Australian Salaried Medical Officers' Federation (New South Wales) v Hunter New England Local Health District [2018] NSWIRComm 1050

Australian Salaried Medical Officers' Federation (New South Wales) v Hunter New England Local Health District [2018] NSWIRComm 1050

The Commission found that while there is a long-standing practice of paying ED Staff Specialists for public holidays when not rostered to work, neither the Award nor statutory provisions specifically entitle them to payment unless they have ordinary hours on the public holiday. Making a Direction to preserve the practice would, in effect, alter the Award. Thus, only a strong recommendation was made to continue the practice until the Award expires, not a binding direction.

Parties
Notifier: Australian Salaried Medical Officers' Federation (New South Wales); Respondent: Hunter New England Local Health District
Jurisdiction
Australia
Judgment Date
23 August 2018
Procedural Posture
Industrial Dispute / Recommendation Following Failed Conciliation
Outcome
Recommendation made
Legal Topics
Public Holiday Entitlements, Award Interpretation, Roster Arrangements, Conditions of Employment, Shift Work
Industrial Law Public Holiday Entitlements Award Interpretation Roster Arrangements Conditions of Employment Shift Work

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Parties

Australian Salaried Medical Officers' Federation (New South Wales)

Notifier

Hunter New England Local Health District

Respondent

Procedural Posture

Industrial Dispute / Recommendation Following Failed Conciliation

Legal Issues

  1. 1 Whether Emergency Department Staff Specialists are entitled to payment for public holidays when not rostered to work under the Staff Specialists' (State) Award
  2. 2 Whether the removal of a long-standing practice constitutes a reduction of conditions of employment
  3. 3 Effect of Public Holidays Act 2010 and Fair Work Act 2009 provisions on public holiday payment

Ratio Decidendi

The Commission found that while there is a long-standing practice of paying ED Staff Specialists for public holidays when not rostered to work, neither the Award nor statutory provisions specifically entitle them to payment unless they have ordinary hours on the public holiday. Making a Direction to preserve the practice would, in effect, alter the Award. Thus, only a strong recommendation was made to continue the practice until the Award expires, not a binding direction.

Court Disposition

Recommendation made

Orders

  • Hunter New England Local Health District is strongly recommended to continue its long-standing practice of paying Emergency Department Staff Specialists for public holidays when not rostered to work until the Award expires on 30 June 2019.
  • Parties are also strongly recommended to confer at the earliest opportunity to achieve resolution.