approved leave. 1. ASMOF seeks that the Commission makes a direction under s136 (1) (a) of the Act that the Hospital reinstate the practice to pay ED Staff Specialists for public holidays when they are not rostered to work on those days. 2. Section s136 of the Act relevantly provides: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, … 1. ED Staff Specialists work in accordance with a template roster developed by the Critical Care Services team in consultation with them. Full and part-time Staff Specialists are contracted to work 40 and 20 hours per week respectively. 2. Full-time ED Staff Specialists are rostered to work four 10 hour shifts. Part-time Staff Specialists are rostered to work 20 hours per week over two 10 hour shifts. Historically, the roster has sought to provide an equitable distribution of Public Holidays to be worked or "rostered off". 3. Staff Specialists are involved in the preparation of the roster prior to its final approval: 1. A template roster form is first completed entering the days on which the Staff Specialists have been approved to take annual leave, Training, Education and Study Leave and days on which Staff Specialists are otherwise to work at John Hunter; 2. The template roster is subsequently placed on the ED notice board where Staff Specialists manually nominate their shift preferences for the relevant roster period; 3. When roster preferences are completed, vacant clinical shifts are identified and subsequently allocated to ED Staff Specialists who have not been allocated their contracted number of clinical shifts based on their nominations; and 4. The draft roster is reviewed and where necessary, amended by Dr Andrew Stearman, Senior Staff Specialist so as to ensure there is an appropriate mix of skills and experience on each shift prior to final approval by Dr Dragan Petkovic, Emergency Department Director. Evidence ASMOF Dr Fiona Downes 1. Dr Downes is an ED Staff Specialist and has worked for the LHD as an emergency physician since January 2008. As an emergency physician, she works on a rotating roster which provides coverage over 365 days per year. The roster is set so as to provide an equitable distribution of public holidays to be worked or rostered off. 2. Dr Downes stated the Award provides for a penalty to be paid when a Staff Specialist is rostered to work on a public holiday that falls Monday to Friday. However, the Award is silent in circumstances where a public holiday falls Monday to Friday on a day that the Staff Specialist is not rostered to work. 3. Dr Downes explained that it was her understanding that since the shift work provisions were inserted into the Award, ED Staff Specialists employed by the Hospital had been paid for the public holidays that fall Monday to Friday on a day that the Staff Specialist is not rostered to work. However, public holidays which fall on a weekend are only paid in circumstances where the Staff Specialist is rostered to work. 4. On about 8 August 2016, Dr Downes received correspondence from the LHD, set out in paragraph 6 above, stating the LHD proposed to stop the then prevailing practice to pay a Staff Specialist ordinary pay for a public holiday that falls on a day that he or she "is not rostered to work what is their normal working day". 5. Dr Downes observed that her discussions with Fellows of the Australian College of Emergency Medicine (FACEM) had confirmed that the past practice of the Hospital was consistent with what occurs in other Emergency Departments in NSW. 6. In cross-examination, Dr Downes confirmed that she worked on a seven day rotating roster unless she was required to work on a weekend. She primarily "worked the same days" each week, Tuesday Thursday and Friday. 7. In relation to her performance agreement dated 23 August 2016 with the LHD, Dr Downes stated her substantive position with the LHD was assessed at 0.75 FTE. 8. Dr Downes explained that the Emergency Department template roster was placed on a noticeboard within the Department. It was also sent to Staff Specialists by email. Dr Downes agreed with the following proposition: … a template roster placed on the notice board which already fills in the annual leave days and the training, education and study leave days which emergency department staff specialists wish to work, and then there are gaps there where staff specialists manually entered their preferred days of work for the next roster period .. The template roster would subsequently be populated by Staff Specialists manually nominating the preferred days that he or she wished to work. Rosters were finalised at least a month in advance. The roster must meet the clinical cover requirements and accordingly, there are occasions when a Staff Specialist is unable to work on his or her preferred dates. 1. Dr Downes confirmed that roster preferences can be raised with the Senior Staff Specialist, Dr Stearman who is responsible for reviewing the roster and where necessary, seek change so as to ensure that shifts are distributed on a fair and equitable basis that meets the operational requirements of the Emergency Department. The Director of the Emergency Department, Dr Dragon Petkovic, gives "final approval" to the proposed roster prior to its implementation. Dr Mark Lee 1. Dr Lee is a Senior Staff Specialist and has worked as an Emergency Physician at the Hospital since 1996. He was the ED Director between 2009 and 2014. Dr Lee works a rotating roster as outlined above by Dr Downes. Dr Lee also stressed the fact that the Award is silent with respect to public holidays. 2. Dr Lee confirmed that he worked the equivalent of 0.5 FTE and normally worked on a Monday and Tuesday with some weekend and on-call work to meet the operational requirements of the Emergency Department. 3. Dr Lee stated that from time to time he had been responsible for preparing the ED roster which was arranged to provide a flexible distribution of public holidays to be worked and rostered off by emergency physicians. 4. It was Dr Lee's evidence that the Hospital's ED had adopted "the usual practice" of other emergency departments, particular those in Teaching Hospitals, to pay Staff Specialists their ordinary pay where a public holiday falls on a day that he or she "isn't rostered to work or required to work on that day…" 5. In or around August 2016, Dr Lee contacted FACEM to establish whether the past practice of the Hospital to pay Staff Specialists in circumstances where they are not rostered to work or required to work on that particular public holiday was common practice across the State. The results of those enquiries confirmed that it was. Dr Lee's tabulated results were set out in Attachment "A" to his statement. 6. In cross-examination, Dr Lee confirmed that emergency physicians engaged by the LHD work in accordance with the shift roster "generally…(work) Monday to Friday, with weekend coverage on top of that". In his experience, rosters were prepared consistent with the roster provisions of the Award. Dr Lee agreed with the following proposition concerning the preparation of rosters: There is a template roster which is placed on the notice board with people's names and days and hours for the upcoming roster and the Staff Specialists express a preference for the days they wish to work that next roster period … 1. Dr Lee subsequently confirmed the roster was prepared to meet the "service provisions" which at times overrode the preferences submitted by Staff Specialists. The Emergency Department operated a day shift from 8.00 am to 6.00 pm and an evening shift from 2.00 pm to 12 midnight. 2. Dr Lee's stated that emergency physicians were required to exercise a degree of flexibility so that shifts occurring Monday to Friday and over the weekend were filled consistent with the service provisions requirements of the Emergency Department. 3. Dr Lee was referred to a number of dates set out in various rosters where a public holiday fell. In the case of a particular Easter Monday, Dr Lee agreed with the proposition that he was paid for that particular public holiday: Q. You have got two crosses there on the Saturday and Sunday which I am assuming means you are not working but you are not being paid a public holiday on those days? A. That's correct, yes. Q. Then go over the page. You are paid a public holiday on the Monday, but you are not designated to work on the Monday even though that forms part of your normal roster pattern? A. That's correct. Q. You elected to take a day off on that day, is that correct? A. Well public holidays would be considered like weekends as onerous shifts so it would be an agreement of how many people would be working on the public holiday so, yes, so I didn't work that one … 1. Dr Lee confirmed that with respect to the Anzac Day and the Labour Day public holidays which, fell on a Tuesday and Monday respectively, he had elected to observe those public holidays and not receive payment for them: Q. If you go to the next page which is 25 April. This is Anzac Day? A. Yes. Q. Again, even though that is your usual rostered day ordinarily you have elected to take public holiday again for that day or you have been rostered to take a public holiday, so you can see the payment for that day, then you take a period of annual leave during that, around early May? A. Yes, the Monday, Tuesday, that's correct. Q. Then go to the following roster period. You will see on 13 June, which is the Queen's Holiday, it is marked in green but it is not designated as a paid day for you even with a PH, do you see that, that reflects your recollection? A. Yes, I think so, yeah. Q. Then I suggest there is no public holidays until the Labour Day weekend in October. Again that falls on a Monday. Even though that is ordinarily a public holiday it is marked as green but it doesn't identify that you have been paid for that day as a public holiday. Do you see that? A. Yes. Q. That reflects your recollection as well? A. Yes ‑ I can't remember but if it says it on there I believe it so … 1. Dr Lee agreed that with respect to the Christmas/New Year period, emergency physicians normally agree amongst themselves concerning the arrangements required to cover day and evening shifts during that period: Q. Then on the public holiday on the Sunday which probably leads to another public holiday being shifted to a Monday, if you go over the page, so Monday, the 2nd has got a cross there. You don't get paid for the public holiday even though the public holiday falls on a normal roster day, that's correct, that reflects your recollection? A. Yes, as far as being in a roster ‑ I can't actually remember what I got paid. The ‑ I would say if I can that the Christmas/New Year period is a separate set of agreements that we agreed to to cover that onerous period of a lot of leave so the rules are slightly different in terms of what we agreed to in terms of covering. Q. Those rules are usually worked out between the emergency physicians themselves to ensure everyone bears equitably working on public holidays and it doesn't fall disproportionately on some doctors and not other doctors? A. Correct, so we try and share the burden across everyone, yes. 1. In relation to paragraph 8 this statement: The emergency department at John Hunter has adopted the usual practice adopted by emergency departments particularly those in teaching hospitals. That practice where a public holiday falls on a day which is a usual day of work for an emergency physician who isn't rostered for work or required to work on that day that the day is paid at the ordinary salary for the day. the following exchange ensued: Do you agree that when we have gone through the rosters here that there are days like Mondays where it is notionally a public holiday but you haven't actually received a payment for that public holiday? A. On some of those. Q. Yes, some of those dates. A. I would have to check how many and the circumstances why it hasn't happened. That would be an unusual practice but ‑ that is not a normal ‑ there would be some that I have not been paid for but I wouldn't‑‑ 1. In relation to Annexure A which set out the results of a survey concerning shift arrangements and public holiday payments applicable within a number a large emergency departments throughout New South Wales, the following exchange ensued: Q. You have gone away as well and undertaken for want of a better expression a survey of other emergency departments throughout the State to determine what their practices are for emergency physicians who are not rostered to work on a particular public holiday and whether or not they get paid for that day, that is reflected in the annexure to your statement, that's right? A. Yes, I was asked by my colleagues because we wanted to know what the state of play was I guess ‑ are we being unrealistic in what we are asking for so I just ‑ my colleagues in John Hunter asked me through my contacts of previous directors and people just to ask some people what the current state of play was in other hospitals so that is why I did that. Q. Did you do it by way of email? A. Yes, I did. Q. And the responses you received were recorded in the table which is attached? A. That's right. Q. They didn't give you the rosters themselves they just gave you like an overall snapshot of like what occurs in a general state, is that correct? A. Correct. Some of the details ‑ some were quite detailed responses but overall I didn't include the details but, yes. Q. What you have endeavoured to do is to provide to the best of your ability an accurate summary of what the situation is at various Local Health Districts throughout New South Wales? A. That's correct, yes. 1. In relation to Annexure A, Dr Lee acknowledged his colleagues working in the various emergency departments surveyed did not provide him with a copy of their rosters. However, despite that deficiency, Dr Lee considered the tabulated results set out in Annexure A provided an accurate statement of what occurs in those Emergency Departments when a public holiday falls. The following exchange ensued: Q. You agree that there is some variability between each of the Local Health Districts as to what happens? A. I think there is some minor variability but the essential ingredient is that ‑ the public holiday. Q. Just looking at it would you agree with me it depends on whether or not someone in fact is usually rostered on that particular day so it seems to me it is based on you don't get it if you are not usually rostered on that particular day? A. Look I would have to read it again because I haven't read it in a while but I believe so, I think that would be right 1. Dr Lee agreed "there was some variance between the various hospitals and Local Health Districts as to how they treated part-time Staff Specialists in terms of public holidays": Q. Would you accept there is some ambiguity as what is meant by usually rostered then in the response that you received? A. Yes, I think the gist of it was that most people if they don't work the public holiday would get paid the public holiday. Q. When you say the gist of it you have tried to record the gist of it here, and because it is a high level summaries it is hard to know what they really mean by the expression "usually rostered" right? A. Yes. Q. It could mean that they are rostered on particular days or it could mean that they are specifically designated to work on a public holiday so they receive a payment, and it is not clear, would you agree, what that means? A. I think ‑ well I think so, I think a lot of people ‑ I mean this is not fully borne out in the summary here but I think a lot of the hospitals were saying that essentially they would pay pro rata their public holiday staff. So even though, you know, you would pro rata your public holiday allowance so I would be expected to be paid for Monday but I wouldn't be expected to be paid for Friday for my circumstance, say for instance. Dr Tony Sara 1. Dr Sara's statement was tendered without objection. He was not required for cross-examination. 2. Dr Sara is the President ASMOF NSW. He is also a State Councillor. In those capacities, Dr Sara has been directly involved in consultation and negotiations with NSW Health concerning industrial, operational and clinical matters that have the capacity to impact upon ASMOF members. 3. As President and State Councillor of ASMOF, Dr Sara was directly involved in the circa 2006 negotiations and subsequent proceedings before the Full Bench which resulted in shift work provisions being inserted into the award by consent: Re Staff Specialists' (State) Award. Dr Sara observed the new Award contained shift arrangements for emergency physicians for the first time. Those provisions provide for a rotating roster as outlined above by Dr Downes 4. The Award does not contain a separate public holiday clause as is the case for most State awards. However, the consent variation did contain a penalty to be paid to an emergency physician "who was rostered on and required to work a Public Holiday". 5. In relation to circumstances where an ED Staff Specialist is rostered to work on a day which is a public holiday, but not required to work on that day, it was Dr Sara's evidence that the long-standing policy and practice had been that an emergency physician was "paid his or her ordinary salary for the day". 6. Moreover, it was not uncommon on a public holiday for Staff Specialists involved in intensive care, general surgery, anaesthesia, obstetrics and gynaecology to attend the Hospital or be placed on call. In those circumstances, Staff Specialists do not receive a penalty payment for attending work. 7. Dr Sara stated that following the Re Staff Specialists' (State) Award case, there were further negotiations and proceedings before the Commission chaired by Justice Boland concerning a number of "Medical Workforce issues in Emergency Medicine" which ultimately led to additional remuneration being granted to emergency physician Staff Specialists in the form of the "ED Allowance" or the "Special Services Allowance". To qualify for these allowances, it is mandatory for an emergency physician to participate on the shift roster. 8. Dr Sara was unaware of any emergency physician appointed since the 2006 Re Staff Specialists' (State) Award consent variations who was not required to participate on the ED shift roster: As emergency physicians have a rotating roster, the usual practice has been when Public Holidays fall to recognise the roster pattern for individual Emergency Physicians, and if a Public Holiday fell on what is ordinarily a working day for that Specialist, and he or she is not rostered on duty for that day, or is not required for duty on that day, then they are paid for the day. Dr Anthony Joseph 1. Dr Joseph statement was tendered without objection. He was not required for cross-examination. 2. Dr Joseph is a Senior Staff Specialist in the Emergency Department and Director of Trauma at Royal North Shore Hospital. He is also a State Council member of ASMOF. 3. Dr Joseph was directly involved in the negotiations between ASMOF and the Ministry of Health which ultimately resulted in the decision of the Full Bench in the Re Staff Specialists' (State) Award case. During the course of those negotiations, Justice Boland made a number of recommendations: 1. Emergency physicians should receive a 25% recent annual salary in the form of an "ED Special Service Allowance"; 2. The ED Special Service Allowance was to be paid bi-annually subject to certain conditions being met in the areas of quality improvement, teaching and education and assisting the relevant hospital to meet certain Emergency Department performance targets; and 3. Emergency physicians would be paid penalty rates for out of hours rostered duties, including evenings, weekends and public holidays in line with other NSW Health workers. 1. Dr Joseph stated emergency physicians met the requirements for payment of the Service Allowance which had been "rolled over" in subsequent award negotiations. 2. Dr Joseph was adamant that at no time had discussions with the Ministry of Health dealt with "any alteration to the current public holiday remuneration if it fell on a "normal" working day and the emergency physician was not rostered on duty. There has been no discussion with the Ministry concerning any change in the current practice: It is the current practice for all NSW Health employees that a Public Holiday would be paid as a "normal" rostered day if the emergency physician was not rostered to work that day and penalty rates would be paid if the Emergency Physician was rostered to work on the public holiday. Local Health District Ms Julie Tait 1. Ms Tait's statement was tendered without objection. She was not required for cross-examination. 2. Ms Tait is the LHD's Service Manager – Critical Care Services. Prior to that position, she was Service Manager – Emergency Department and has worked in a range of nursing and management positions for more than 25 years. Part of Ms Tait's current function involves managing the Emergency Department's budget. Background to the dispute 1. On 26 May 2016, Mr Bob Morgan wrote to the LHD on behalf of ASMOF: As discussed on Tuesday, below is an email received by emergency physicians at JHH. I am advised that JHH has always paid public holidays if it is a rostered day off for at least the last 10 years, which is consistent with the approach taken in virtually all Awards which cover Shift Workers such as the CMO award (clause 13 (ii)) and the Medical Officers' Award (clause 15 (Iii)) which essentially provide that Shift workers rostered off duty on a public holiday shall either be paid one day's pay in addition to the weekly rate; or if the employee so elects, have one day added to his/her period of annual leave. I confirm my telephone request that the status quo be observed while this matter is discussed. 1. Shortly thereafter, the General Manager met with Ms Tait and senior human resource management representatives to consider the matter. Ms Angela Bryant, a Senior Human Resources Consultant for the LHD advised the NSW Ministry of Health "was of the view (there) was no requirement to pay the ED Staff Specialists for public holidays when the ED Staff Specialist was not required to work under the Award". 2. The matters relevant to the dispute concerning public holiday payments were raised at the Hospital's Critical Care Financial Accountability Meeting in June 2016 where it was determined that payments being made to ED Staff Specialists "not rostered on public holidays were made in error, were over Award payments and should cease. 3. Ms Tait deposed that on 8 August 2016, correspondence was sent to all Emergency Department Staff Specialists advising them that the LHD had been incorrectly making payments to them at the Hospital for public holidays they were not rostered to work and from that date, only those Staff Specialists rostered to attend work and did so be paid the public holiday: Re: Payment of Public Holidays Recently it has come to the attention of management that Staff Specialists within the Emergency Department have been receiving payment for public holidays when not rostered on for that day. In reviewing this practice, it has been found that payment of the public holiday when not rostered is not within the Staff Specialist (State) Award. Whilst I am aware that many other Awards do have provisions of putting payment when rostered off, the Staff Specialists Award does not contain any such provisions. Payment to date has been in error and is considered an out of Award payment. Hunter New England Health and the Ministry of Health do not support payment outside the Award provisions and specifically payment to Staff Specialists when rostered off on a public holiday. As such from the next public holiday payment will only occur for staff specialists rostered to work and attend work or take approved leave. 1. In correspondence dated 12 August 2016, ASMOF wrote to the LHD in the following terms: Public Holidays-Emergency Physicians The Staff Specialists' (State) Award (the Award) does not have a specific Public Holidays clause, although there is a direct reference to payment when an Emergency Physician's shift falls on a Public Holiday (clause 4, Part A (D) (iii)). ASMOF is advised by our Members that Emergency Physicians at John Hunter Hospital have always been paid if a rostered day off falls on a Public holiday for at least the last 10 years. This established practice is consistent with the approach taken in virtually all Awards which cover Shift Workers such as the CMO award (clause 13 (ii)) and the Medical Officers' Award (clause 15 (Iii)) which essentially provide that Shift workers rostered off duty on a public holiday shall either be paid one day's pay in addition to the weekly rate; or if the employee so elects, have one day added to his/her period of annual leave. Notwithstanding ASMOF's request by email on 26 May 4 the status quo to be observed, Emergency Positions were advised by letter from Julie Tait, Service Manager, Critical Care Services on 9 August the practice was to be unilaterally discontinued. Consistent with clause 3(h), Issues Resolution of the Award ASMOF confirms our earlier request that the status quo be observed and that discussions take place consistent with the issues resolution provisions of the Award to resolve this matter. 1. The LHD considers Staff Specialists who are paid for a public holiday on a day they are not rostered to work 'are not actually working their contracted hours but still being paid for it". 2. Ms Tait contended Staff Specialists not required to work on public holidays would not lose any remuneration because they would be rostered to work on other days. 3. During the course of a dispute committee meeting with ASMOF on or about 22 August 2016, Ms Tait recalled the following conversation with Dr Stearman: Stearman: Why are you changing public holiday payments? Tait: The payments are inconsistent with Award. We could use the funds for actual patient care with the rostered doctors working clinically and seeing patients. Stearman: But you won't save any money. Tait: It's about loss of the clinical shift in the period. On Anzac Day only four Staff Specialists worked but another 10 were paid. For each Staff Specialist that was paid but didn't work a shift was lost. Stearman: This is an extreme example. Tait: From our review there are many public holidays where large numbers of Staff Specialists were paid and not working. 1. The Emergency Department's rosters are developed by the Critical Care Services team in consultation with Staff Specialists so as to: 1. meet organisational and patient needs from both clinical and non-clinical perspectives ensuring appropriate staff coverage consistent with clinical service requirements; and 2. effectively allocate the Hospital's financial staff and resources to ensure the LHD does not incur any unnecessary costs and operates within its budget. 1. Consistent with the Award provisions, the days on which a Staff Specialist generally performs his or her normal hours of work are recorded in the relevant Performance Agreement. Staff Specialists contract to work 40 hours per week generally over four 10 hour shifts. Those Staff Specialists who do not work full-time hours are contracted to work a pro rata FTE equivalent. 2. The clinical needs of the Emergency Department requires two Staff Specialists to work clinical shifts on day shift and two on evening shift, Monday to Friday. 3. Ms Tait deposed that 75% of the hours worked by Staff Specialists were allocated to "clinical time" meaning time spent seeing and treating patients in the Emergency Department. Accordingly, Staff Specialists were "generally rostered to work three separate 10 hour clinical shifts per week". The remaining 25% of hours worked was allocated to a "non-clinical" shift devoted to research, case review, policy development and administration. Roster build process 1. Ms Tait stated the following steps were undertaken during what is known as the "roster build" process: 1. The administration officer partly populates the template roster form by entering approved annual leave, training, education and study leave, and nominated "unavailability" for Staff Specialists; 2. The template roster is placed on the Emergency Department's notice board to enable Staff Specialists to enter their preferred shifts for both clinical and non-clinical time; 3. The template roster is subsequently checked by the administration officer to identify vacant clinical shifts in circumstances where less than two staff specialists have nominated to work on a specific day or evening shift so as to meet the clinical requirements of the Emergency Department; 4. Vacant clinical shifts subsequently allocated to Staff Specialists who "have not already nominated and been allocated there could contracted amount of clinical shifts"; 5. For the purposes of building the roster, Dr Stearman, the Emergency Department Senior Staff Specialist, also nominates the preferred working times and availability of other Department Staff Specialists. At this stage, the roster is approximately 80% complete; 6. The draft template roster is subsequently emailed to Dr Stearman for review. Dr Stearman reviews the draft roster and makes amendments to the allocation of clinical shifts based on his knowledge of the performance and skills of the other Staff Specialists and their preferred working times to ensure an appropriate mix of skills experience on all shifts; 7. Non-clinical time is marked with a "D3,D6 or D8" depending on whether it is a six, eight, or 10 hour non-clinical shift; and 8. Following his review, Dr Stearman provides a copy of the draft roster to Dr Petkovic for final approval and publication. Public holiday rostering 1. On or around 25 April 2016, the management accountant advised Ms Tait of certain anomalies in the payroll figures for the Emergency Department. At or about this time, the administration officer assisting Dr Stearman resigned and her function was assumed by the Administration Manager, Critical Care Services. On 19 May 2016, the following conversation between Ms Tait and Ms Petula Steele, a management accountant occurred: Ms Steele: I've had a look at the medical salary wages in the Emergency Department for Anzac Day. 10 staff specialists were paid in addition to the four that were rostered to work. This means 4 staff specialists were paid for working 40 hours while the other 10 staff specialists were paid for 96 hours but didn't work. Ms Tait: I will need to look into this further. Contact Andy and see if he knows how this happened. 1. Shortly thereafter, certain enquiries were made of Dr Stearman who subsequently informed Ms Steele that these payments were "normal". It was at this point in time that Ms Tait became aware that Staff Specialists were being paid for a shift on a public holiday in circumstances where they were not rostered to work and did not attend the Hospital to perform any duties. 2. Ms Tait contends that during any week containing a public holiday, the number of shifts actually performed by Staff Specialists is less than their contracted hours as they are not rostered on to work the public holiday. Under that arrangement, Staff Specialists were paid for working four shifts when they were actually only working three shifts plus payment for the public holiday. 3. Ms Tait deposed that she was concerned that the public holiday shifts paid but not worked could be better spent assisting patients with clinical care or by Staff Specialists performing non-clinical research or policy development. 4. It was Ms Tait's evidence that by ceasing payments to Staff Specialists not rostered to work on public holidays, the LHD was not requiring them to work more than their contracted hours. Rather, the LHD would "simply require Staff Specialists to work the hours they were contracted to work and be paid accordingly, rather than being paid for not working on a public holiday". Impact of public holidays 1. A spread sheet setting out all public holiday payments made to Staff Specialists working in the Emergency Department between 1 January 2013 and 26 January 2017 was annexed to Ms Tait's statement (JT-6). Specifically, the spread sheet showed "Staff Specialists who worked and who were paid, but did not work, on each public holiday during the period …". 2. Moreover, the data also showed that on average during the period, approximately 9 Staff Specialists were paid on each public holiday where they were not rostered to work and did not perform duties - a total of 460 shifts at a total cost of approximately $791,000. 3. It was contended that the practice of paying Staff Specialists a public holiday when they were not rostered to work on that public holiday constitutes an inefficient use of resources. Ms Tait believed that these shifts could have been rostered on other days so as to enable Staff Specialists to provide clinical care to patients or perform other non-clinical duties. 4. By ceasing the practice to pay staff specialists for a public holiday in circumstances where they are not rostered to work on that particular day, the Hospital would be able to better manage staff shortages, provide improved supervision for junior medical officers as well as roster flexibility to ensure the best care for patients at all times. Submissions ASMOF 1. The remedy sought by ASMOF was for the Commission to make a direction under S136 (1) (a) of the Act. 2. At the time shift work provisions were inserted into the Award in 2006 by the Full Bench in Re Staff Specialists' (State) Award, the Award did not contain a Public Holidays clause which is common in most awards, particularly those which contain shift work provisions such as the Public Hospital Career Medical Officers (State) Award, the Public Hospital Medical Officers Award and the Health Employees Conditions of Employment (State) Award. 3. No separate public holiday clause has been inserted into the Award since the consent variation in 2006. Shortly stated, ASMOF contended there was no intention by the parties to insert a separate Public Holidays clause into the Award because it was never contemplated by the parties that the consent variation would change the pre-existing practice regarding public holidays, with the exception of providing the payment of penalty rates where an emergency physician is rostered to work on a public holiday. 4. The evidence of Dr Sara and Dr Joseph supports the proposition that the penalty rates provision for working on a public holiday was never intended to replace or disturb the arrangements in place and now subject to this dispute. Dr Sara and Dr Joseph were both involved in the 2006 consent negotiations. 5. The evidence of Dr Lee suggests a number of Emergency Departments within other NSW LHDs pay emergency physicians for a public holiday in circumstances where they are not rostered to work on that particular day. 6. The intention of the Award provisions is to ensure flexibility and provide Staff Specialists with a degree of certainty so as to provide a consistent pattern of normal duties from one roster period to the next. 7. The LHD seeks to disturb the historical position and the Award requirement that "wherever possible", any change to normal duties rosters requires three months' notice with respect to ongoing change and one month in the case of short-term change. 8. In addition to unilaterally withdrawing a long-standing benefit applicable to emergency physicians, the LHD is also attempting to manipulate the roster so that emergency physicians are only rostered to undertake clinical shifts so as to avoid payments that otherwise would apply in accordance with s7 of the Public Holidays Act 2010 (NSW): …Hunter New England now tries to fiddle with the rosters on a week in, week out basis and makes adjustments in contemplation of weeks where public holidays fall. 1. Section 7 of the Public Holidays Act relevantly provides: 7 Employee entitlements on public holidays (1) The following provisions of the Fair Work Act 2009 of the Commonwealth apply as laws of New South Wales to and in respect of employees and employers in the State: section 114 (Entitlement to be absent from employment on public holiday) section 116 (Payment for absence on public holiday) (2) This section (and the provisions applying under this section as laws of New South Wales) are deemed to be industrial instruments for the purposes of Parts 1 (Breach of industrial instruments) and 2 (Recovery of remuneration and other amounts) of Chapter 7 of the Industrial Relations Act 1996. 1. ASMOF sought to rely on sections 114 and 116 of the Fair Work Act as set out below: 114 Entitlement to be absent from employment on public holiday Employee entitled to be absent on public holiday (1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. … 116 Payment for absence on public holiday If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part-day. Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs. 1. The LHD made a number of contentions not considered by ASMOF at the time its original outline of contentions was filed. Whilst the matters were well ventilated during the course of final submissions, it is relevant to set out the LHD's case and before dealing with ASMOF's contentions in reply. Local Health District 1. The LHD contended that dispute essentially concerned whether Staff Specialists employed in the ED have an entitlement to receive payment for public holidays on days when they have not been rostered to work. 2. Staff Specialists engaged in the ED work in accordance with a roster established initially as a template setting out the days on which Staff Specialists proposed to take annual leave, Training, Education and Study Leave and, the days on which they are otherwise required or available to work at the Hospital. The template roster is subsequently placed on a noticeboard so as to enable Staff Specialists to manually enter their preferred shifts for the next roster period. 3. After preferences have been recorded, vacant clinical shifts are identified and allocated to Staff Specialists who have not been allocated their contracted clinical shifts according to their preference nominations. Dr Stearman is responsible for reviewing the draft roster and making amendments to ensure there is an appropriate mix of skills and experience on each shift. The reviewed roster is ultimately sent to Dr Petkovic for finalisation and approval. 4. For its part, the LHD contends that following the 2006 consent variations, a practice has developed where ED Staff Specialists have been paid for a shift that falls on a public holiday in circumstances where that particular Staff Specialist was notionally rostered to work, but was not required to attend the Hospital to perform work duties on that day. 5. Accordingly, a significant amount of money had been paid to Staff Specialists for public holidays where no work had been performed. Against that backdrop, the LHD decided to change rostering so that Staff Specialists who are not notionally rostered to work on a public holiday are not rostered to work on that day so as to avoid the payment of a public holiday. Award Provisions 1. Clause 4 of the award addresses rostering: 4. Normal Duties Part A - General (a) Normal Duties will be worked for: (i) Not less than 40 hours per week; or (ii) 10 sessions per week over five days per week. (b) The Normal Duties hours set out in (a) above may be averaged over (i) four days per week; or (ii) a longer roster period as agreed between the Staff Specialist and the Employer, and specified in the Staff Specialist's performance agreement. (c) (i) With the exception of Staff Specialists working in accordance with paragraph (d) below, Normal Duties will be worked within the span of hours of 7.00 am to 6.00 pm Monday to Friday inclusive. (ii) Where Normal Duties hours are averaged over a roster period longer than 1 week as provided for in (b) above, Normal Duties may be worked Monday to Sunday inclusive. (d) Shift Work (i) Staff Specialists who are employed in a specialty or category specified in Part C Schedule 3 to this Award may be required to undertake shiftwork as part of their Normal Duties as specified in (a) or (b) above. This shiftwork may comprise day or evening shifts. (ii) For Staff Specialists working shift work, Normal Duties will be worked within the span of hours of 7.00 am to midnight Monday to Sunday inclusive; (iii) For Staff Specialists who undertake shiftwork, the normal rostered duties hours will be paid at ordinary time plus the appropriate penalty rate: hours worked between 6.00 pm and midnight Monday to Friday - 12.5%; hours worked between 7.00 am and midnight Saturday - 50%; hours worked between 7.00 am and midnight Sunday - 75%; and all hours worked on Public Holidays - 150%. The penalty rate will be calculated on the Staff Specialist's salary as set out in Part B Schedule 1 Rates of Pay of this Award plus the Special Allowance and Level 1 Private Practice Allowance specified in the Salaried Senior Medical Practitioners Determination, as varied from time to time. (iv) Additional specialties or categories may be included in Part C Schedule 3 to this Award from time to time by agreement between the Federation and the Secretary of the NSW Ministry of Health. If agreement cannot be reached, either party may make application to the Industrial Relations Commission for a variation to Part C Schedule 3. (e) Staff Specialists will be available for reasonable on call and recall duties outside of Normal Duties. Part B - Normal Duties Roster Changes (a) When developing rosters for Normal Duties in accordance with the provisions of Clause 4, Normal Duties of the Award, the Employer will ensure that: (i) Staff specialists are consulted and regard is to be given to any family, carer or other personal and professional concerns and responsibilities identified by the staff specialist to ensure, where practicable, that the staff specialist is not adversely affected and that alternative arrangements can be made if possible (eg change of child care or outside practice arrangements); and (ii) the principal outcome of changes to rosters is to maximise the effective delivery of clinical services by ensuring that senior medical staff are rostered to work Normal Duties at times and at places that most effectively meet the service delivery needs and operational requirements; and (iii) rosters identify the general nature of the work to be performed on each shift (clinical/direct patient care, administrative, teaching, research or quality improvement) and the facility at which the shift is to be worked. (b) On call rosters and responsibilities should align with Normal Duties roster days wherever practicable. (c) Wherever practicable, the usual pattern of Normal Duties will be consistent from one roster period to the next. (d) Notice Periods (i) Wherever possible, the following notice periods will apply to changes to the Normal Duties roster: 3 months notice of an ongoing change; or 1 months notice of short-term change (eg to cover a planned absence or one-off event); (ii) These provisions do not prevent the Employer from varying the roster of Normal Duties at short notice in an emergency, in response to an unplanned event or to cover an unplanned absence. (e) Shifts are to be shared equally amongst the staff specialists unless otherwise agreed. 1. Emergency Department Staff Specialists are engaged in emergency medicine as specified in Part C Schedule 3 of the Award. Accordingly, they may be required to work shift work as provided by clause 4 under Part A. Staff Specialists may also work on a part-time basis in accordance with part-time work agreements made under clause 13 of the Award. 2. Full-time and part-time Staff Specialists work in accordance with a written annual performance agreement which must include details of the time and place that the normal duties are worked, the anticipated call frequency and roster as required under clause 12(e): (e) A Performance Agreement will include, but not necessarily be limited to, the following: Details of the time and place that the normal duties are to be worked. The nature of work to be performed during normal duties, (whether that is clinical, teaching, administrative, research, quality improvement or other activities). The anticipated on call frequency and roster. Any specific call back requirements. Private billing expectations for Level 1 Staff Specialists. Any agreement on the amount of time that the Staff Specialist will be released from Normal Duties eg to undertake college and other professional association activities. Where appropriate, any financial, activity targets or health targets. Specific commitments and standards from the Employer for the provision of clinical support, including staff, equipment, facilities and billing. Expectations in respect of management responsibilities, quality improvement and clinical governance activities, post graduate and undergraduate teaching activities, continuing education, research, health outcomes. Any part-time working arrangement in accordance with clause 13 of this Award or outside practice approvals in accordance with clause 15 of this Award. 1. Staff Specialists who undertake shift work are entitled to penalty rates four hours worked outside their specified span of hours, including a 100% penalty for all hours worked on a public holiday as provided by clause 4(d)(iii). However, the Award does not contain any specific provision in relation to public holiday entitlements where Staff Specialists do not work on a public holiday. No extra claims provision 1. Clause 31 of the Award contains a standard no extra claims commitment which prohibits further claims or demands in pursuit of improvements to wages, salaries and conditions of employment other than is provided for under Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("the Regulation"). ASMOF seek to breach that commitment. Moreover, the LHD is entitled to enforce the variation to rosters under the Award. Public Holidays Act 1. Section 7 of the Public Holidays Act establishes public holiday entitlements. Those entitlements are guaranteed minimum conditions of employment in accordance with clause 7(2) (d) of the Regulation. Clause 9(1)(e) of the Regulation further provides that guaranteed minimum conditions of employment cannot be reduced to achieve employee-related cost savings for the purpose of determining wage increases. 2. Moreover, section 114 (1) of the Fair Work Act set out above provides that an employee is entitled to be absent from his other employment on a day or part-day that is a public holiday. However, s116 of that Act, also set above, provides that, if an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer may pay the employee's base rate of pay for the employee's ordinary hours of work on the day or part day. 3. Importantly, the Note to s116 provides that if the employee does not have ordinary hours work on a public holiday, then the employee is not entitled to payment under that section. Emergency Department staff specialists not entitled to be paid for public holidays on which they are not rostered 1. The LHD submitted there was common ground between the parties that the Award does not deal with the entitlement of Staff Specialists to be paid public holidays on days upon which they are not required to work. Against that backdrop, there is no legal basis for ASMOF to seek to preserve the past practice in relation to making public holiday payments to Emergency Department Staff Specialists. 2. The LHD urged the Commission not to make the Direction sought by ASMOF on the following grounds: 1. The claim is in breach of the no extra claims commitment contained in clause 31 of the Award; 2. The LHD is entitled to change roster arrangements in accordance with clause 4, Part B - Normal Duties Roster Changes of the Award; 3. The combined operation of s7(1) of the Public Holidays Act and s116 of the Fair Work Act means that Staff Specialists working in the Emergency Department of the Hospital are not entitled to receive payments for public holidays which they are not rostered as part of the ordinary hours of work; and 4. The Commission does not have the jurisdiction to make the direction sought. ASMOF in reply Breach of the no extra claims 1. Clause 31 of the Award, No Extra Claims, relevantly states: Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2017 by a party to this Award.(emphasis added). 1. ASMOF submitted the unilateral action of the LHD in this matter will, if it is permitted to do so, result in reduction of the conditions of employment for emergency physicians. LHD is entitled to change roster arrangements 1. Implicit in the roster arrangements set out under clause 4 of the Award is a requirement that "wherever possible", specific notice periods to change rosters should be adhered to accept an emergency or due to an unplanned event or absence. It is also an intention of the Award to provide for rosters to be "rolled over" subject of course to the specified notice periods where the LHD or Staff Specialist may require a variation to the relevant roster in response to an emergency, an unplanned event or unplanned absence. It is not open to the LHD to manipulate or "fiddle:" with the rosters. Combined operation of s7(1) of the Public Holidays Act and s116 of the Fair Work Act 1. Shortly stated, the legislative regime provides that employees are entitled to be absent from his/her employment on a public holiday and receive payment for that absence if they would have ordinarily worked that day. Jurisdiction 1. ASMOF submitted there was no impediment to prevent the Commission from making the Direction in the terms sought. Consideration 1. There was little, if any, factual disagreement between the parties. 2. ASMOF has sought a direction from the Commission, pursuant to s 136 (1) (a) of the Act to direct that the Hospital "preserves the pre-existing status quo" and reinstates its past practice to pay an ED Staff Specialist for a shift that falls on a public holiday in circumstances where he/she was notionally rostered to work but was not required to attend the Hospital to perform work duties on that day. 3. In determining this matter, I have considered all the evidence and submissions of the parties. On the material before the Commission, the LHD has failed to undertake proper consultation with a group of emergency physicians who work under extreme pressure to deliver clinical services to an ever-expanding client base. For their part, hospital administrators are required to manage the provision of clinical care within budget. Those pressures are very real. So too are the pressures on ED Staff Specialists and other health professionals to often "do more with less". 4. It is unfortunate that in this particular industrial dispute, the LHD allowed a "backroom analysis" to unilaterally remove a long standing condition of employment that has been in place within the ED of the Hospital and elsewhere within NSW without first consulting those staff specialists immediately affected. 5. It was identified in the course of proceedings that the Award is perhaps the only award of its kind covering medical professionals that does not have a standard public holiday provision. At the same time, the LHD, like a number of other LHD's throughout New South Wales, has made payments to Department Staff Specialists for public holidays on which no work was performed. But of course, similar payments are also paid to a range of health professionals in accordance with the relevant awards on the grounds that those awards contain provisions governing the payment of public holidays. 6. Neither party sought to submit extrinsic material including minutes, notes and the like related to the 2006 consent variations. I consider correspondence; meeting notes and the like extrinsic materials dealing with the 2006 consent variations to Award may have been helpful in determining this matter. 7. The LHD's rebuttal that the "claim" is in breach of the no extra claims commitment is, arguably, countered by ASMOF's contentions that the LHD is seeking to remove a long-standing "conditions of employment" benefit. The material before the Commission concerning whether a not there is a breach of the no extra claims commitment was insufficient to make any final determination. I propose to make the same observations concerning the application of the Regulation. 8. The Public Holidays Act provides an employee with an entitlement to payment when absent on a public holiday. The incorporation of ss114 and 116 of the Fair Work Act provides that an employee is entitled to be paid for his or her absence from the workplace on a day or part-day that is a public holiday. Conversely, there is no entitlement to payment circumstances where the employee is not afforded ordinary hours work on the public holiday. 9. Notwithstanding the Award deficiency, Staff Specialists have "read" the Award so as to confer a public holiday benefit since 2006. 10. In this particular matter, the LHD has sought to exercise its rights under the Award and vary rostered hours to ensure ED Staff Specialists are given zero rostered hours on a public holiday. In that regard, I note the evidence of both Dr Lee and Dr Downes was that there were some public holidays where they were not rostered to work and they did not receive payment for the public holiday. 11. However, the overwhelming evidence before the Commission is that the custom and practice has been that the LHD, like other LHDs in NSW, has made public holiday payments as alleged by ASMOF. 12. It also appears on the material before the Commission that some part-time Staff Specialists were treated differently within both the LHD and those LHDs identified in Dr Lee's evidence. 13. I accept the LHD's submissions that in the particular circumstances of this industrial dispute, the Commission should not make a Direction under s136(1)(a) of the Act because to do so may, in effect, create a new and binding legal obligation. The practical effect of a Direction by the Commission would have the effect of substantially changing clause 4 of the Award, an industrial instrument that has application throughout NSW. Recommendation 1. I am prepared to make a very strong recommendation that the LHD continues its previous long-standing practice to pay Emergency Department Staff Specialists for public holidays in the circumstances outlined above until the current award expires on 30 June 2019. In that regard, I accept the evidence of ASMOF, including Dr Sara and Dr Joseph that the very practice the LHD has sought to remove in this dispute continues to have application in a number of other LHDs identified by Dr Lee. 2. A key object of the Act is "to provide a framework for the conduct of industrial relations that is fair and just". In my experience, consultation promotes communication and cooperation in the workplace. It also encourages discretionary effort, a key driver of productive performance. 3. A Recommendation, as outlined above, represents a fair and just outcome given the particular circumstances of this case. 4. Ultimate resolution of this dispute lies with a variation to the award or in the alternative, an agreement between the Ministry of Health and ASMOF applicable to all Emergency Department Staff Specialists in NSW. In that regard, I also make a strong recommendation that the parties confer at the earliest opportunity. J D Stanton Commissioner Amendments 24 August 2018 - Coversheet 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: 24 August 2018