2023 WAIRC 00344
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00344

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 22 JUNE 2022

DELIVERED : WEDNESDAY, 28 JUNE 2023

FILE NO. : M 174 OF 2021

BETWEEN
:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
CLAIMANT

AND

NORTH METROPOLITAN HEALTH SERVICE
RESPONDENT

CatchWords : INDUSTRIAL LAW – Claim for shift penalty – claim for additional annual leave – longstanding agreement to start work before “ordinary hours” as defined by instrument – agreement requested by employee – meaning of “night shift” and “continuous shift worker” – existence of roster – estoppel
Legislation : Industrial Relations Act 1979 (WA)
Health Services Act 2016 (WA)

Instruments : WA Health Engineering and Building Services Industrial Agreement 2015 [2015] WAIRC 00012
WA Health System Engineering and Building Services Industrial Agreement 2017 [2017] WAIRC 00124
WA Health System Engineering and Building Services Industrial Agreement 2019 [2019] WAIRC 00124
Result : Claim is dismissed
REPRESENTATION:

CLAIMANT : MR J. MOSS (OF COUNSEL)
RESPONDENT : MR C. CAMERON (OF COUNSEL)
REASONS FOR DECISION
Introduction
1 This claim is brought pursuant to the provisions of the Industrial Relations Act 1979 (WA) (IR Act).
2 The claimant alleges that the respondent has contravened entitlement provisions of the following industrial instruments:
a. WA Health Engineering and Building Services Industrial Agreement 2015 [2015] WAIRC 00012 (2015 Agreement);
b. WA Health System Engineering and Building Services Industrial Agreement 2017 [2017] WAIRC 00124 (2017 Agreement); and
c. WA Health System Engineering and Building Services Industrial Agreement 2019 [2019] WAIRC 00124 (2019 Agreement)
(the Agreements), as those instruments applied to its member, Mr Paul Corr, whilst Mr Corr was employed by the respondent during the period from 1 September 2015 and 14 October 2020 (Period of Employment).
3 Specifically, the claimant alleges contraventions of:
a. Provisions pertaining to the payment of a 20% loading for night shift – namely, cl. 12.2(b)(ii) of the 2015 Agreement, cl. 12.2(b)(ii) of the 2017 Agreement, and cl. 13.2(b)(ii) of the 2019 Agreement (Night Shift Penalty Contravention); and
b. Provisions pertaining to additional annual leave entitlements for continuous shift workers – namely, cl. 25.2(b) of the 2015 Agreement, cl. 25.2(b) of the 2017 Agreement, and cl. 26.2(b) of the 2019 Agreement (Annual Leave Contravention).
4 For the following reasons, in my opinion the claim should be dismissed.
I Ability to Sue the Respondent
5 The claimant brings its claim for contraventions dating back 6 years from the commencement of the claim. This is in accordance with s 82A of the IR Act, which provides:
An application under section 77, 83, 83B, 83E or 84A must be made within 6 years from the time of the alleged contravention or failure to comply.
6 It appears that the claimant alleges contraventions dating back longer than 6 years prior to the commencement of the claim, but by virtue of s 82A, it is constrained to limiting its claim to that 6-year period.
7 As the claim is dated 2 September 2021, that would date the claims from 2 September 2015.
8 The respondent is the North Metropolitan Health Service (NMHS). The NMHS was established pursuant to the Health Services (Health Service Providers) Order 2016 (Order).
9 The Order itself was made pursuant to s 32(1)(b) of the Health Services Act 2016 (WA) (HSA). Section 32 of the HSA came into effect on 14 June 2016.
10 The Order was published in the Government Gazette on 17 June 2016.
11 Pursuant to cl. 2 of the Order, the Order came into operation “on the day after the day on which it [was] published in the Gazette” – i.e., 18 June 2016.
12 The NMHS therefore came into existence on 18 June 2016.
13 Pursuant to the terms of the HSA, the NMHS is a corporate body with perpetual succession, and it can sue and be sued in its corporate name.
14 The NMHS in its own corporate name was a party to the 2017 Agreement and the 2019 Agreement.
15 The WA Health Service parties to the 2015 Agreement were defined in cl. 4.1(a) of the 2015 Agreement as:
The Minister for Health in his incorporated capacity under s. 7 of the Hospitals and Health Services Act 1927 (WA) as:
i. the Hospitals formerly comprised in the Metropolitan Health Service Board;
ii. the Peel Health Services Board; and
iii. the WA Country Health Service.
The Director General of Health is the delegate of the Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA). In this capacity the Director General acts as the “Employer” for the purposes of this Agreement.
16 Mr Corr’s place of employment, Osborne Park Hospital, was one of the hospitals comprised in the Metropolitan Health Services Board.
17 Section 249(2) of the HSA provides:
On and after transition day, any agreement or instrument that contains a reference to a hospital board has effect as if the reference were to a relevant successor so far as the reference relates to the relevant successor’s functions, unless the context otherwise requires.
18 By virtue of s 249(2), from 19 June 2016 until 7 March 2017 When the 2017 Agreement was registered and to which the NMHS was a party.
the 2015 Agreement applied to the NMHS as a relevant successor to the Metropolitan Health Services Board.
19 Section 249(4) of the HSA provides:
On and after transition day, any proceedings or remedy that might have been commenced or continued by or against, or might have been available to or against, a hospital board may be commenced or continued by or against, or is available to or against, a relevant successor so far as the proceedings or remedy are in respect of an act, matter or thing that is within the relevant successor’s functions.
20 The NMHS is a relevant successor to the Metropolitan Health Services Board, and these proceedings are in respect of matters that are within the NMHS’ functions – namely, the requirement for the NMHS to comply with the Agreements in the same way that its predecessor was required to comply with those Agreements.
21 Consequently, the entire claim is properly brought; the earlier portion of it, which predates the existence of the NMHS as a corporate body, is not precluded simply because the NMHS was not a party to the 2015 Agreement.
II Night Shift Penalty Contravention
22 The claimant alleges that the respondent contravened cl. 12.2(b)(ii) of the 2015 Agreement, cl. 12.2(b)(ii) of the 2017 Agreement and cl. 13.2(b)(ii) of the 2019 Agreement. These clauses are in identical terms and provide that:
An employee when working on night shift will be paid a loading of 20% of the hourly rate for the classification in which the employee is employed.
23 Per cl. 12.2(a)(ii) (cl. 13.2(a)(ii) of the 2019 Agreement):
“Night shift” will mean a shift which commences at or after 1800 hours and before 0600 hours.
24 The claimant asserts that by operation of those clauses, “[during the Period of Employment], Mr Corr may be regarded as having worked night shift and was therefore entitled to a 20% loading on all hours worked” Amended Statement of Claim, [7] (NB, this is the second paragraph numbered [7] in the Amended Statement of Claim).
(emphasis added).
25 I have italicised all hours worked in the preceding paragraph because it conflicts with another view which has permeated the materials and evidence in this matter – namely, that if a penalty were payable to Mr Corr, it might only have applied to the hour he worked each day between 5:00 am and 6:00 am. I infer that this view has arisen because:
a. The Agreements define “ordinary hours of work” as hours worked as rostered “between 0600 hours and 1800 hours”; and
b. On each day of Mr Corr’s Period of Employment, he worked all but one hour during “ordinary hours”.
26 In those circumstances, it feels counter-intuitive to treat Mr Corr’s daily work as “night shift” in its entirety.
27 However, as the Employment Factbook explains: Thomson Reuters online edition, Employment Factbook 487620715 (online at 29 March 2023) Conditions of Employment, ‘Shift work’ [4 – 1300].

[4-1300]
Shift work is a work arrangement whereby the day is divided into periods, known as shifts (eg day shift, afternoon shift and night shift). Under this system, operations are continued by the regular engagement of groups of employees, which take over from other groups that were engaged for the period immediately prior (eg afternoon shift 3 pm to 11 pm taking over from the day shift 7 am to 3 pm).
28 Inherent in that definition is that a “shift” is a block of consecutive hours worked. In Mr Corr’s case, the period or “shift” that he worked each day was from 5:00 am until 1:45 pm. There was never any variation to that pattern of work. It was never the case that Mr Corr worked the hour from 5:00 am to 6:00 am as a required extra hour on top of generally “ordinary” hours. In those circumstances, it would be an exercise in artificiality to contemplate that Mr Corr worked two species of “shift” in that one block of hours each day.
29 If anything, Mr Corr’s pattern of hours presents as a day shift with an early start, rather than two types of shift or a true night shift.
30 However, as the definition of “Night shift” in the Agreements only refers to a shift which commences at or after 1800 hours and before 0600 hours, and does not define night shift by reference to any end time, Unlike some industrial instruments, such as the Nurses Award 2020, which defines “night shift” as “any shift commencing on or after 6.00 pm and finishing before 7.30 am on the following day” (cl. 20).
I accept the claimant’s view that if the claim is proven, Mr Corr will be entitled to a 20% loading on all hours worked.
31 Having said that, it is a key issue in this case whether Mr Corr was truly working “shifts” at all, in terms of the meaning attributed to “shift” in the context of the Agreements.
II(i) Mr Corr’s work arrangement
32 Mr Corr’s evidence is that when he started working as a painter at Osborne Park Hospital (OPH) in 1984, he worked a 9-day fortnight, and his hours of work were 7:00 am to 4:00 pm.
33 In 1990, Mr Corr’s personal circumstances changed, so he asked his manager at the time, David Watts, if he could maintain the 9-day fortnight, but work from 5:00 am to 1:45 pm.
34 Mr Watts sought and obtained approval for the change from the General Manager, Trevor Canning, and HR Manager, John Quartermaine. A written agreement reflecting the change was drawn up and Mr Corr signed it. In his witness statement, Mr Corr erroneously referred to this as the “1993 Agreement”, but in evidence at trial he corrected this mistake and said it was the 1990 Agreement Trial Transcript, p. 9.
(which it obviously was). Not especially surprisingly, the 1990 Agreement is no longer in existence in hard copy – or, at least, it cannot be found.
35 To the best of his memory, Mr Corr recalled that the 1990 Agreement contained the following provisions:
This Agreement is due to the conversation between Mr Paul Corr and Mr David Watts.
The change in working hours does not interfere with the running of the hospital as [Mr Corr] is not an essential member of staff.
OPH accepts Paul Corr’s decision to change his working hours to between 5:00 am and 1:45 pm. Exhibit 1, [11].

36 From 6 April 1990 until 14 October 2020, in accordance with the 1990 Agreement, Mr Corr worked a 9-day fortnight at OPH, and his hours of work were 5:00 am to 1:45 pm.
37 It is apparent from the evidence that neither Mr Corr nor anybody in management at OPH, or at NMHS or its predecessors, questioned this arrangement until, by an email dated 19 September 2017 to his supervisor, Fabian Edwards, Mr Corr requested another change to his hours. His request on this occasion was to change his working arrangement to an 8-day fortnight, commencing at 5:00 am and finishing at 2:45 pm each day.
38 Mr Edwards referred Mr Corr’s request to Scott WhishWilson, who at the time occupied the position of Principal Human Resources Consultant, based at OPH. Coincidentally, Mr WhishWilson states that he occupied that position “During the period of 19 September 2017 to 1 April 2018”, which suggests that he started that job the very day that Mr Corr sent his email to Mr Edwards.
39 During cross-examination at trial, Mr WhishWilson agreed that the matter of Mr Corr’s 5:00 am start came to his attention because of the request for change from a 9-day fortnight to an 8-day fortnight. Trial Transcript, p. 25.
It is clear that he had not been aware of Mr Corr’s 5:00 am starts prior to this.
40 On 30 November 2017, Mr WhishWilson had a meeting with Mr Corr about his request. In a file note after that meeting, Exhibit 3, Annexure SWW 2.
Mr WhishWilson noted:
I explained that the issue focussed on the need to satisfy the Industrial Agreement which specified an 0600 hours start. That arguably a shift penalty may be payable for the hour between 0500 - 0600 hours unless there was the necessary agreement.
41 In response to Mr WhishWilson’s concerns about ensuring compliance with the Agreement, Mr Corr made it clear that he would “fight” any changes to his start time, “as it hasn’t been an issue for about 30 years”. Exhibit 1, [16(f)]; Exhibit 3, Annexure SWW-2.

42 To assist him in the “fight”, Mr Corr contacted the claimant.
43 A meeting was convened between Mr WhishWilson, Mr Mark Golesworthy (Principal Industrial Relations Consultant for the respondent), Mr Corr and Mr Aaron Mackrell (CFMEU representative) on 15 December 2017.
44 Regarding that meeting, Mr Corr states: Exhibit 1, [23] - [24].

I recall the following from the 15 December 2017 meeting:
a. I agreed that I was not aware that I was entitled to shift penalty rates of pay when I entered the 1993 Agreement (sic);
b. Mr Mackrell sought to discuss an agreement regarding my working hours; and
c. no agreement was formally reached.
On about 1 February 2018, I met with Mr WhishWilson following a request to contact him for an update and recall the following:
a. he was seeking internal approval to make a proposal to resolve the issue with Mr Mackrell; and
b. I was to continue with my current hours of work in the meantime.
45 Under cross-examination at trial, Mr Mackrell said:
It was never intended to be compensated for [Mr Corr’s] early starts, it was a system that worked both for Mr Corr and for the hospital at the time, and continued to work for a long period of time, up until his retirement. [A]s I state in my statement, it was never an intention to make a claim for compensation or - or back pay, if you prefer … but there was also an agreement … an understanding that it would be an informal arrangement, because there was no original … documentation of the position that Mr Corr had reached with previous hospital management… and we wanted (indistinct) … remain for the remainder of the … employment with Metro Health. Trial Transcript, p. 19.

And further:
[T]he understanding was that, through the meeting process that we had on 15 December, I think it was - correct me if I’m wrong, … we made it clear that it was to be maintained as it was and - and that, um, both parties were (indistinct) 10.58.45 essentially (indistinct) 10.58.46 the agreement by allowing it to continue informally and that both parties accepted that, and there would no - be no recourse on either side. Trial Transcript, p. 20.

46 Under cross-examination at trial, Mr Whish-Wilson was asked and answered:
So you then met with Mr Corr and Mr Mackrell, to discuss the situation further, on 15 December 2017 - and that's at paragraph 9 of your witness statement, is that correct?---That’s correct.
And did you reach a formal agreement with Mr Corr or Mr Mackrell from the CFMEU at that meeting?---No. Trial Transcript, p. 26.

47 In an email written shortly after the meeting and sent to Jeffrey Wade, Fabian Edwards and Mark Golesworthy, Mr WhishWilson said (in part):
[Mr Corr] is seeking the continuation of the current long-standing arrangement (undocumented it would appear) which he instigated sometime in early 1990’s, which sees him commence work at 0500 hours without additional compensation for the time 0500-0600 (the usual commencement time for the purposes of ‘ordinary hours’ under the Industrial Agreement is 0600 hours).
The CFMEU is prepared to formalise this arrangement with us in some manner, in order to satisfy the Industrial Agreement going forward, but will seek retrospective compensation (6 years) for the 0500 - 0600 period if we do not agree to the continuation of the arrangement. Exhibit 3, Annexure SWW-5.

48 With respect to the meeting between Mr WhishWilson and Mr Corr on 1 February 2018, Mr WhishWilson’s file note of that meeting is at Annexure SWW-6 of his statement. It says:
Paul dropped by my office this morning in response to my message below. I advised him that Mark and I had agreed as to how we needed to proceed in order to put a proposition back to he and Aaron on the shift commencement time matter - how we might proceed to get the necessary internal approvals to enable us to do this. In the interim, it was “business as usual”.
I said that the ball was currently “in my court” in terms of progressing the matter.
49 That file note corroborates Mr Corr’s understanding of the position as at 1 February 2018 and in light of the meeting of 15 December 2017. By telling Mr Corr it was “business as usual” until such time as he had put a proposal to Mr Corr and Mr Mackrell, Mr WhishWilson was telling Mr Corr to continue his current hours of work, and that is how Mr Corr understood that comment.
50 The foregoing evidence establishes that the understanding of all parties after the meeting of 15 December 2017 was that:
a. Mr Corr would continue to work the same hours he had been working since the 1990 Agreement was instituted, and that he would not receive penalty rates for any hours worked under that arrangement;
b. Although there had originally been a document (the 1990 Agreement) underpinning the arrangement, as at 15 December 2017, the arrangement was informal and undocumented.
51 There is some discrepancy in the evidence as to whether the claimant was only prepared to refrain from legal action against the respondent as long as the agreement remained “informal”. I will return to that issue later in these reasons.
52 For present purposes, it suffices to say that Mr Corr continued to work a 9-day fortnight, commencing at 5:00 am and finishing at 1:45 pm each day, until he ceased work on 14 October 2020.
II(ii) Applicability of agreement clauses and / or policy referring to flexible work
Clause 10.7
53 In his email of 19 September 2017, Mr Corr referred to cl. 10.7 of the Agreement The 2017 Agreement applied at this time; cl. 10.7 of the 2017 Agreement is in identical terms as cl. 10.7 of the 2015 Agreement and cl. 11.7 of the 2019 Agreement.
as the basis for his request to change to an 8-day fortnight, working from 5:00 am until 02:45 pm each day.
54 The respondent also referred to cl. 10.7, suggesting it might provide an answer to the claim.
55 Clause 10.7 states:
Nothing in this Agreement will prevent the Parties from agreeing to alternative arrangements to regulate ordinary hours of work and rostering.
56 I will deal with this shortly and state that cl. 10.7 provides no answer to the claim. Mr Corr is not a party to the Agreement, and cl. 10.7 is not a mechanism for the creation of agreements pertaining to individual employees.
Clause 10.9
57 Nor was Mr Corr’s working arrangement part of a flexitime roster as contemplated by cl. 10.9 of the Agreement. There is no evidence that the respondent had done any of the things required by cl. 10.9 with respect to Mr Corr’s work.
WA Health Flexible Working Arrangements Policy
58 It seems to me that it was possible for the respondent to have recourse to the WA Health Flexible Working Arrangements Policy (Policy), dated 03 May 2015, in order to create a flexible working arrangement (FWA) for Mr Corr, enabling him to work his preferred hours.
59 The Policy emphasises the need for employees to refer to their applicable industrial agreement when applying for an FWA, and that FWAs need to be in accordance with industrial agreements.
60 On one view, that might preclude an FWA enabling an employee subject to the Agreements at issue in this case to commence work at 5:00 am without compensation for working night shift; the reason being that night shift is defined as any shift commencing at or after 1800 hours and before 0600 hours.
61 However, the Policy also places considerable emphasis on FWAs being able to accommodate employees’ personal circumstances, provided any such agreement does not “impinge on organisational outcomes, employee or patient safety”. WA Health Flexible Working Arrangements Policy, 03 May 2015, p. 6.

62 In the view of Fabian Edwards, Mr Corr’s 5:00 am starts were not especially convenient for the respondent. In his statement, Mr Edwards said:
In my view as the Facilities Operations Coordinator, ideally Mr Corr would have commenced work at 7 am for consistency with his work colleagues and to increase productivity. Mr Corr’s 5 am start time was in his interests and did not suit the organisation. Exhibit 5, [9].

63 Notwithstanding this, by 2017 Mr Corr had been permitted to start work at 5:00 am for 27 years, and the respondent and its predecessors had coped with that situation. It follows as a matter of common sense that, while the 5:00 am start time was predominantly in Mr Corr’s interests and not in the interests of the respondent, it cannot have significantly impinged upon organisational outcomes, employee or patient safety.
64 Furthermore, Mr Corr had long-standing and well-understood personal circumstances which had led to the instigation of the 5:00 am start time, and those circumstances persisted from 1990 until Mr Corr’s retirement.
65 On balance, then, and taking into account the Policy’s aim, in my view an FWA created under the Policy would have been an appropriate solution, once the concern about Mr Corr’s early start had been raised.
66 As it happens, it would appear Mr Edwards was of a similar view. In his statement, Mr Corr states: Exhibit 1, [25].

Following the 1 February 2018 meeting, operations coordinator, Mr Fabian Edwards, sent me an Application Working Arrangement Form for flexible working hours, which I did not complete.
67 No explanation is given as to why Mr Corr did not complete the application form for an FWA.
68 Had he completed the form and entered into an FWA, I would have been inclined to find that this represented a formalisation of the 1990 Agreement, under which:
a. Mr Corr was formally permitted to start work at 5:00 am;
b. Mr Corr’s work hours did not constitute night shifts; and
c. Mr Corr was not entitled to shift penalty.
69 I have considered whether there was an implied FWA for Mr Corr on the basis of the 1990 Agreement. Ultimately, I have determined there was not, because the Policy requires formalisation and review of FWAs. At the very least, in my view for the 1990 Agreement to constitute a de facto FWA, somebody at NMHS would have had to turn their mind to its status as such, but nobody ever did.
II(iii) Did Mr Corr work “shifts”?
70 The evidence and materials I have considered thus far establish that during the Period of Employment:
a. Mr Corr worked a 9-day fortnight;
b. On each day of work, Mr Corr started at 5:00 am and finished at 1:45 pm;
c. This pattern of hours was initiated by the 1990 Agreement, which was a document formulated after Mr Corr requested that pattern to accommodate his personal circumstances;
d. As at 2017, the 1990 Agreement could not be located, meaning that Mr Corr’s work pattern persisted on an informal and undocumented basis.
71 Clauses 10 and 12 of the 2015 and 2017 Agreements, and cll. 11 and 13 of the 2019 Agreement, define ordinary hours of work and shift work by reference to rostering.
72 Clause 10/11 provides:
10.1 Ordinary hours of work will be an average of 38 hours per week.
10.2 Ordinary hours of work will be worked as rostered, between 0600 hours and 1800 hours Monday to Friday, in 5 consecutive shifts of 7 hours and 36 minutes (exclusive of meal breaks).
10.3 The roster will be established and maintained by the employer in accordance with the operational requirements of the employer after consultation with the employees to whom the rosters apply.
10.4 The roster will be posted on each occasion at least 48 hours before it comes into operation, in a convenient place where it can be readily seen by the employees concerned.
10.5 Rostered work outside of the ordinary hours of work will attract the relevant shift penalties. Unrostered work will attract the relevant overtime provisions.
73 Clause 10.8/11.8(a) provides for a nine-day fortnight, and again clearly links this work cycle to a roster, as provided for by cl. 10.8/11.8(a)(1), which states in part:
Each employee will be allowed one rostered day off each fortnight in accordance with a roster prepared by the employer showing days and hours of duty and rostered days off for each employee.
74 Clause 12.1/13.1 provides:
Notwithstanding any other provision of this Agreement, shift work may be worked as rostered, but where the shift work is to be regular rostered shift work, the employer will notify the relevant Union party to this Agreement.
75 Under cross-examination, Mr Corr readily accepted that there was no roster, per se, governing his work. He agreed with the proposition that there was no documentary evidence as to his 5:00 am start time, other than the original agreement he signed with David Watts in 1990 (the 1990 Agreement). Trial Transcript, p. 13-14.

76 In his statement, which was accepted at trial as evidence in chief and unchallenged by cross-examination, Fabian Edwards said that there was no roster showing that Mr Corr started at 5:00 am. Exhibit 5, [7].

77 Mr Edwards goes on to state that it was not particularly convenient to the respondent that Mr Corr started at 5:00 am, and that ideally, Mr Corr would have started at 7:00 am, “for consistency with his work colleagues and to increase productivity”. Exhibit 5, [9].

78 The fact that Mr Corr performed the various duties articulated at paragraph [13] of his statement does not establish that he was rostered to be on site at that time, or that the respondent required him to be there.
79 I find that although the respondent certainly made use of the fact that Mr Corr was on site between 5:00 am and 6:00 am by asking him to carry out the kinds of duties listed at paragraph [13] of Mr Corr’s statement, the respondent did not require Mr Corr to be on site between 5:00 am and 6:00 am to perform those duties and that, if he had not been there, the respondent would have arranged for others to perform those duties. Ibid.

80 It is inherent in the concept of shift work that shift workers are required to work shifts and that those shifts are governed by a roster. The Agreements reinforce that view by defining ordinary hours of work and shift work by reference to rostering.
81 The 1990 Agreement was the only basis for Mr Corr’s established work pattern of some 30 years. It was a written document, but it was not a roster “for one”, or at all.
82 Mr Corr was not rostered to work at 5:00 am. He was not required to be on site at that time. Rather, he worked in accordance with a long-standing arrangement which in fact sat outside the parameters of the Agreements. By the time the issue of his 5:00 am start was raised with Scott WhishWilson in 2017, the arrangement was informal and undocumented.
83 Consequently, notwithstanding Mr Corr commenced work “before 0600 hours”, he was not working “night shift”.
84 The fact that the respondent did not create rosters pertaining to Mr Corr in accordance with the above clauses may itself constitute a contravention of the Agreements – but that is not the contravention claimed.
85 The claim for the Night Shift Penalty Contravention is dismissed.
86 Although it is not strictly relevant to the claim that Mr Corr was working night shifts and was therefore entitled to the night shift penalty, the claimant has raised the issue of “disabilities” associated with shift work. That issue is irrelevant in the sense that if Mr Corr had been working night shift, then he would be entitled to succeed in his claim regardless of whether he suffered any inconvenience or “disability” associated with that work.
87 However, as it has been raised, I will address it as follows.
88 It is inherent in the concept of shift work that shift penalties, which usually – as in the case of the Agreements – apply to afternoon shifts and night shifts, are designed to compensate afternoon and night shift workers for the unsociable hours they are required to work in accordance with their roster.
89 It is entirely inconsistent with the following facts:
a. Mr Corr’s original request to start work at 5:00 am;
b. The 5:00 am starts persisted for 30 years;
c. The 5:00 am starts and correspondingly early finish times accommodated Mr Corr’s personal circumstances; and
d. Mr Corr’s stated intention to “fight” any attempt by the respondent to require him to start at 6:00 am,
for the claimant to make the rather bald-faced assertion in its written submissions that Mr Corr ought to be compensated for the “disabilities associated with shift work”.
90 That assertion is not one supported by the evidence, and it should not have been made.
III Annual Leave Contravention
91 Consequent upon my findings as to the Night Shift Penalty Contravention, it is strictly unnecessary to consider the alleged Annual Leave Contravention. This is because the clauses said to have been contravened in the Annual Leave Contravention provide for additional annual leave to “a shift employee” or “a continuous shift worker”. It follows from my finding that Mr Corr was not rostered, that he was not doing shift work.
92 However, I make the following additional observations.
III(i) The relevant clauses
93 Clause 25.2 of the 2015 Agreement, cl. 25.2 of the 2017 Agreement and cl. 26.2 of the 2019 Agreement are in identical terms. They provide:
An additional five days of paid annual leave will be granted:
(a) To a shift employee regularly rostered to work on Sundays and public holidays.
(b) To a continuous shift worker.
Provided that where an employee is rostered in this manner for only part of the 12month qualifying period, this entitlement will accrue at the rate of 3.65 hours of pay for each completed week the employee is continuously so engaged, and this accrual will be in lieu of the leave accrual granted by subclause 25.3. In the case of the 2019 Agreement, subclause 26.3.

94 The claimant alleges contraventions of cl. 25.2 and cl. 26.2 on the basis that the respondent did not at any time during the period of employment grant an additional five days of paid annual leave to Mr Corr. The claimant says that Mr Corr was entitled to the additional five days on the basis that he was a continuous shift worker.
95 The Agreements (cl. 3.5) define “continuous shift worker” in identical terms, thus:
“Continuous shift worker” means an employee who is contracted to work ordinary hours of duty in accordance with a roster where the employee is rostered for afternoon and/or night shift with day shift as defined in Clause 12 - Shift Work In the case of the 2019 Agreement, Clause 13 – Shift Work.
and who may be rostered to work on any of the days of the week that the service operates.
96 As discussed, the Shift Work clauses of the Agreements 2015 Agreement cl. 12.2, 2017 Agreement cl. 12.2, 2019 Agreement cl. 13.2.
contain the following definitions:
(i) “Afternoon shift” will mean a shift which commences at or after 1200 hours and before 1800 hours. Provided that an afternoon shift will not mean a shift which commences at or after 1200 hours and is completed at or before 1800 hours on that day.
(ii) “Night shift” will mean a shift which commences at or after 1800 hours and before 0600 hours.
97 The claimant does not articulate with any certainty, either in its Amended Statement of Claim or in its Outline of Submissions, why Mr Corr should be considered a “continuous shift worker” on the basis of the evidence.
98 The definition of “continuous shift worker” contains the following elements:
a. an employee who
b. is contracted to work ordinary hours of duty
c. in accordance with a roster
d. where the employee is rostered for afternoon and/or night shift with day shift as defined in Clause 12 - Shift Work In the case of the 2019 Agreement, Clause 13 – Shift Work.

e. and who may be rostered to work on any of the days of the week that the service operates (emphasis added).
99 I have found that Mr Corr was not contracted to work ordinary hours of duty “in accordance with a roster”. Even if he had been, it seems to me he did not fulfil the other elements of the definition.
100 There is no evidence (and nor is it asserted) that Mr Corr was ever required to work afternoon shifts. He never commenced work at or after 1200 hours, and he never finished work after 1800 hours.
101 However, due to the use of the conjunction “and/or”, it will suffice for the fulfilment of element (d) above if an employee is rostered for night shift with day shift. I infer from the claimant’s rather vague pleadings and submissions that this is their argument with respect to Mr Corr.
102 The term “continuous shift worker”, along with the requirement that such employee be rostered for afternoon and/or night shift with day shift inform the construction of the definition. The definition pertains to workers who are rostered on a cyclical pattern of shifts in which they are required to work a combination of afternoon and/or night shifts, along with day shifts, on a continuing basis.
103 In my view, the only way Mr Corr could be considered a “continuous shift worker” would be to accept that Mr Corr worked a night shift consisting of one hour each day (between 5:00 am and 6:00 am), and the rest of each day’s work was a day shift.
104 That would be a patently absurd conclusion to draw.
105 Mr Corr worked exactly the same hours every day. He worked them in a continuous block – 5:00 am until 1:45 pm – or “shift”. If the commencement of work before 6:00 am meant he was working night shift, then night shift was all he worked.
106 This accords with the definition of “night shift”, which pertains to a shift which commences at or after 1800 hours and before 0600 hours. The definition does not provide for an end time for a night shift, which means that on a literal reading of the definition, any shift commenced before 0600 – even if it only commences one hour before 0600 – is a night shift. It does not turn into a day shift when the clock strikes 0600.
107 Alternatively, if in fact what Mr Corr was doing was working day shifts with an early start, then that was all he was doing. The point being that on any sensible view, he did not work two species of shift, every day he worked.
108 For that reason, Mr Corr simply did not work the requisite combination of shifts to be considered a “continuous shift worker”.
109 Furthermore, even if Mr Corr had been working “night shift with day shift”, he did not fulfil element (e) of the definition.
110 In the context of the final clause of the definition: “and who may be rostered to work on any of the days of the week that the service operates”, the word “may” does not mean “may or may not be” rostered. Rather, it means effectively “is available to be” rostered “on any of the days of the week that the service operates”.
111 This is the only interpretation available in the context of a hospital, which operates 24 hours a day, 7 days a week, and needs many of its employees to be available on an ongoing basis on any of those days in any given week.
112 It also accords with the definition of “Continuous shifts” in the Employment Factbook, Thomson Reuters online edition, Employment Factbook 487620715 (online at 29 March 2023) Conditions of Employment, ‘Shift work’ [4 – 1320].
which provides:
[4-1320]
Continuous shifts
“Continuous” shift work is where the shifts are worked continuously, seven days of the week, 24 hours per day. This term also covers circumstances where employees are regularly rostered to work on Sundays and public holidays, although not necessarily involving shifts covering the full 24 hours in a day.
113 There is no evidence that Mr Corr ever worked, or was ever required to work, on Saturdays or Sundays.
114 For the foregoing reasons, it would strain the limits of legally sound construction to shoehorn Mr Corr’s working hours into the definition of “continuous shift worker”. He did not fulfil that definition. Consequently, he was not entitled to be rewarded with an additional five days’ annual leave per year. That is a benefit clearly designed to recognise the anti-social and demanding nature of ongoing, variable shift work. Mr Corr was not engaged in that work.
115 The claim for the Annual Leave Contravention is dismissed.
IV Estoppel
116 Commentary on the doctrine of estoppel explains as follows:
Estoppel by representation operates to protect the representee from the detriment that would flow from his or her change of position if the assumption arising from the representation were not maintained. The change of position may consist of a positive act or an omission to do an act that the representee would otherwise have done. The detriment must be proved as a matter of fact. It is not necessary to show pecuniary loss, but the prejudice must be material or real. In the absence of proof that the representee was induced by the representation to act to his or her detriment, there will be no estoppel. LexisNexis, Halsbury’s Laws of Australia (online at 23 March 2023) 190 Estoppel, ‘4 Common Law Estoppel’ [190-260].

117 In view of my findings, it is unnecessary to make a finding as to whether the doctrine of estoppel precludes any part of the claim. However, had I found that the claimant had a valid claim, for the following reasons I would have found it to be estopped from 15 December 2017 onwards.
118 The evidence establishes that the respondent relied upon the representations made at the meeting of 15 December 2017, and the claimant’s subsequent silence.
119 Although a formal agreement was not reached at the meetings of November and December 2017, nor did the claimant indicate any intention to move from the status quo – in fact, it positively represented that it wanted the status quo to remain, and that it had no intention of making a claim for back pay.
120 Mr Whish-Wilson had shown a clear intention to require Mr Corr to commence work at 6:00 am, once he had become aware of a potential conflict between Mr Corr’s 5:00 am start time and the requirements of the Agreements.
121 But due to the claimant’s representations at the December 2017 meeting, the respondent did not follow through with its intention to require Mr Corr to commence work at 6:00 am, but rather, allowed him to maintain his 5:00 am start time. It did so because it had received assurances from the claimant that it would not seek additional pay for Mr Corr.
122 By omitting to change Mr Corr’s start time, the respondent opened itself to the detriment of a claim for shift penalty. It only did so because it had been induced by the claimant to believe that there would be no such claim.
123 Whether or not there was an intention to “formalise” this position is not material to the question whether the respondent was entitled to act upon an assumption arising from the claimant’s stated position, such that it should be protected from the detriment that would flow if that position were not maintained.
124 But the issue of “formalising” the arrangement having been clearly raised on the evidence, I will address it.
125 In Mr Mackrell’s statement, he said “[Mr Corr] and the CFMEU wanted [the] status quo to remain which meant the informal arrangement satisfying both parties would continue” Exhibit 2, [14].
(emphasis added).
126 As it was, Mr Peter Easson, Area Director Facilities Management at NMHS (Mr Easson) did seek to formalise the outcome of the meeting. He did so by sending two letters to the State Secretary of the CFMEU during 2018. Exhibit 4, Annexures PAE-2 and PAE-4.
Neither letter received a response.
127 In his statement, Mr Mackrell asserted that “the attempt to formalise the hours of work was underhanded, not in good faith and as a result no agreement could be reached”. Exhibit 2, [15].

128 At trial, Mr Mackrell added that:
When, um, correspondence was sent through to our office by, I believe, Mr Peter Easson, to formalise the arrangement, that was, um - and our - I understand that all deals - deals were off, and (indistinct) 10.59.04 were off because it went above and beyond what was discussed in that - in that meeting. Trial Transcript, p. 20.

129 Mr Mackrell’s evidence on this issue is so lacking in credibility that it cannot be given any weight whatsoever. He appears to have taken the view that because the parties at the meeting agreed to “informally” maintain the status quo, that any correspondence seeking to put the position in writing must be underhanded.
130 First of all, that does not follow. I fail to see how the formalisation of an agreement that suited Mr Corr and which maintained a status quo that he wanted and, in his own words, was prepared to “fight” for, gave rise to any detriment to Mr Corr or to the claimant.
131 Secondly, it is clear on a plain reading of Mr Easson’s letters that they did not go “above and beyond” what was said in the meeting. The letters were written in light of what had happened at the meeting, in which the CFMEU, via Mr Mackrell, had clearly conveyed its desire for the status quo to remain, and had made plain that additional payment was not required and nor would it be sought.
132 Mr Easson took the view that the arrangement with Mr Corr was effectively pursuant to cl. 10.7 of the Agreement – a stance that Mr Corr himself had taken in his email dated 19 September 2017. The letters asked the CFMEU if it agreed that cl. 10.7 was applicable.
133 I have already indicated that cl. 10.7 was not applicable to Mr Corr’s working arrangement, but that finding does not fortify Mr Mackrell’s characterisation of the correspondence as “underhanded”. Mr Easson was seeking the claimant’s view, which was entirely reasonable in the circumstances.
134 Thirdly, Mr Mackrell’s evidence is inconsistent with the fact that he had corresponded with both Mr WhishWilson and Mr Easson during 2018, seeking clarification of the situation as to Mr Corr’s working hours Exhibit 3, Annexure SWW-8; Exhibit 4, Annexure PAE-1.
- a fact omitted from Mr Mackrell’s statement.
135 I am not sure what Mr Mackrell was trying to achieve by sending this correspondence, other than to elicit a response from the respondent – which was duly sent. To then say that such response was underhanded and in bad faith is to mischaracterise entirely Mr Mackrell’s own interactions with the respondent.
136 After the meeting, Mr WhishWilson summarised the main points of the meeting in an email to Mr Golesworthy, Fabian Edwards and Jeffrey Wade. Exhibit 3, Annexure SWW-5.
In part, that email said:
[Mr Corr] is seeking the continuation of the current long-standing arrangement (undocumented it would appear) which he instigated sometime in early 1990’s, which sees him commence work at 0500 hours without additional compensation for the time 0500-0600 (the usual commencement time for the purposes of “ordinary hours” under the Industrial Agreement is 0600 hours).
The CFMEU is prepared to formalise this arrangement with us in some manner, in order to satisfy the Industrial Agreement going forward, but will seek retrospective compensation (6 years) for the 0500 - 0600 period if we do not agree to the continuation of the arrangement.
137 At trial, Mr Mackrell agreed that the intention of the CFMEU, as indicated by him at the meeting on 15 December 2017, was that Mr Corr would continue to work his existing hours and that there would be no claim for additional pay.
138 However, he vehemently disagreed that he had ever said the CFMEU would be prepared to formalise the arrangement. During cross-examination he was asked and answered:
So Mr Mackrell, you were saying the parties were happy with the 5 am arrangement and they wanted to formalise it in writing?---No, that's incorrect. It was never wanted to be formalised Trial Transcript, p. 19.

And later:
I refer back to the meeting on 15 December 2017, I put it to you that you told Mr WhishWilson that the CFMEU was prepared to formalise the 5 am arrangement in some manner, but would seek retrospective payment of six years between 5 and 6 am if the respondent did not agree to the continuation of the 5 am start time?---Completely incorrect. Trial Transcript, p. 21.

139 As I have said, these answers are inconsistent with the correspondence that Mr Mackrell sent to the respondent during 2018.
140 I reject Mr Mackrell’s evidence and find that:
a. There was an intention on the part of the claimant, via Mr Mackrell, to formalise the status quo, as had been discussed at the meeting of 15 December 2017; and
b. Mr WhishWilson’s note of the meeting was accurate – i.e., the claimant did convey that if the status quo were not maintained, it would commence a claim.
141 The fact that the agreement was never formalised does not diminish the significance and clear intent of the claimant’s representations at the December 2017 meeting.
142 Contrary to Mr Mackrell’s belief that the claimant’s refusal to respond meant “there was no agreement”, the claimant’s (via Mr Mackrell) representations induced the respondent to maintain the status quo and thereby open itself to the potential detriment of legal proceedings. The claimant cannot now be allowed to resile from that position.
143 The respondent was entitled to rely upon the claimant’s representations at the meeting of 15 December 2017, and its subsequent silence, as confirmation that no claim for back pay would be made.
144 To any extent necessary, any claim from 15 December 2017 onwards is estopped.
V Order
145 The claim is dismissed.

E. O’DONNELL
INDUSTRIAL MAGISTRATE