Health Services Union New South Wales v Health Secretary for the NSW Health Service, NSW Health Pathology Division [2019] NSWIRComm 1022

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union New South Wales v Health Secretary for the NSW Health Service, NSW Health Pathology Division [2019] NSWIRComm 1022 Hearing dates: 12 March 2019 Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. The Health Employees' Conditions of Employment (State) Award 2018 does not entitle NSW Health Pathology to compel employees who are "day workers" as defined under that Award to commence working to a 24/7 rotating shift work roster without their agreement.

2. Each of Toula Anastosopolous, Peter Berris, Adib Bishay, Vu Phi (Faye) Hoang and Tina Vaccaro is properly to be regarded as a day worker for the purposes of the Health Employees' Conditions of Employment (State) Award 2018. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – principles to apply – employees working day shift – whether award allows for employer to require employees to work according to a 24/7 rotating shift roster without the consent of the employees – whether such a term is to be implied into the award – whether relevant employees are "day workers" for the purposes of the award Legislation Cited: Industrial Relations Act 1996 (NSW) ss 8, 130, 175 Cases Cited: Ali v Christian Salvesen Food Services Ltd [1997] 1 All ER 721 Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 State Transit Authority (NSW) v Australian Rail, Tram and Bus Industry Union (NSW Branch, Bus and Tram Division) [2014] NSWIRComm 41; 247 IR 129 Category: Principal judgment Parties: Health Services Union New South Wales (Notifier)