WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00386

DELIVERED : THURSDAY, 8 MAY 2014

FILE NO. : M 119 OF 2013

CLAIMANT

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board

RESPONDENT

Catchwords : Alleged failure to comply with the WA Health - LHMU - Support

Workers Industrial Agreement 2007; Patient Care Assistant at King Edward Memorial Hospital not provided with an uninterrupted 30 minute meal break; whether employee “on call” because she was required to respond to urgent requests during meal breaks; whether a 30 minute overtime payment ought to be made for each shift worked.

Legislation :  Industrial Relations Act 1979 

Instruments : WA Health - LHMU - Support Workers Industrial Agreement 2007

Order of the Western Australian Industrial Relations Commission issued on 24 October 2010

Cases referred to

in judgment :   Director General, Department of Education v United Voice

                                               WA [2013] WASCA 287

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2]

Kucks v CSR Limited (1996) 66 IR 182

 City of Wanneroo v Holmes (1989) 30 IR 362

 Australian Broadcasting Commission and Australasian Performing Rights Association Limited [1973] HCA 36; (1973) 129 CLR 99

Result    : Claim proven

Representation 

Claimant :        Ms M Grigis (of Counsel)

Respondent  :         Ms H Millar (of Counsel) 

REASONS FOR DECISION

Overview

1          Ms Judit Szito, a member of the Claimant, is an employee of the Respondent.

2          The Claimant alleges that between 30 March 2009 and 19 January 2012 (the relevant period) Ms Szito was not paid her correct entitlements, amounting to $3897.32.  It contends that because she was continuously “on call” during each meal break, Clause 15.1 of the WA Health - LHMU - Support Workers Industrial Agreement 2007 (the Agreement) operates to require that payment, equivalent to 30 minutes of overtime, be paid to Ms Szito for each shift worked.  

3          The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board (the Respondent) denies that Ms Szito was “on call” during meal breaks, and that she was not correctly paid.

Facts not in dispute

4          The following facts are not contentious:

(1)          the Claimant is an organisation of employees registered under Division IV of Part II of the Industrial Relations Act 1979;

(2) Ms Szito is a member of the Claimant;

(3)  between 30 March 2009 and 19 January 2012, Ms Szito was employed by the Respondent as a Patient Care Assistant (PCA) at King Edward Memorial Hospital (KEMH);

(4)               the Agreement governed Ms Szito’s employment during the relevant period;

(5) Ms Szito worked on a part-time basis within the Women’s and Newborn Health Services Unit (the Unit) at KEMH.  She worked three evenings per week (Friday to Sunday inclusive), commencing at 8.30pm each evening and concluding at 7.00am the following morning;

(6)  during the relevant period Ms Szito was the only PCA rostered on in the Unit; and

(7)  Ms Szito was directed to collect a pager at the commencement of each shift.

Facts in dispute

5          The following facts are in dispute:

(1)          that Ms Szito was “on call” during her shifts;

(2)          that the requirement for Ms Szito to carry the pager was a requirement to be “on call”;

(3)          that whilst on her meal break, Ms Szito was required to respond to pages received; and

(4)          that she was not paid her correct entitlement during the relevant period.

Issues

6          The issues to be determined in this matter are:

(1)          whether Ms Szito is entitled to payment equivalent to 30 minutes of overtime for each shift worked during the relevant period; and

(2)  if so, the quantum of her entitlement.

Evidence

Judit Szito

7          Ms Szito has worked as a PCA within the Unit at KEMH since 2007.  Her usual shifts are Fridays, Saturdays and Sundays commencing at 8.30pm each evening and concluding at 7.00am the following morning.  Each shift spans 10.5 hours.  Ms Szito is paid for ten hours in each shift, and receives an unpaid meal break for the duration of 30 minutes.  Her duties include collecting blood and other samples and delivering those to the laboratory, delivering milk, cleaning milk bottles, cleaning incubators and other equipment, emptying rubbish bins, and general washing and cleaning.

8          Whilst on night shift during the relevant period, Ms Szito was the only PCA on duty within the Unit.  The Unit is a large department within KEMH which is spread across two floors. Ms Szito had the responsibility of responding to all requests made of her by staff members within the Unit. Given the physical characteristics of the department, Ms Szito was required to carry a pager so that staff members could more easily contact her.  She was required to collect her pager at the commencement of each shift and carry it with her throughout her shift.

9          Given that she was the only PCA working on night shift within the Unit, the demands upon on Ms Szito were very high.  In 2010, she sent an email to her supervisor, Ms Kylie Murray, complaining about her workload and other issues (exhibit 2).  During the course of 2011, Ms Szito continued to complain about her work situation, and in particular, about the fact that she could not take an uninterrupted meal break.  In various emails to her superiors, Ms Szito complained bitterly about being called away from her meal breaks by the nursing staff in order to attend to urgent matters (exhibit 1).  On 19 August 2011, Mr Marc Moore, Manager of Patient Support Services at KEMH wrote to Ms Szito and advised her that she could choose to hand over her pager to the Coordinator of the Special Care Nursery during meal breaks (exhibit 1).  Ms Szito testified that when she tried to do that, the Coordinator declined to take her pager and that the suggested arrangement was not achievable.

10       Around May 2012, Ms Szito sought the retrospective payment of an “on call” allowance for meal breaks that she says were not able to be taken whilst working night shifts.  Her claim was rejected.  On 24 May 2012, Mr Graeme Boardley, Executive Director, Midwifery, Nursing and Patient Support Services at KEMH, wrote to Ms Szito and informed her that she did not meet the criteria to receive such allowance, and in any event she was never given a written directive to respond to the pager during her meal breaks.  Mr Boardley also informed Ms Szito that she did not work a straight eight hour shift and therefore was ineligible, under the terms of the Agreement, to receive the payment sought (exhibit 5).

11       Ms Szito’s evidence was that on most occasions that she took a meal break, she was interrupted and forced to respond to pager calls made to her. She could not say with any degree of specificity which particular meal breaks were interrupted, nor was she able to estimate the percentage of meal breaks interrupted. Despite that, she emphatically maintained that most of her meal breaks were interrupted.

Marie Fluellen and Lisa Pears

12       Ms Marie Fluellen and Ms Lisa Pears, called to give evidence by the Claimant, substantially corroborate Ms Szito’s assertions.

13       Ms Fluellen worked as a PCA at KEMH for approximately 15 years, until 2010.  She trained Ms Szito in her job.  Ms Fluellen testified that when she started working within the Unit she was told that she had to carry a pager with her at all times, and that it had to be responded to immediately upon it activating.   When she trained Ms Szito in her job, Ms Fluellen told her that the requirement was that the pager was to be responded to immediately each time it activated.  As a consequence, her meal breaks were always interrupted.  Ms Fluellen could not recall ever having an uninterrupted 30 minute meal break.

14       Approximately one year before she left her job, Ms Fluellen was told by Ms Murray that she could leave her pager with another person during meal breaks. However, when she attempted to do that, the nominated person refused to take it.  The end result was that she retained the pager during her meal breaks and was forced to respond when it activated.

15       Ms Pears has worked at KEMH as a Registered Nurse for approximately 20 years.  Between March 2009 and March 2012 Ms Pears worked within the Unit.  She had supervisory responsibilities and it was part of her duties to instruct Ms Szito as to what needed to be done.  Ms Pears’ evidence was that if she paged the PCA to do something on an urgent basis, she expected the required task to be done immediately.  Some tasks which were not urgent could be done at the PCA’s own pace.  Ms Pears’ belief was, and is, that the PCA is “on call” and must respond to an urgent page irrespective of what they were doing at the time.  She opined that it would be difficult to have an uninterrupted break in the Special Care Nursery as it usually is a very busy, fast paced ward.

      Kylie Murray and Tamara Savadge-Davenhill

16       The Respondent called two witnesses.  They were Ms Kylie Murray, the KEMH Patient Support Services Coordinator and Ms Tamara Savadge-Davenhill, a Clinical Nurse.  Ms Murray was Ms Szito’s supervisor and Ms Savadge-Davenhill worked with Ms Szito within the Special Care Nursery.

17       Ms Murray testified that the PCA’s role required significant movement between different sections of the Special Care Nursery.  It was sometimes necessary for the PCA to urgently respond to issues or transport items.  The pager serves to enable quick contact with the PCA. It also facilitates contact with the PCA when the PCA is working out of physical reach in another section of the Unit.   Ms Murray’s evidence was that by carrying the pager, the PCA was not on call. 

18       Ms Murray testified that when she spoke to Ms Szito in 2011 about her issues concerning the pager and her interrupted meal breaks, she suggested that the best way to deal with the situation was to determine whether the matter was urgent.  If the matter was not urgent, Ms Szito ought to finish her break.  If the page was urgent, Ms Szito should attend to the required task and then return to finish her break once the task had been completed.  Ms Murray said that the fact that Ms Szito’s break was sometimes interrupted was “an unfortunate, but unavoidable reality of working in the Special Care Nursery” (exhibit 12). 

19       Ms Murray confirmed also that the shifts that Ms Szito used to work on her own, are now worked by two PCA’s but with extra duties required of them.

20       Ms Savadge-Davenhill testified that the Special Care Nursery is usually a busy place, particularly at night.  There are between 35 and 40 nursing staff on night shift.  Ms Savadge-Davenhill also testified that it has never been part of her role to manage the PCA or to track their work.  From time to time, she and other nursing staff instruct the PCA to perform certain tasks, some of which may be urgent.  Ms Savadge-Davenhill said that urgent pages are few in number, averaging approximately two or three per night.  However, her expectation is that an urgent page is to be responded to immediately, even if it means that a meal break is interrupted.

21       Ms Savadge-Davenhill confirmed also that she declined to take Ms Szito’s pager whilst Ms Szito took her meal break because there would be no PCA to respond to an urgent page if one was received during the meal break.

Assessment of Witnesses

22       In submissions, Counsel for the Respondent suggested that Ms Szito’s evidence ought to be treated with caution.  It was suggested that she was not credible as indicated by the shifting nature of the Claim.  She pointed out that the Claim has changed from one where it was suggested that Ms Szito never had an uninterrupted meal break to one in which it is claimed that most of her meal breaks were interrupted.  In my view, there can be no criticism of Ms Szito occasioned by the way in which the Claim brought by the Claimant has evolved.  Claims of this nature going back many years, with limited documentary support, often shift from start to finish.  It does not mean that the Claim is unfounded or that it is based on a falsehood.

23       I found Ms Szito to be a credible and reliable witness.  Indeed, much of her evidence was supported by the Respondent’s own witnesses.  Ms Szito was careful and considered in the delivery of her evidence and she was unprepared to guess at what may have been the case as to the percentage of meal breaks which were interrupted.  That shows that Ms Szito is not prone to making statements that cannot be supported.  Ms Szito was an excellent witness and I accept her evidence in its entirety.  I accept that when Ms Szito commenced in the PCA’s role, she was told that she had to immediately respond to pages. She did that, including during her meal breaks, throughout the relevant period.  There was a clear expectation that she would do so.  The expectation of staff within the Unit was that the PCA would immediately respond to pages. That expectation was one that overrode all other considerations, including whether or not Ms Szito was on a meal break.

24       When Ms Szito complained about not being able to take an uninterrupted break, it was suggested that she leave her pager with another staff member.  That however, was practically impossible because no-one else was prepared to take the pager from her.  In the end, Ms Szito she was forced to retain the pager which activated during her meal breaks. Irrespective of whether the message received was urgent or not, Ms Szito was required to respond to it and as a consequence, her meal break was interrupted on most occasions.  The level of disruption depended upon the particular circumstances.

Determination

25       At all material times Ms Szito worked night shifts (see Clause 17.1(b) of the Agreement).  The spread of hours she worked was 10.5 hours per shift, from 8.30pm of an evening to 7.00am the following morning. 

26       Clause 13.3 of the Agreement provides the maximum daily hours:

“13.3 Maximum daily ordinary hours

(a) The spread of hours of work will be from the time an employee signs on duty at the beginning of the shift until the employee signs off at the completion of the shift.

(b) The spread of hours of any one shift cannot exceed ten (10) hours.

(c)  The exception to this is where a spread of hours exceeding 10 hours but not exceeding 11.5 hours, allows for the work to be undertaken without additional staff and/or expense.”

27       Given that the spread of hours worked is not contentious, I infer that clause 13.3(c) of the Agreement had application to Ms Szito’s situation.

28       Clause 15 of the Agreement relating to “Breaks” provides:

“15.   BREAKS

15.1     An employee can not work more than five (5) hours without a break.

(a)     There will be no more than three (3) breaks in any shift including meal breaks.

(b)  A meal break will be for a period of at least 30 minutes

but not greater than one hour for each meal. 

(c) The exception to this provision is that night shift employees will work a straight shift of eight hours which will include a paid meal break during which the employee will be on call.

15.2                   Tea Breaks

(a) Employees will take only one tea break per shift or shifts of four hours or longer.

(b)  Employees on shifts of less than four hours will not be entitled to a tea break.

(c)   A tea break will be a maximum of fifteen minutes.

(d)  Notwithstanding anything mentioned in the above subclauses an employee who is employed for greater than four hours is entitled to an unpaid meal break of not less than 30 minutes and not more than one hour as well as a tea break.”

29       The Claim is founded on the Respondent’s alleged failure to comply with Clause 15.1(c) of the Agreement.  The Respondent suggests that Clause 15.1(c) has no application to Ms Szito’s circumstances because she worked a 10.5 hour shift, rather than the eight hour shift referred to in Clause 15.1(c) of the Agreement.

30       I observe that Clause 15.1(c) of the Agreement has application to night shift employees who work a straight shift of eight hours.  It is not disputed that Ms Szito worked a straight shift of 10.5 hours, which included an unpaid 30 minute meal break.  The Respondent suggests that because Ms Szito worked a 10.5 hour shift rather than an eight hour shift, she fell outside of the requirements of Clause 15.1(c) of the Agreement.

31       The proper approach to the construction of an industrial agreement has recently been reviewed by Buss J, in Director General, Department of Education v United Voice WA [2013] WASCA 287.  His Honour said at paragraphs 81 to 83:

“The proper approach to the construction of an industrial agreement

81   The construction of an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean.  The language of the agreement should be understood in the light of its industrial context and purpose. See Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J).

82 In Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J observed: 

  It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced.  The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind:  they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.  Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities or expression that might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for.  For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand (184).   

See also City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362, 378 - 379 (French J); Amcor [96] (Kirby J), [129] to [130] (Callinan J).

 83 The words of a clause in a written agreement are to be given the most appropriate   meaning which they can legitimately bear.  A court must have regard to all the provisions of the agreement with a view to achieving harmony among them.  See Australian Broadcasting Commission v Australasian Performing Rights Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J).  These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument.”

32       The narrow, pedantic, literal approach suggested by the Respondent will, with respect, produce an absurd result. The effect of such a construction is that employees performing exactly the same duties will be treated differently, dependant on the length of the shift that they work.  Ostensibly, the employee working the longer shift will be treated less favourably.

33       Clause 15.1(c) of the Agreement was intended by its framers to take into account the exigencies of working night shift, including the need for employees to be available whilst taking a meal break.  Indeed, Clause 15.1(c) perfectly reflects Ms Szito’s circumstances.  It recognises that an employee in Ms Szito’s position might, as she was, be required to respond to calls made whilst on a meal break.  Clause 15.1(c) of the Agreement must therefore be construed to mean that an employee who works a night shift of eight hours or more (my emphasis) will be entitled to a paid meal break because the clause recognises that the employee will be “on call” during that break.  Clause 15.1(c) applies to Ms Szito in any event because she worked a straight shift of eight hours within her 10.5 hour span.  An eight hour shift is a subset of the 10 hours she worked.

34       It may appear that Clause 15.1(c) and Clause 15.2(d) of the Agreement are in conflict, however, that is not so.  Clause 15.2 has application to all circumstances where an employee, not on night shift, is employed for more than four hours, whereas Clause 15.1(c) of the Agreement has application only to those working long night shifts.

35       The Respondent argues that Ms Szito was not “on call” because there was no written direction of the type contemplated by Clause 16.4 of the Agreement given to her.  I reject that argument.  Clause 16.4 appears not to be relevant to Ms Szito’s circumstances.  It is aimed at a different situation to that is encountered by night shift employees such as Ms Szito.  The obligation to be “on call” during her meal break was not dependent upon a written directive.  Clause 15.1(c) of the Agreement provides that night shift employees “will be on call” during their meal break.  The requirement to be “on call” is mandated by the clause itself which reflects Ms Szito’s reality. The evidence overwhelmingly indicates that she was “on call” during her meal breaks.  I accept that on most occasions her meal breaks were interrupted.  Clause 15.1(c) of the Agreement reflects that reality, and provides that in such circumstances, the meal break be paid.

36       The Respondent submitted that it is incumbent for the Claimant to prove each and every circumstance of interruption and/or response to a paged call.  I disagree.  It is not necessary to do that because every shift that Ms Szito worked included a paid meal break.  She was “on call” during that meal beak. It matters not whether Ms Szito was actually interrupted or called out on any particular shift.  Whether or not she was interrupted, her entitlement remained constant.  Her entitlement is not contingent on proof of interruption to her meal break but rather flows from the fact that she was “on call” as required by the Agreement.

37       It is not in dispute, that during the relevant period, Ms Szito was not paid for her meal breaks.  Consequently, there has been a failure to comply with Clause 15.1(c) of the Agreement with respect of each pay period.  It follows that all time worked by Ms Szito, in excess of her 10 hour paid shift, attracts overtime in accordance with the provision of Clause 16.1 of the Agreement.

38       I am assisted in calculating the amount that Ms Szito was underpaid by reference to the spreadsheet produced by the Claimant which is before me by consent. It reflects the days and times worked by Ms Szito from 8 June 2009 until 29 January 2012.  The spreadsheet covers only part of the relevant period.  There is no other evidence before me supporting the Claim before 8 June 2009 or after 29 January 2012. 

39       With respect to the period from 8 June 2009 to 29 January 2012, the spreadsheet includes claims for days when Ms Szito did not work.  It also includes claims for when she worked less than three hours.  Those claims are clearly not maintainable.

40       The Claim includes days not worked by reason of having taken an “Accrued Day Off” (ADO).  The following table reflects days claimed when Ms Szito was on an ADO.

41       The Claimant cannot succeed with respect to $10.20 claimed for Wednesday, 2 June 2010, when Ms Szito worked less than four hours. 

42       The following table relates to claims made for days not worked taken as “Time Off in Lieu”. Such claims also cannot succeed.

43       Accordingly, the total amount of $208.81 must be deducted from the amount of $3897.32 claimed, which leaves the balance payable to Ms Szito of $3,688.51. 

44       I will hear from the parties as to the orders to be made.

G. CICCHINI

INDUSTRIAL MAGISTRATE