Public Health System Nurses' and Midwives' (State) Award [2009] NSWIRComm 129 (18 September 2009)

Last Updated: 25 September 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Public Health System Nurses' and Midwives' (State) Award [2009] NSWIRComm 129



FILE NUMBER(S):
IRC 1277

HEARING DATE(S):
4/5/09, 5/5/09, 6/5/09, 7/5/09, 11/5/09, 14/5/09

DATE OF JUDGMENT:
18 September 2009

PARTIES:
New South Wales Nurses' Association (Applicant)

Director-General, NSW Department of Health (Respondent)

Director of Public Employment (Intervenor)

CORAM:
Boland J President Walton J Vice-President Grayson DP Ritchie C


CATCHWORDS: AWARD - application to vary night shift allowances for nurses - penalty rates - Memorandum of Understanding - leave reserved in award - application of principles in Shift Workers Case - whether case for variation of quantum of allowances fixed by Shift Workers Case - health risks - medical factors - social and domestic inconvenience - patterns of work - casual and part-time employment - permanent night shift - case based on medical factors fails - case based on changed social and domestic inconvenience fails - weekend penalty rates case fails - application to vary night shift allowances dismissed - conditions on dismissal - leave reserved.

LEGAL REPRESENTATIVES
Ms C Howell of counsel
NSW Nurses' Association (Applicant)
Mr I Taylor of counsel
Director-General, NSW Department of Health (Respondent)

Mr A Joseph of counsel
Director of Public Employment (Intervenor)
Crown Solicitor's Office

CASES CITED:
Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384
Shift Workers Case 1972, 1972 AR 633

LEGISLATION CITED:
Industrial Arbitration Act 1940
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: BOLAND J, President
WALTON J, Vice-President
GRAYSON DP
RITCHIE C

Friday 18 September 2009

Matter No IRC 1277 of 2008

PUBLIC HEALTH SYSTEM NURSES' & MIDWIVES' (STATE) AWARD 2008

Application by New South Wales Nurses' Association for variation re monetary rates

DECISION

[2009] NSWIRComm 129

1 Many years have passed since a Full Bench of this Commission or its predecessors have been required to consider that part of the landmark decision of the then Commission in Court Session (Beattie J, President, McKeon, Sheehy, Sheldon and Sheppard JJ) (given under the Industrial Arbitration Act 1940) in the Shift Workers Case 1972, 1972 AR 633 ('the Shift Workers Case'), which concerned the quantum of shift penalties.

2 The Shift Workers Case comes to attention in this matter because the applicant, the New South Wales Nurses' Association ('the Nurses' Association'), in reliance upon a leave reserved provision of the Public Health System Nurses' and Midwives' (State) Award ('the award'), sought to increase the current penalty rates for night shift work in the award, which rates were fixed in 1973 (in a predecessor award, the Public Hospital Nurses' (State) Award) in conformity with that decision.

3 This is not to suggest that the determination in the Shift Workers Case of the quantum of shift penalties in the hospital industry in or about 1972 was regarded as a standard or as providing any guide for the quantum of shift allowances generally, as the Commission in Court Session expressly eschewed that approach in that decision (at 637 and 656).

4 Nevertheless, the Commission in Court Session established in the Shift Workers Case some general principles for the consideration of shift allowances (at 637, 647 and 648). Central to those principles was the notion that shift work, and in particular night shift work, resulted in a real disturbance of an employee's domestic and social life and that there should be special remuneration provided for those factors (Shift Workers Case at 648).

5 The guidelines, so described, permitted penalty rates to be fixed having regard to the type of shifts worked and the nature of the social and domestic inconveniences resulting from shift work performed in an industry. The assessment of the social and domestic factors varied, however, depending on "tastes, habits and patterns of life of the shift workers concerned" (Shift Workers Case at 648). The Commission in Court Session did not have regard to the effect of shift work on the health of employees, as the evidence led in the Shift Workers Case proceedings was, according to the report of that decision, too indefinite to carry weight beyond the identification of minor health problems (which were relevant to the assessment of social and domestic factors) (Shift Workers Case at 648 - 649).

6 The Nurses' Association relied upon the Shift Workers Case to contend that the penalties for night shift fixed by the award should be increased commensurate with the contemporary knowledge of health and safety risks associated with the performance of night shift work, both generally and in particular, for nurses engaged in the public hospital system, and the higher level of social and domestic inconvenience suffered by nurses living and working in the twenty-first century. It was argued, then, that changed circumstances warranted such an adjustment.

7 There can be no doubt that the Shift Workers Case represents a relevant statement of general principle applicable to the assessment of the quantum of shift allowances under awards made within this jurisdiction. Those principles do not act as an impediment to the contentions advanced by the Nurses' Association, as the principles enunciated in the Shift Workers Case were ambulatory in nature and, thus, capable of expanding to embrace changed circumstances or factors. Thus, the principles would allow the consideration of a heightening of the social and domestic inconvenience experienced by shift workers, if those changes could be demonstrated for a particular occupation or industry. The same considerations are applicable to the contentions advanced as to developments in medical knowledge. Whilst evidence of that kind was lacking at the time of the publication of the Shift Workers Case decision, it was implicit in the decision that the Full Bench may have had regard to such considerations, if made out on the evidence, although that same consideration raises a number of additional questions which were not required to be addressed in the Shift Workers Case, but will be discussed below.

8 The application of these principles in this matter raises, however, significant challenges for the applicant, for both legs of its argument. First, the difficulties confronting its contentions based on health and safety grounds are many. In order to make out this aspect of its case, the Nurses' Association must not only demonstrate that developments in medical knowledge prove the existence of elevated risks to health and safety from the working of night shift (whether generally or upon carrying out a particular pattern of work) to those found (or known) at the time of the Shift Workers Case, but that the risk has actually materialised for nurses or a particular class of nurses in the public hospital system and that an increase in the night shift allowance under the award, as claimed, would eliminate or ameliorate those risks.

9 To these considerations may be added the question as to whether it would be appropriate, as a matter of principle, to have regard to such health and safety issues in the assessment of the shift allowances fixed in the award. We propose to briefly address that particular question now before turning to the second difficulty confronting the Nurses' Association's application.

10 The resolution of that question was, in our view, comprehensively given by the Full Bench of this Commission in Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 ('Operational Ambulance Officers') at [171] - [186] as follows:

[171] A question which then follows is whether the existence of risk or experience of an unsafe or unhealthy work environment in a particular occupation or industry may constitute, of itself, a proper foundation to conclude that the award does not provide fair and reasonable conditions of employment for the purposes of s10 of the Act or, for that matter, a special case.

[172] This Commission, and it predecessors, have long had regard to considerations of health and safety when setting terms and conditions of employment for workers. In Re Government Railways and Tramways (Construction) Award [1926] AR 92 at 94, Commissioner Piddington stated:

The principle to be followed in all cases by the Commission is not that unhealthy conditions be allowed to continue and a palliative sought in reduced hours, or a solatium in increased wages, but that the organised service of medical and engineering knowledge ought to be employed to abolish, as far as possible, the unhealthiness of the conditions.

[173] In Re Cold Storage and Ice Employees (Cumberland) Award [1940] AR 191, the Full Commission expressed the view that, in making awards, the effect of the terms and conditions of work on the health of employees was a paramount consideration. The Full Commission stated (at 196):

We take the view that, while the company should be encouraged to introduce new methods which are calculated to improve the quality of the product and increase the efficiency of the plant, every precaution should be taken that the health and well-being of the employees are safeguarded. Progress in industrial efficiency should not be discouraged, but when such progress might only be attained by causing some harm to the employees concerned in the industry, then the paramount consideration is the welfare of the employees.

[174] It is notable in the present context that the endeavours by the Commission to ensure that the terms and conditions of employment do not have detrimental effects on the health and safety of employees have included making adjustments to the hours of work of the employees and the provision of additional annual leave.

[175] In Re Glass Makers (Australian Window Glass Proprietary Ltd) Award (No 2) [1939] AR 164, for example, Ferguson J considered an application for the variation of an award in consideration of injury to the health of employees which might have arisen as a result of exposure to dust. In the circumstances of the case, his Honour concluded (at 177):

In any event, I am of the opinion that the increase of rates of pay is not a proper method of dealing with a health hazard if such be found to exist. The proper remedy for such, if established, seems to me to be either reduction of hours or extension of annual leave, or both, or, best of all, the minimising or removal of the cause of danger of ill-health.

[176] It should be pointed out that, at various times, legislation expressly conferred authority on the Commission to reduce the ordinary working hours of any employees engaged in work which was prejudicial to health: see, for example, s63(1)(e) of the Industrial Arbitration Act 1940.

[177] A number of recent decisions of the Commission have remarked upon the continued relevance of considerations of health and safety when setting fair and reasonable conditions of employment under s10 of the Act. In Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award [2000] NSWIRComm 172; (2000) 100 IR 447, the Full Bench of the Commission considered an application to vary the relevant award to make provision for sleepover arrangements for workers employed in the Department's group homes. One of the issues raised concerned whether the sleepover arrangement compromised the safety of workers and, particularly, whether such arrangements were consistent with the Department's obligations under the Occupational Health and Safety Act 1983.

[178] The Full Bench stated (at [64]):

It is a matter for the Department to determine what level of care is required to be provided to disabled people living in a group home, in accordance with the statutory and other responsibilities which it has to those clients. The Department meets those obligations by employing staff to perform the necessary work. What must therefore be determined in these proceedings, where issue is being taken as to the requirements made of the employees who are employed to perform sleepover work, is what award provisions are required to ensure that the relevant conditions are 'fair and reasonable'.

This includes consideration of the safety concerns which were raised. As was observed in the unanimous decision of the High Court in Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Limited [1987] HCA 28; (1987) 163 CLR 117 (at 135):

Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter".

A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both of these matters.

[179] After considering the evidence concerning sleepover arrangements, the Full Bench inserted a clause in the award to ensure that assessments of the appropriateness of the group home, the residents and staff are conducted before sleepover arrangements are introduced.

[180] In Re Pastoral Industry (State) Award (2001) 104 IR 168, the Full Bench considered an application for the variation of the award following the removal of numerous provisions of the "counterpart" federal award pursuant to the award simplification process. By way of contrast to the restrictions placed on the federal Commission's power to make an award, the Full Bench observed that the discretion under s10 of the Act to make an award setting fair and reasonable conditions of employment encompasses considerations of occupational health and safety. The Full Bench stated (at [31]):

By way of contrast, we note that there is no restriction under the Act upon award conditions dealing with occupational health and safety matters, as the recent decision of the Full Bench in New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award [2000] NSWIRComm 172; (2000) 100 IR 447 makes plain. The Full Bench of the Commission there awarded detailed provisions directed to ensuring the safety of employees in a particular working environment. It appears that such an award could not have been made by the AIRC under the WR Act. The Federal Award had, of course, traditionally been directed (as has the existing State Award) to significant occupational, health and safety issues.

[181] Finally, a recent decision of Marks J in Transport Industry - Cash in Transit (State) Interim Award [2001] NSWIRComm 220 concerned an application for a new award raising, in part, safety considerations raised by the transportation of cash by security workers in non-armoured vehicles. His Honour observed (at [11]):

There can be no doubt that this Commission has both jurisdiction and power to deal with working conditions in industry, especially those conditions which are directed to the safety of employees. This is despite the concurrent application to the employment relationship of the Occupational Health and Safety Act and, indeed, in many cases other legislative provisions. In addition, the employer's common law duty of care will operate concurrently with any provisions contained within an industrial instrument and with the regime created by occupational health and safety legislation.

[182] His Honour discussed, at some length, the standard of health and safety measures for which it may be appropriate to provide in an award. His Honour stated that an award was intended to operate concurrently with the obligations of an employer under the Occupational Health and Safety Act and the absolute liability under that Act was not appropriate for inclusion in an award. His Honour stated (at [15]):

In my view it is not appropriate for an industrial tribunal to adopt such a regime. Criminal codes are intended to reflect standards imposed by the state involving sanctions for non-compliance. Those sanctions are enforced through state institutions. Industrial instruments are designed to regulate the activities and conduct of employers and employees in those capacities. The regime created through industrial instruments (whether or not to resolve specific industrial disputes or having wider application) is designed to reflect contemporary community values and standards applying to the performance of work by employees for employers. It is not unusual for a number of regimes to apply to different facets of the same relationship or indeed the same parts of a relationship. For example employment relationships intersect with health and safety legislation, a plethora of taxation legislation and a diverse range of legislation including environmental laws, the use of motor vehicles and the like.

[183] Rather, in making the award, his Honour indicated that he proposed to have regard to whether a risk of injury to employees was reasonably foreseeable and, if so, whether there were means reasonably available to the employer to avoid that risk.

[184] No suggestion was raised that the Commission lacked the jurisdiction to make an award varying hours of work or the amount of annual leave in consideration of the health and safety of the employees to be subject to the award. The authorities cited above indicate that it is appropriate for the Commission to have regard to considerations of the health and safety of employees when making an award setting fair and reasonable conditions of employment. This approach is consistent with the approach which has been adopted by this Commission over many years and reflects ongoing concern to eradicate, where possible, threats to the health and safety of employees in the workplace.

[185] One consideration that may be relevant to the exercise of the Commission's discretion to make an award in light of considerations of health and safety is the existence of parallel obligations under other legislation, particularly the Occupational Health and Safety Act. In our view, the existence of general obligations on employers under other legislation, or under the common law, should not operate to limit the Commission's jurisdiction to make awards which also address health and safety concerns. The focus of an award is clearly distinguishable from the duties imposed by the Occupational Health and Safety Act. Generally speaking, an award is intended to prospectively provide for the general conditions of employment for employees in an enterprise, occupation or industry. An award, by its nature, lays down relatively specific conditions to be provided in the future by employers to employees working in a particular industry. In contrast, the Occupational Health and Safety Act imposes an absolute duty on an employer to ensure the health and safety at work of all its employees. Among other things, the duties under the Occupational Health and Safety Act require an employer to take a continuously pro-active approach to issues relating to health and safety. This duty will inevitably extend beyond any requirements which can be laid down in an award: see Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (at 467).

[186] Thus, one matter to which the Commission should properly have regard when determining what are fair and reasonable conditions of employment is the health and safety of employees. In doing so, the award is not seeking to replicate or diminish the much broader obligations of an employer under the Occupational Health and Safety Act. Many measures that will be necessary for an employer to take in compliance with its obligations under the Occupational Health and Safety Act will not ordinarily be apt for inclusion in an award. Because an award may apply to all employees in an industry as a common rule, there may be limits to the extent to which award provisions requiring measures to be adopted in relation to health and safety can address the circumstances of an individual employee. It would, for example, be difficult to make provision in an award for the detailed systems of work to be adopted in a particular workplace. However, if there are measures of the nature of conditions of work having general effect, which are applicable for an award and which are available to address threats to the health and safety of employees covered by an award, provision should be made in the award for those measures to be adopted. Further, we have little doubt that an applicant will, where it has made out a case for the making or variation of an award based on occupational health and safety considerations pursuant to s10 of the Act, ordinarily demonstrate that case has sufficient attributes to bring the matter under the special case principle.

11 In the present matter, those principles translate to a requirement that the applicant demonstrate that an increase in the night shift allowance would directly ameliorate, in the manner discussed in Operational Ambulance Officers, a proven, actual risk arising from the performance of night shifts by nurses (or a class of them) in the public hospital system.

12 As to the second component to the applicant's case concerning the social and domestic inconvenience caused by the working of night shift, it was necessary for the Nurses' Association to demonstrate that the inconveniences experienced by night shift workers had worsened since the Shift Workers Case. This would require the demonstration of, on the evidence, new, additional or aggravating factors of inconvenience such as would constitute a proper basis for increasing the "special remuneration" for night shift established as a result of the Shift Workers Case.

13 Further, the Nurses' Association was, as it accepted, required to satisfy the Special Case Principle with the wage fixing guidelines established by the Commission in the State Wage Case [2007] NSWIRComm 118; (2007) 163 IR 253 in order to bring and establish its claim. However, it follows, in our view, from the nature of the case brought by the Nurses' Association, as we have described it, that a Special Case would be made out if the applicant established the elements of its case based on the principles in the Shift Workers Case as, by its very nature, there would have been established a case "out of the ordinary": see Operational Ambulance Officers at [166] - [168] and [186].

14 We propose, after reviewing some background considerations, to first analyse the case for the Nurses' Association based on health factors and then deal with the broader question of the contemporary social and domestic inconvenience caused by the performance of night shifts as worked by nurses in the public hospital system in New South Wales.

BACKGROUND AND THE APPLICATION

15 From 15 January 1973, a new Public Hospital Nurses' (State) Award was made which varied the penalty rates for shift work and weekend work for nurses engaged in public hospitals so as to conform to the shift allowances established for hospital employees under the Shift Workers Case. As earlier mentioned, the award was the successor to the Public Hospital Nurses' (State) Award.

16 In a Memorandum of Understanding ('the MOU') between the New South Wales Department of Health ('the Department') and the Nurses' Association, an agreement was reached, for the period 1 July 2008 to 30 June 2010, to alter, inter alia, the wages and conditions of all employees covered by the award. At the time of the making of the MOU, the shift allowances therein were those conforming with the Shift Workers Case.

17 The MOU contained a 'no extra claims' provision which operated for the life of the agreement, but permitted the making of applications in accordance with the Wage Fixing Principles established by this Commission from time to time in relation to two subject matters identified in cl 15 of the MOU. Only one of those provisions is presently relevant. Leave was reserved to make claims for "increases to the night duty penalty rate as set out in the claim served by the Association on 15 February 2008".

18 By the present application, the Nurses' Association makes a claim, inter alia, to vary the current night shift allowances in the award. The application, as pressed by the Nurses' Association, consisted of two claims with respect to night shift penalties. The Nurses' Association sought:

i) an increase to the penalty rates for night shift in cl 15(i) of the award from 15 per cent to 25 per cent;

ii) the introduction of a new 25 per cent night shift penalty for weekend shifts commencing at 4 pm and before 4 am to be paid on top of existing weekend penalty rates (see cl 15(x)).

19 This decision concerns those claims.

INCREASE IN NIGHT SHIFT ALLOWANCE

MEDICAL FACTORS

Health Risks and the Shift Workers Case

20 As earlier mentioned, we accept the proposition advanced by the Nurses' Association that the Full Bench in the Shift Workers Case did not take into account in any substantial way the adverse consequences to health and safety of night shift work in reaching its decision and certainly not medical evidence of the scope and kind adduced in this case.

21 In the Shift Workers Case, some evidence was led in relation to health and safety issues associated with shift work. However, it was either found to be inconclusive or relevant only to the demonstration of minor health issues or the social inconveniences of shift work. The evidence in the Shift Workers Case did not establish or even purport to determine the risks to health occasioned by working night shifts. In fact, there was no claim by the union parties to those proceedings that shift work lead to major health problems. The Full Bench stated (at 649):

A distinction must also be drawn between problems created by shift work and cases where it has an oblique influence on problems, which would exist in any event. The medical evidence on these questions is inconclusive and case studies (mainly overseas) have produced surprisingly inconsistent results, but we think it can be said safely that regular shift work is more likely to lead to minor health problems and their domestic and social consequences than regular day work.

Apart from questions relating to health, which are too indefinite to carry much weight in assessing compensation, the disturbance to domestic and social life is overall very real and calls for adequate compensation.

22 As to the nature of minor health problems, the Full Bench stated (at 649):

It was established that it causes minor health problems in some workers largely arising from fatigue and changes in the normal patterns and physiological rhythms of life. One aspect particularly stressed was the problems relating to sleep and their consequences. A sleep debt can be created in some shift workers, which must be made up later often on the rostered day off and during the turn on day shift. It would appear that the problems relating to sleep and certain other factors arising from the disturbance of the normal patterns and rhythms of life sometimes produce stress in the shift worker, which has an adverse effect on his personal, domestic and social life.

Minor physical consequences for some shift workers manifest themselves in headaches, nervous complaints, loss of appetite, gastro-intestinal disturbances and irritability.

Submissions on Medical Factors

23 Ms C Howell, of counsel, who appeared for the applicant, in summary, made the following oral and written submissions in relation to the medical factors:

1. The rates for shift penalties have remained unchanged and have not been the subject of review or analysis since 1973;

2. Shift allowances fixed by the Shift Workers Case are no longer sufficient for nurses because there had been major developments in the scientific knowledge of both physiological and the psychological effects of shift work and night shift work since 1972 which demonstrate that the allowance set in the Shift Workers Case underestimates the detriment occasioned from working shift work;

3. The Full Bench in the Shift Workers Case had limited evidence of the effects of shiftwork on health and found it was "too indefinite to carry much weight in assessing compensation". The level of medical knowledge is now more extensive and detailed. Additional factors have been identified as to the increased risk of disease and other medical conditions from working night shifts which should be taken into account when fixing the night shift allowance;

4. There was an increased risk of developing adverse health problems and conditions if a certain incidence of night shifts were worked over a certain period of time. In respect to some risks, they become statistically significant after a certain period of time which ranges from five years to 30 years. Key empirical studies have shown that shift workers have a higher risk of developing serious medical problems including cardiovascular disease, breast cancer, gastro-intestinal disorders and reproductive health problems and are, thereby, exposed to the risk of injury to their health and safety. Until the employer can abolish the risk, there is no reason why the risk should not be recognised in remuneration;

5. In particular, the evidence demonstrated the following risks from working night shifts:

(i) There is ample, reliable, expert evidence from Professor Grunstein to show that exposure to circadian disruption and sleep deprivation as a by-product of night or rotating shiftwork poses a significant medical risk. The risk increased with repeated exposure. Nurses working night shifts have reduced sleep hours which lead to a range of medical conditions including diabetes and gastro-intestinal disorders;

(ii) Women who work night shifts have an increased risk of cardiovascular disease. The expert evidence showed there was an increased risk in cardiovascular morbidity for nurses working continuous shift work for six years or more;

(iii) There was a link between working shift work and an increased risk of contracting some forms of cancer. A number of studies showed a higher risk of cancer relating to night work. In particular, one study showed that there was a statistically significant risk after 30 years of night shift. Shiftwork involves circadian disruption and has been ranked on the second tier used to grade carcinogenicity to humans.

6. The ageing workforce makes the issue of night shift particularly significant both from a health and safety and workforce perspective. An increase in the shift allowance would encourage younger nurses to undertake night shift rather than older nurses, causing a redistribution of work with two consequences. First, older nurses would work fewer night shifts and, secondly, there would be a much greater scope for nurses to exercise their own personal preferences for working night shifts. Older nurses, who are most at risk, would have a greater degree of flexibility in the number and configuration of shifts and, thereby, alleviate the chance of longer serving and older workers performing night shift work. It was, therefore, submitted that an increase in the night shift allowance will ameliorate the health risks associated with working night shifts.

24 Mr I Taylor, of counsel, who appeared on behalf of the respondent, made, in summary, the following oral and written submissions:

1. The Department accepted that the knowledge of shift work and its potential to be a risk factor in respect to some medical issues has developed since 1972. It contended, however, that there was not overwhelming evidence of very significant health consequences associated with the performance of shift work. The diseases identified by the medical evidence are relatively uncommon and an increase in risk, although not insignificant, does not mean shift workers will suffer such adverse health outcomes. It was conceded that the significance of the risk increases for nurses who continue to work night shifts over a certain period of time. However, the significance of that risk is to be understood in a context where only a small percentage of nurses will work continuous night shift work for an extended period of time.

2. The Nurses' Association was unable to show that nurses in New South Wales were, in fact, working the requisite pattern of work and, thereby, being exposed to those risks. The Department submitted that Professor Grunstein's expert evidence must be qualified. A number of the variables, which may affect the health risks associated with working nightshifts, were ones that Professor Grunstein could not differentiate because the studies in question did not specifically consider the relationship between the variable and risk. The variables included:

(a) Whether it made a difference if the shifts were rotating shifts or permanent shifts;

(b) The length of the shifts;

(c) The amount of break between shifts and their sequencing;

(d) The age of workers;

(e) The degree or choice over which nurses worked night shifts;

(f) The climate or environment of work; and

(g) The time of day/night that the nightshift worked.

3. The Department accepted that Professor Grunstein's report cited two studies, both of which examined a link between mortality and sleep time. However, these studies did not provide a sound basis to show there was a direct link between short sleep and mortality generally, nor short sleep and cancer or cardiovascular death. The studies tendered by the Nurses' Association, therefore, had little relevance to nurses in New South Wales working night shifts;

4. It was conceded that there is an increased risk of developing cardiovascular morbidity and mortality for nurses working continuous night shifts for six or more years. In oral submissions, it was further conceded that women who work night shifts have an increased multivariate adjusted relative risk in respect of years for cardiovascular mortality. It was also accepted that the length of time engaging in continuous shift work is a significant risk factor for nurses;

5. The Department conceded that some studies showed working continuous night shifts over an extended period might, in some limited circumstances, increased the risk of some forms of cancer. However, studies showed no significant increase in breast cancer, except for those who have worked continuous shift work for over 30 years. As to colorectal cancer and endometrial cancer, any noticeable risk only arose when working continuous shift work over an extended period of time. Again, this risk was only significant after working 15 to 20 years of continuous shift work. Shift work has been listed by the World Health Organisation International Agency for Research as something, which is "probably carcinogenic". It is not placed in group one, which lists agents that have found to be carcinogenic. It has been placed in group two because some studies have found a link between shift work and an increased risk of cancer. Overall, there is inconclusive evidence to demonstrate that nurses working night shifts is a factor which significantly increases the risk of cancer;

6. The Nurses' Association failed to establish or identify any significant health issues arising for nurses working night shifts, in relation to diabetes, weight gain, pregnancy and gastrointestinal disorder.

General findings as to Medical Factors

25 As a general observation, we accept the expert evidence adduced by the Nurses' Association that exposure to circadian disruption and sleep deprivation, as a by-product of night or rotating shift work, in certain circumstances poses a significant health and safety risk for workers and, in particular, nurses engaged in such work. On the evidence led in these proceedings, the Nurses' Association demonstrated that the working of night shifts of a particular incidence and duration does increase the risk of physiological and psychological harm to nurses in the New South Wales public hospital system.

26 The evidence which sustains these findings is the expert evidence of Professor Grunstein and the empirical studies relied upon by him.

27 Professor Grunstein relied upon three types of study to support his conclusions as to the "links between sleep, shift work and the risk of developing disease". Those studies were:

1. Sleep deprivation studies which involved healthy research volunteers being deprived of sleep and then examining any short-term physiological changes that could trigger disease;

2. Cross-sectional epidemiological studies which involved an anaylsis of questionnaires that provided information about habitual sleep duration, other life factors and the existence of a particular disease or group of diseases in large populations at one point in time;

3. Longitudinal epidemiological studies of which, the most significant were the 1976 Nurses' Health Study and the 1989 Nurses' Health Study II.

28 Professor Grunstein explained the last category as the most powerful type of evidence that long-term sleep habits were associated with the development of numerous diseases. Professor Grunstein described these Nurses' Health Studies as follows:

In this regard, there is compelling data derived from very robust, long term studies known as the Nurses’ Health Study and Nurses’ Health Study II. Significantly, the strength of the data derived from these studies lies in the fact that the Nurses’ Health Study provides over 30 years of data drawn from a very large same occupation group. The studies are among the largest investigations into risk factors for major chronic diseases in women ever conducted. In 1976, the Nurses’ Health Study (NHS) cohort was established when 121,700 female married nurses, aged 30 to 55 years and residing in 11 large U.S. states, completed a mailed questionnaire on their medical history and lifestyle. Every 2 years, follow-up questionnaires have been sent to each participant to update information on potential risk factors and identify newly diagnosed illnesses. The protocol for the study was approved by the Human Research Committee of Brigham and Women’s Hospital. Response rate to follow-up in this group has regularly exceeded 90%. The Nurses’ Health Study II is a prospective cohort study that began in 1989, when 116,671 registered female U.S. nurses of ages 25 to 42 years were enrolled. Since 1989, members of the group have completed biennial mailed questionnaires that include items about their health status and known or suspected risk factors for cancer. Response rates to questionnaires in this group have averaged 90%.

29 The Nurses' Health Studies were not tendered in the proceedings. However, one of the studies that was relied upon by Professor Grunstein gives some further description of the Nurses' Health Study. In Kawachi I, Colditz G, Stampfer M, Willet W, Manson J, Speizer F, Hennekens C, "Prospective Study of Shift Work and Risk of Coronary Heart Disease in Women" (1995) 92 Circulation 3178 ('Kawachi 1995'), the Nurses' Health Study was described as "a search for information about risk factors for cancer and CHD, including current and past smoking habits and past personal history of myocardial infarction (MI), angina, cancer, diabetes, hypertension and high serum cholesterol levels".

30 The following is a list of the principal studies relied upon by Professor Grunstein in reaching his conclusions:

· Bøggild H, Knutsson A, "Shift work, risk factors and cardiovascular disease" (1999) 25 Scand J Work Environ Health 85;

· Hublin C, Partinen M, Koskenvuo M, Kaprio J, "Sleep and mortality: a population based 22-year follow-up study" (2007) 30 Sleep 1245;

· Hublin C, Partinen M, Koskenvuo M, Kaprio J, "Sleep and mortality: a population based 22-year follow-up study" (2007) 30 Sleep 1245;

· Knutsson A, "Methodological aspects of shift-work research" (2004) 21Chronobiol Int 1037;

· Knutsson A, Hallquist J, Reuterwall C, Theorell T, Akerstedt T, "Shiftwork and myocardial infarction: a case-control study" (1999) 56 Occup Environ Med 46;

· Patel SR, Ayas NT, Malhotra MR, White DP, Schernhammer ES, Speizer FE, Stampfer MJ, Hu FB, "A prospective study of sleep duration and mortality risk in women" (2004) 27 Sleep 440. ('Patel 2004');

· Pinherio SP, Schernhammer ES, Tworoger SS, and Michels KB, "A prospective study on habitual duration of sleep and incidence of breast cancer in a large cohort of women" (2006) 66 Cancer Research 5521 ('Pinherio 2006');

· Schernhammer ES, Speizer FE, Stampfer MJ, Hu FB, "A prospective study of sleep duration and mortality risk in women" (2004) 27Sleep 440 ('Schernhammer 2004');

· Schernhammer ES, Laden F, Speizer FE, "Night- Shift work and risk of colorectal cancer in the Nurses’ health study" (2003) 95 J Natl Cancer Inst 825. ('Schernhammer 2003');

· Schernhammer ES, Laden F, Speizer FE, Willett WC, Hunter DJ, Kawachi I, Colditz GA. "Rotating night shifts and risk of breast cancer in women participating in the nurses’ health study" (2001) 93 J Natl Cancer Inst 1563 ('Schernhammer 2001');

· Steenland K, Fine L, "Shift work, shift change, and risk of death from heart disease at work" (1996) 29 Am J Ind Med 278;

· Viswanathan AN, Hankinson S, Schernhammer ES, "Night shift work and the risk of endometrial cancer" (2007) 67 Cancer Res 10618;


31 The mechanisms by which disrupted sleep may contribute to various adverse health affects, by reference to an analysis of the body's circadian rhythms, were described by Professor Grunstein, as follows:

Rhythms of a person, synchronized to daytime activity by the light-dark cycle and social routine, must undergo phase readjustment when the individual is forced to adhere to a new activity-sleep schedule due, for example, to night work. The central and peripheral oscillators will follow the new schedule, however, not immediately but over a certain number of transient cycles to adapt to the changed phase of the environmental synchronizer. During this time of adaptation, there is disruption of the usual sequence and biological ordering of the numerous rhythmic events with some clock genes responding faster than others. The result is an internal phase desynchronization within the oscillator mechanism. The circadian oscillators in the anterior region of the SCN undergo a faster time adaptation than those in the posterior portion. The time adaptation of the central oscillators in the hypothalamus in the brain precedes that in the peripheral tissues, which follow at a slower pace and are transiently lost to the hypothalamic control. This process adds to the internal desynchronization within the individual oscillators along with a desynchronization between central and peripheral oscillators.

The overall effect of a phase shift of this nature is that the individual involved experiences an alteration at several levels of its internal time organization during the transitional period of adjustment. For example, the top physical efficiency that is typically observed in the afternoon, becomes delayed to the night time. The pressure to sleep, which is also the expression of a circadian rhythm may be high during the environmental period requiring alertness and efficiency, and may be low during the time reserved for rest, resulting in insomnia and non-restorative sleep. During the period of time adaptation, this external and internal desynchronization of the human organism leads to a functional disturbance of its time organization (‘dyschronism’) with a loss in performance efficiency plus a set of symptoms similar to those of jet lag. These symptoms have been shown to predispose the individual to a heightened propensity of accidents in the work place.

This physiologic process occurs every time the rotating shift worker engages with their new shift commencement time. Each circadian phase shift:

(1) affects all metabolizing and proliferating cells in the individual.

(2) leads to transient internal desynchronization on a molecular basis within the individual cellular oscillators.

(3) results in desynchronization among the cellular oscillators in the SCN and in the peripheral tissues.

(4) takes time for complete adjustment and occurs over several transient cycles.

(5) varies by variable and function in the amount of time required for phase adaptation and with regard to cell and tissue proliferation may extend over several weeks.

A circadian phase shift exerts its effects upon molecular cell and tissue physiology and occurs over an extended period during which the time sequence of the biologic rhythms of many variables is different from that found in ‘normal’ day–night adapted individuals, i.e., the circadian time organization which is thought to be linked to optimal function. It is thought that the changes in the neuroendocrine web controlling cell and tissue proliferation during the internally desynchronized period of phase adaptation may permit or even promote growth of abnormal cell proliferation in target tissues that find themselves out of phase with their usual controlling influences.

32 In particular, Professor Grunstein, identified the relationship between night shift work and sleep disturbance as follows:

Night and shift workers must adhere to a routine that is out of phase with the local day and night and social milieu. Sixty to seventy percent of workers on rotating shifts complain of problems with sleep disturbance or sleepiness, and general fatigue is more frequently reported by shift workers than day workers. The night and rotating shift worker is commonly exposed to environmental sunlight at the ‘wrong times’ – before and/or after the work shift, and during days off, and he/she must contend with a social environment which is tied to the usual day/night schedule of his/her daytime active family members and friends. Although the unusual (early morning, late evening, or night) shifts may lead to a disruption of the worker’s circadian time organization, complete adjustment will seldom be achieved, even in employees on a ‘permanent’ night shift. Even after prolonged duration of time on this shift, only a minority of night workers will show phase adaptation of their circadian system to the nocturnal activity pattern. The majority either show no change in most of the variables examined or show a rhythm disruption with some intermediate phase alterations. Shiftworkers exposed to rapid shift rotations (3–4 days) maintain a daytime activity-oriented, circadian time organization, resulting work being done when cognitive and physical performance is poor. Intermediate or slow rotations (e.g., weekly) may more often lead to a phase alteration but without the possibility of a successful completion of phase adaptation by the end of the rotation.

[<img src="/ircjudgments/2009nswirc.nsf/files/2009_NSWIRComm_129_Pic00.jpg/$file/2009_NSWIRComm_129_Pic00.jpg" alt="[2009] NSWIRComm 129 - Pic00">]

Disease Mechanism in Shift Workers.

(Graphic courtesy Knutsson A. Shift work and coronary heart disease. Scand
J Soc Med 1989;44(Suppl.):1–36.)

From an ergonomic viewpoint of chronobiology, this type of rotation is expected to lead to major disruptions of the circadian time organization. The internal dysynchronization of the phase relation between the multitude of circadian rhythms which is of functional importance, can lead to shift work intolerance. Adaptation to the shift schedule will not take place since the shift time of most variables, including the sleep-activity cycle, exceeds the duration of the shift. The alteration of the circadian time organization with internal desynchronization between the rhythms characterizing the different levels of physiologic integration together with a decrease in sleep time by 2–4 hours in the average shift worker can lead to health issues. Recent studies report that an individual has a 25% increased mortality risk if they achieve 6 hours or less of sleep per day, compared with normal sleep length. Observation has been reported in nurses. During the 14 years of this study (1986-2000), 5409 deaths occurred in the 82,969 women who responded to the initial questionnaire. Mortality risk was lowest among nurses reporting 7 hours of sleep per night. After adjusting for age, smoking, alcohol, exercise, depression, snoring, obesity, and history of cancer and cardiovascular disease, sleeping less than 6 hours or more than 7 hours remained associated with an increased risk of death. The relative mortality risk for sleeping 5 hours or less was 1.15 (95% confidence interval [CI], 1.02-1.29) for 6 hours, 1.01 (95% CI, 0.94 -1.08), compared with 7 hours, 1.00 (reference group). See Appendix 1 for reproductions of a number of tables elaborating relative risk and confidence intervals noted throughout this paper.

33 The mortality risk referred to by Professor Grunstein in these observations needs to be seen in a particular context.

34 First, Professor Grunstein's observations, in this respect, derived from two studies: the Finnish twin cohort study and the Patel nurses' health study. These studies did not examine shiftwork, per se, but persons self-reporting average sleep per night. Further, the tables in the Patel study related to the relative risks of death and sleep duration and, in particular, the effect on the significance of the risk when various co-morbidity factors, such as hypertension, diabetes and shift work were taken into account.

35 Secondly, the studies on sleep length and morbidity were not studies on which Professor Grunstein relied for the conclusions in his report. Rather, he utilised that information to show the mechanisms by which shift work adversely affected the health of workers engaged in the same.

36 Thirdly, the Patel study showed no increase in risk of cancer or cardiovascular death associated with having five or less hours sleep. However, it was found in the Finnish twin cohort study that there is an increased risk of mortality from short sleep, but no significant risk of mortality associated for women who stated that they did not sleep well. Older women with short sleep did not have a statistically increased risk of mortality.

37 Fourthly, and most significantly, as the Department submitted, the medical and empirical studies disclosed the existence of a risk, or perhaps an increased risk (over other forms of shift work), arising from exposure to night shift work. The evidence does not purport to show a direct correlation between the performance of night shifts and the onset of an injury or deprivation to health in the sense that the performance of night shift over a given period will necessarily result in disease or a medical condition. Rather, there is a material, significant and serious risk of such injury or detriment to health or safety arising from the performance of such work when carried out in a particular sequence and with a particular frequency or duration. Thus, the nature and seriousness of the risk will vary depending upon the nature of the shift work, the extent of the sleep deprivation and the incidence and duration of the night shift work. The nature of the risk to health will fluctuate depending upon the prevalence of these factors and other factors such as the age of the worker performing night shifts.

38 It is necessary, therefore, in order to more closely understand the actual risk, to consider when the risk of a particular character may arise in conjunction with a particular set of variables or factors. This is particularly important in the present matter, where the applicant seeks to demonstrate that nurses are exposed to a risk to health from working a particular pattern of night shifts. We will, therefore, look more closely at the nature of some of the more significant risks before turning to any evidence as to the exposure of nurses to those risks in the public hospital system in New South Wales.


Particular Findings as to Medical Factors


Cardiovascular Morbidity and Mortality


39 As to the relationship between exposure to shift work and cardiovascular disease, Professor Grunstein relied primarily on Kawachi (1995) which was based upon the Nurses' Health Study cohort. This study surveyed 79,109 women, ranging from 42 to 67 years old, who were free of diagnosed coronary heart disease and stroke. Kawachi (1995) assessed the "total number of years during which the nurses worked rotating night shifts" (with each nurse working at least three night shifts per month in addition to day and evening shifts). During four years of follow-up (1988 to 1992), 292 cases of incident coronary heart disease (248 non-fatal and 44 fatal coronary heart disease) occurred.

40 The study found an increased risk in cardiovascular morbidity for those working continuous shift work for six or more years, but the study found no significant increased risk in their first six years. The risk persisted after adjustment for cigarette smoking and a variety of other risk factors. However, Professor Grunstein conceded in cross-examination that it could not be concluded from the Kawachi study that nightshift work necessarily caused women to have cardiovascular disease. Rather, this evidence demonstrated that nurses who worked night shifts had an increased multivariate adjusted relative risk, in respect of years worked, for cardiovascular mortality. There was no significant contradiction in the evidence to this conclusion and we accept it.

Cancer

41 Professor Grunstein gave evidence as to a link between working shift work and an increased risk of contracting some types of cancer. Schernhammer (2001) was the most significant study in this respect and focussed upon the linkage between shift work and the risk of breast cancer.

42 Schernhammer (2001) studied a large cohort of nurses drawn from the first Nurses' Health Study (1976). Schernhammer (2001) showed there was a moderate increase in breast cancer risk among the women who worked 1 to 14 years or 15 to 29 years on rotating night shifts. The risk was further increased among women who worked 30 or more years on night shifts. A further study by Schernhammer (2006) examined data drawn from the Nurses' Health Study II (1989) and found an elevated relative risk of breast cancer. In that further study, women who reported more than 20 years of rotating night shifts had a 79 per cent greater risk of breast cancer compared with women who had never worked this schedule. The study concluded that women who work on rotating night shifts with at least three nights of shift work per month, in addition to days and evenings in that month, appeared to have an increased risk of breast cancer after extended periods of working night shifts, being 20 years or more.

43 There was, however, conflicting evidence as to the relationship between sleep deprivation and cancer. A study drawn from the Nurses' Health Study by Pinherio (in 2006) concluded that sleep duration does not predict breast cancer. Dr Patel, in "Sleep - An Affair of the Heart", states:

If sleep duration is associated with certain causes of death but not others, it would suggest that specific pathways do exist. In fact, the authors found for an association between sleep duration and deaths from cardiovascular disease but not association with cancer deaths. This fits well with prior research from the Nurses' Health Study where sleep duration predicts incident coronary events but not breast cancer.

44 Professor Grunstein's evidence, in respect of other forms of cancer, being colorectal, endometrial and prostate cancer, suggested that a risk arose after a considerable period of time working continuous shiftwork, that is, 15 years and over.

45 Evidence from the World Health Organisation International Agency for Research on Cancer ranked "shiftwork that involves circadian disruption" on the second highest of five tiers used to grade exposure and carcinogenicity to humans. Shiftwork that involved circadian disruption had been classed "probably carcinogenic to humans". However, it has not been placed in group one, which lists agents that have been found to be carcinogenic. It was placed in group two because there was insufficient evidence demonstrating that nurses working night shifts was a factor which significantly increased the risk of cancer. Professor Grunstein, in cross-examination, conceded that his opinion was not too dissimilar from the World Health Organisation position on risk factors for cancer, in particular breast cancer. It should be noted that Professor Grunstein stated, in this respect:

The postulated mechanism for the increased incidence of cancer is related to circadian rhythm disruption which results in suppression of nocturnal melatonin secretion secondary to light exposure (an inhibitor of melatonin synthesis and secretion) during night-time work. Melatonin counteracts tissue proliferation both in breast and in colonic tissues. It has well-established oncostatic (inhibition of tumour cell proliferation) properties in experimental in vitro and in vivo models that can be studied in their own right as a potential mediator in disease development or through administration of synthetic melatonin as an adjuvant therapy for light - or melatonin - associated diseases. In addition to melatonin’s direct oncostatic properties, the endogenous melatonin signal may thwart cancer development and growth via indirect mechanism’s involving its ability to enhance immune activity and mitigate against stress induced immune suppression.

Although a number of factors other than melatonin are also likely to be perturbed by long-term night duty, a number of animal studies have confirmed research suspicions. There is generally consistent evidence in support of the hypothesis that altered lighting can play a role in breast cancer causation, and animal experiments on the effects of light exposure during the dark spans, including constant light, have in some studies shown an increased growth of transplantable murine liver tumorsand human breast cancer xenografts.

Although the suppression of endogenous melatonin through light exposure is one of the possible mechanisms for this increased risk and growth of tumours, the effect of light is quite complex in its neuroendocrine, metabolic and chronobiologic-organizational consequences. In addition, other recent experimental evidence shows that the internal desynchronization, itself, in experimental animals leads to an accelerated take and growth of transplantable tumours in mice. The International Agency for Research on Cancer based their decision on the fact that suppression of melatonin production, and deregulation of circadian genes are both involved in cancer-related pathways. Inactivation of the circadian Period gene, Per2, promotes tumour development in mice, and in human breast and endometrial tumours, the expression of PERIOD genes is inhibited. In animals, melatonin suppression can lead to changes in the gonadotrophin axis. In humans, sleep deprivation and the ensuing melatonin suppression lead to immunodeficiency. For example, sleep deprivation suppresses natural killer-cell activity and changes the T-helper 1/T-helper 2 cytokine balance, reducing cellular immune defence and surveillance.

46 The evidence as to the linkage between the performance of night shift work and various forms of cancer is sufficient to enable us to conclude that there is a risk of the development of these diseases from the performance of night shift work although only after an extended period of working night shifts. Further, the evidence here establishes a more tenuous link between shift work and these diseases and must necessarily result in a more tentative conclusion.

Conclusion : Risks Associated with Working of Night Shifts


47 Professor Grunstein stated there was a correlation between the number of night shifts worked per month and the risk of negative health consequences. In particular, Professor Grunstein gave evidence that three or more night shifts per week would trigger the risk factor. To these observations, Professor Grunstein indicated the correlation is defined by the incidence of work. That is, the risk to health and safety from working night shifts is defined by the number of night shifts worked within a period of time. Having regard to the cases put before us, including the empirical studies, that evidence must be accepted.

48 We consider that the Nurses' Association has demonstrated the existence of a correlation between the working of night shifts and the risk to health and safety. However, the relationship is dependent upon the number of shifts worked by nurses over varying periods of time and, further, will vary depending upon the nature of the disease or medical condition under review. Other variables such as the age of the worker are important.

Evidence as to Patterns of Work

49 In her written submission, Ms Howell gave a summary of what she described as "undisputed facts". That summary was largely based on the evidence of Ms Stephanie Shean. We agree with the summary of the evidence, and thereby will extract it in full below:

(a) A significant number of services in public hospitals operate 24 hours per day, 7 days per week. These include Emergency Departments, Intensive Care Units, High Dependency Units, and Medical and Surgical Units. Accordingly, these facilities require a significant number of nurses to work night shifts or rotating shift patterns which include night shifts.

(b) About 20% of all clinical shifts worked by nurses in the public health system are night shifts.

(c) The most common shift pattern for 24 hour facilities is three shifts per day. A typical pattern is a morning shift commencing between 6.30am and 7.30am, an afternoon shift commencing between 2.30 and 3.30pm, and a night shift commencing between 9.30pm and 10.30 pm. Each shift will generally span 8.5 hours (including 30 minute unpaid meal break).

(d) In a number of facilities which operate three shifts per day 10 hour night shifts are available, and this option is being expanded to more facilities over time, subject to funding availability. It is not clear from the evidence how many nurses presently have this option.

(e) In some areas 12 hour shift systems are also available by local agreement under clause 5 of the current award. This generally has the effect that nurses work fewer shifts in total but a higher percentage of night shifts.

50 The Nurses' Association also provided a summary of the evidence given by senior nurses as to shift pattern in their units. This added to the depth of understanding of the pattern of work. We again will set out this submission, but will need to make some observations about some parts of it before travelling further. The written submission was as follows:

(a) All registered nurses working in the 24 hour facilities are normally required to work some nightshifts, with the possible exception of inexperienced nurses (due to skill-mix issues);

(b) Within the framework of the requirement for all nurses to work some night shifts, nurse preferences as to sequencing of shifts etc were accommodated by the nurse manager witnesses to the extent possible, but this was not always fully achievable;

(c) The number of nightshifts required of nurses on a rotating roster varied, but generally was about 3-5 per four week roster cycle for full time employees, and proportionately less for part time employees.

(d) Nightshifts are generally extremely unpopular with most nurses. Most nurses preferred not to work night shifts at all;

(e) Given the necessity of night shifts, a minority of nurses preferred to work permanent nightshifts, mainly but not exclusively to achieve certainty and predicability for childcare arrangements (as opposed to the unpredictable nature rotating shifts);

(f) A smaller minority of nurses preferred to work permanent night shifts to any other shifts, commonly on a part time basis;

(g) Nurses frequently leave their employment or become casual employees to avoid the night shift requirements;

(h) Sick leave is more common on night shifts than on other shifts;

(i) Weekend night shifts are the most difficult of all night shifts to fill; and

(j) Unplanned absences on night shifts were extremely difficult to fill, compared to day and afternoon shifts. Frequently no suitable casual or agency staff can be found and permanent staff had to work overtime to cover shifts.

51 Mr Taylor, in his written submissions, made the following submission as to permanent night shifts:

It is now a feature of ward arrangements that there is a subset of nurses, often part-time, who prefer to work on a permanent nightshift basis rather than rotate. Such nurses relieve other nurses from the obligation to work as many nightshifts. This was not a feature of rostering in 1972. It follows that there is less nightshifts being worked now by those on rotating shifts than in 1972. Association witnesses gave evidence that as a consequence of such permanent nightshift nurses the other nurses work less nightshifts. Instead of five or six nightshifts per 28 days in some units nurses are on rotating shifts working one to three nightshifts per 28 days.

52 We accept that there has been a change since 1972 in that nurses more consistently work permanent night shifts. However, the final sentence in Mr Taylor's submission, in this respect, gives a false impression because the number of permanent night shifts or workers working under those arrangements are very much in the minority in the public health system. In their evidence, Ms Donna Garland, Midwifery Unit Manager at Bankstown Hospital, and Ms Gail Hanger, Nursing Unit Manager at Bowral Hospital, stated that there were "extremely few" nurses who prefer permanent night shift work to permanent day shift work, although it was accepted that there were some nurses who preferred to work permanent night shifts for family reasons and childcare issues. Nurses, in their respective units, work different patterns of night shifts each month and have a varying number of staff available to work night shifts.

53 Mr Taylor further submitted that there were less night shifts being worked now by nurses on rotating shifts than in 1972. However, this would depend on a number of variables, including the number of nurses working permanent night shifts (a small minority) and the total number of night shifts being worked by nurses in New South Wales.

54 The Nurses' Association's submission referred to in paragraph 52(g) above states that nurses frequently leave their employment and take up casual and part-time employment rather than doing night shifts. This submission is consistent with the evidence led in these proceedings.

55 Ms Hanger's evidence was that nurses move into part-time and casual employment or leave the profession altogether because they find rotating shifts "too hard". Ms Hanger stated:

One nurse was forced to retire early on medical advice that she could not work night shifts.

56 Mr Grant Isedale, a registered nurse and midwife at Sydney South West Area Health Service, stated in examination in chief that:

Most nurses want to work casual shifts to avoid the night shift requirements. One of the main factors that influence nurses to change from permanent employment to casual pool employment is a desire to get away from working on a rotating roster system, particularly night shifts.

57 There was no countervailing evidence in this respect, and we accept the Nurses' Association's contention that night shift work is extremely unpopular and it is common for nurses in the public health system to avoid working night shifts by switching to casual or part-time employment.

58 The only other consideration relevant to patterns of work is the process referred to by the Department of "self-rostering" or flexible rostering. We note that this consideration does have some significance for the consideration of the social and domestic inconvenience of working shift work, and is referable to some of the expert psychological evidence (which we will address in the discussion of social and domestic inconvenience). It is unnecessary to say anything further about the topic at this stage of our decision.

59 The Nurses' Association has successfully established that a particular class of nurses working in the public hospital system do work, on a regular and compulsory basis, the number of shifts which would attract the risks referred to in Professor Grunstein's evidence and the empirical studies relied upon by him. Those nurses are, generally, those working within those parts of the public health system which demands a 24 hour, seven day operation and are, thereby, required to perform night shifts in order to discharge the Department's obligation to the public health system of New South Wales.

60 The fact that a larger proportion of nurses are working permanent night shift does not alleviate the concerns raised by that fact. Firstly, that consideration has no real bearing upon the claim because the Full Bench in the Shift Workers Case did not have regard to significant medical factors in coming to their conclusion. Secondly, the evidence of permanent night shift or self rostering arrangements does not deny the fact that a significant proportion of nurses are required, as a necessary part of their work, to work night shifts with such regularity as would potentially attract the risk.

61 However, that is not the end of the matter. Another significant variable in determining risk is the duration over which the requisite number of shifts are worked. In this respect, we consider the Nurses' Association has failed to prove that the nursing population in the public health hospital system is, in fact, working night shifts for a duration which would expose them to the risk in the matter described in the expert evidence.

62 The evidence led in these proceedings did not disclose the duration over which nurses covered by the award performed the requisite number of night shifts which would attract the risk of particular diseases (noting that some of them have a much longer duration of onset than others). Hence, there is not evidence before the Full Bench which would enable us to draw a conclusion that the risk has or will materialise for the whole or part of the population of nurses covered by the award. It was for the applicant to make out that part of its case, and it has not done so. This is not merely a matter of proof. The issues raised are serious and required an exacting proof.

63 It is not only the absence of evidence as to the overall population of nurses which is also absent here. There is countervailing evidence which would indicate that nurses may withdraw from the performance of night shifts at various times in their careers because of factors of age or exasperation with the working of rotating shift arrangements. Thus, there is evidence of nurses reverting to part-time or casual work in order to avoid the working of night shift. The existence of permanent night shift arrangements further complicates the question, as it is less clear on the evidence how permanent night shifts may impact upon the health of nurses, although, clearly, the evidence demonstrates that there are risks associated with the performance of permanent night shifts. The same observations follow for 10 and 12 hour shifts.

64 The absence of evidence as to the overall pattern of work of nurses, and the questions raised in the evidence as to what might be the duration worked by nurses in the system must result in us declining the application so far as it is based upon health and safety risks.

65 The Nurses' Association did indicate that the increase in the night shift allowance might have the effect of causing younger nurses to do more night shift work and thereby offsetting the number of night shifts that might be performed by nurses who had been undertaking such work over a longer period or doing so at an older age. The same observation follows for 10 and 12 hour shifts.

66 The failure to establish the duration of which nurses (required to work night shifts) did so significantly undermines this contention. In any event, the contention must be also rejected because there is a singular lack of evidence before us which would enable such a conclusion to be reached. In short, the Nurses' Association has not proved that an increase in the shift work allowance would result in a redistribution of night shift in such a way as would alleviate any risks associated with the performance of such shifts.

67 Two final observations should be made before moving to the issue of the social and domestic inconvenience of shift work. We should not be taken by the aforementioned observations to have implied by our findings that, had the omitted evidence been produced, it would necessarily follow that some adjustment to the shift allowance in the award would result. Consistent with the principles in Operational Ambulance Officers, such a conclusion could only be reached if it could be demonstrated that the variation to the allowance, if justified as a matter of merit on the evidence, would actually significantly reduce the risk. The contention advanced by the Nurses' Association as to a redistribution which may be brought about by an increase in the allowance may fit that criteria, but, on the evidence before us, it must be considered to be largely speculative.

68 Further, we should not be taken, by these observations, as underrating the seriousness of the potential risks that may arise from the working of certain patterns of night shifts by nurses in the public hospital system. Our observations are directed, as they must be, purely to the questions raised by the application before the Commission. The issues of health and safety raised in these proceedings, of course, have a wider dimension outside the purview of the Commission as presently constituted. Those matters squarely arise for attention under the Occupational Health and Safety Act 2000. At this stage, we will confine our remarks to observing that it is a matter of concern that the Department has not undertaken a risk assessment in relation to the performance of night shift work by nurses in the public hospital system.

SOCIAL AND DOMESTIC FACTORS

Shift Workers Case

69 The Full Bench in the Shift Workers Case considered that the key factor to be taken into account in remunerating shift work was the "social and domestic inconvenience" involved in shift work. A number of elements were identified, in this respect. The Full Bench stated (at 648);

References were frequently made in the evidence of shift workers in this case to restrictions caused by shift work on sporting and general social, private and group activities including family outings. Particular emphasis was also placed on the difficulties created in family relationships both as between husband and wife and with children. As to children not only was it stated that the pleasure of their company is often unduly restricted, also that the opportunity for proper supervision and help in their development is lessened. As to wives, the evidence was that problems can arise through more frequent separation causing loneliness and a feeling of neglect. Both the social and sexual relationship between husband and wife can be disturbed and rendered less satisfactory. As to the shift worker himself, it was claimed that there is often a requirement to adapt and adjust himself to changes in the hours at which he is required to work and this again varies greatly in its effects with the type of shift system being worked. Many witnesses claimed that they had real problems associated with endeavouring to sleep in daylight hours (night shift) or through going to bed late (afternoon shifts) and these problems were particularly aggravated in summer and where the home is in a noisy area. Irregular meal times were also mentioned as an unattractive feature of shift work. A few witnesses spoke of additional expense to due to additional meal times within the family circle and the need to travel when public transport facilities are limited. But no attempt was made to quantify this inconvenience.

70 However, the Full Bench found that the impact of these elements varied with the types of shift being worked (permanent or rotating) and the method of rotation. The social and domestic factors also varied according to the "taste, habits and patterns of life" of the shift worker concerned. The Full Bench stated (at 648):

Many persons cannot adapt themselves physically or socially to shift work at all. In general they tend to drift away from it as the opportunity offers. But the process of natural selection is far from absolute. There are many who through economic necessity or the nature of their skills or aptitudes or the job opportunities in the area in which they live (e.g Newcastle or Wollongong) remain shift workers although not suited to shift work.

71 On the other hand, the Full Bench noted some positive aspects of shift work (at 648):

There are some compensations for many in shift work particularly for young people without family responsibilities and sometimes for married people without children. Some like it because it makes easier the transaction of personal business, e.g., banking, seeing doctors and dentists and shopping and in many cases longer periods of days off in sequence are possible, Shift work also often gives a greater opportunity to pursue personal hobbies. Hence a balanced view must be taken.

72 However, the Full Bench also observed (at 648-649):

If it was not paid at a higher rate, there is little doubt that shift work would be acceptable only to a distinct minority.

The considerations we have mentioned are not new and generally have been taken into account in the past when shift work remuneration has been fixed.

Apart from questions relating to health, which are too indefinite to carry much weight in assessing compensation, the disturbance to domestic and social life is overall very real and calls for adequate compensation.

73 In relation to the fixed shift system and rotating shift system the Full Bench placed in ascending order of inconvenience and disability (at 650) as follows:

Fixed Shift System:

(a) day shift (no inconvenience or disability);

(b) an early morning shift, say, commencing between 4 am and 6 am;

(c) afternoon shift;

(d) night shift.

Rotating or alternating shift system:

(a) day shift (minor inconvenience and disability);

(b) early morning shift;

(c) afternoon and night shift. (The former has more social disturbances and the latter more medical problems, e.g., arising from difficulties with sleep.)

74 The Full Bench regarded the fixed night shift as being "more onerous" than the rotating or alternating night shift because of its effect on domestic and social life, even though the evidence suggested that it is "less onerous" in relation to possible minor health problems.

Submissions on Social and Domestic Factors

75 In summary, the applicant, made the following oral and written submissions in relation to social and domestic factors.

1. As mentioned earlier, it was contended that the rates for shift penalties have remained unchanged and have not been the subject of review or analysis since 1973;

2. There is a higher level of social and domestic inconvenience suffered by nurses living and working in the twenty-first century. Shift allowances fixed by the Shift Workers Case are no longer adequate for nurses and undervalue the detriment occasioned from working shift work;

3. The understanding of the social and physiological consequences of shift work has advanced since 1972. It was the expert evidence of Dr Rajaratnam, that shift work resulted in adverse behavioural, emotional and cognitive outcomes for the children of shift workers. This issue was not identified in the Shift Workers Case. The adverse outcomes for children of shift workers is a significant detriment to be taken into account in assessing the impact of shift work;

4. Further, Dr Rajaratnam gave evidence that the following adverse social and domestic inconveniences were associated with shift work:

(i) Negative psychological symptoms including depression, unhappiness, tension, anxiety, hostility and confusion;

(ii) Increased disruption to marital relationships associated with elevated risk of poor marital quality and increased probability of separation and divorce;

(iii) Conflict between work and non-work life with reduced time available for participation in social and leisure activities with family, friends and children;

5. Although social disadvantage was identified and acknowledged in 1972 as deriving from the performance of shift work, the extent of such disadvantage is now greater than was then understood. It was submitted that Dr Rajaratnam's evidence and the literature he relied upon identified with more precision the adverse consequences of non-standard hours than the evidence referred to in the Shift Workers Case. Doctor Rajaratnam went further than the conclusions of the Full Bench in identifying with specificity and certainty the adverse outcomes associated with shift work. The problems associated with shift work would also exacerbate any shortage of nurses.

76 In summary, the Department made the following oral and written submissions:

1. The Department accepted that there was more information available in 2009 as to the social and domestic inconvenience arising from shift work than at the time of the Shift Workers Case. However, it rejected the proposition that the actual adverse social effects suffered by shift workers had significantly changed since 1972. In fact, the negative social and domestic effects on nurses working night shifts had decreased;

2. The key factors which were identified by Dr Rajaratnam were really the same social and domestic disabilities considered in the 1972 case;

3. The expert evidence of Dr Rajaratnam was very broad and was, therefore, applicable to shift workers generally and not just nurses. Nurses had no greater social and domestic difficulties than other shift workers working similar shifts. In fact, the disabilities are more likely to be less because of the degree of control they exercised over the shifts worked by them. It was noted Dr Rajaratnam was not prepared to make any comparison with other occupational groups;

4. The Department conceded that there is now better information in respect of the impact on children (for that sub-set of workers who work night shift while they have young children). However, that domestic disability was more than offset by other factors impacting upon social and domestic inconvenience, the most significant of which were:

(i) The advent of self-rostering and individual preferences which, by their nature, had the effect of substantially reducing social and domestic inconvenience;

(ii) The significant change in society since 1972 to one where flexible working hours and shift work was common;

5. It should be noted that Dr Rajaratnam gave evidence that having some control over work schedules can mitigate the adverse effects of non-standard work hours. It must follow, therefore, that the introduction of self-rostering, with consequential reduction in social and domestic disturbance, was a significant ameliorating factor compared to the position considered by the Full Bench in 1972. Nurses can now indicate a preference as to when they want to work night shifts. This resulted in a considerable ameliorating effect compared to the rostering system in place in 1972;

6. Doctor Rajaratnam's evidence and the studies he relied upon were not specific or, in some cases, relevant to nurses. The evidence given was general in nature, and not capable of quantifying the extent to which certain factors may affect the social and domestic disabilities of nurses. In particular, Dr Rajaratnam was unable to say to what extent the number of shifts worked, the sequencing of shifts, or the pattern of shifts (rotating or permanent) would impact upon the disabilities he identified.

Evidence


77 Doctor Rajaratnam conducted a literature review and from it he derived the following findings and observations from those studies.

Psychological symptoms and well-being

78 In reliance on Bohle P & Tilley A, "The impact of night work on psychological well-being"(1989), Ergonomics, Volume 32, (No 9), 1089, and other studies, Dr Rajaratnam opined that shift work was associated with psychological symptoms, including depression, unhappiness, tension, anxiety, hostility and confusion. Another study found non-day shifts may be a risk factor for relationship conflict. Furthermore, some studies showed adverse psychological symptoms were related to negative cardiovascular and endocrine outcomes and higher frequency of medically certified sickness absences from work.

Social life and marital quality

79 Shift work was reported as affecting social life, by having a negative effect on the quality of marriage and increasing the work-family conflict.

Work and non-work life conflict

80 Shift work often introduced a conflict between work and non-work life. It was evident that there was a reduced opportunity to focus on personal well-being and to participate in social and leisure activities with family and friends when working night shifts.

81 An Australian study by Lushington W, Lushington K & Dawson D, "The perceived social and domestic consequences of shift work for female shift workers (nurses) and their partners" (1997) 13 J Occup Health Study - Aust NZ 461, assessed 50 female nurse shift workers and their partners on the subjective impact of shift work on social and domestic life, and the perceived psychological, social and physiological impact on well-being. Both the nurses and their partners found that shift work caused a moderate to high amount of disruption to all measures of social and domestic life.

82 In particular, shift work was perceived to be highly disruptive to maintenance of family relationships, joint social lives and was a major contributor to family conflict. For those with children, both the nurses and their partners, reported significantly reduced contact time with their children, with over a third reporting adverse and detrimental effects on the well-being of their children.

Behavioural, cognitive and health outcomes for children

83 In reliance on a number of studies with relatively large samples, it was observed that behavioural problems and difficulties in children were associated with non-standard work hours of parents.

84 Cognitive outcomes may be affected by parental engagement in shift work. Studies of the impact of shift work on parental behaviours produced mixed results. In one study, parents working non-standard work schedules reported worse family functioning, depressive symptoms and less effective parenting. In addition, it was found that their children were more likely to have social and emotional difficulties, partially mediated through family relationships and parent well-being. In contrast, in other studies, non-standard schedules were not found to be related to the amount of time parents spent with their adolescent children and mothers' work schedules (day vs. evening shifts) were unrelated to their parenting behaviours.

Control of the work schedule and flexible work hours

85 Studies showed that increased control of the work schedule by an employee and flexible working hours were reported to reduce the adverse impact on health and psychological well-being. However, it should be noted that these studies did not suggest that an increased control eliminated the impact of shift work. In fact, one of the studies excluded shift workers from the analysis. In another study it was reported that high levels of perceived schedule control were associated with lower adverse family and health outcomes. Doctor Rajaratnam opined that a large sample of non-day and rotating shift workers, representing a broad spectrum of occupational groups, was required in order to confirm these findings.

General Conclusions in Expert Evidence

86 Notwithstanding, that a number of variables are likely to moderate or influence the relationships and effects observed in the above studies, Dr Rajaratnam found converging evidence from multiple studies which showed that non-standard work hours were associated with adverse effects on psychological health and social and domestic arrangements. He concluded that non-standard work hours are specifically associated with:

· Negative psychological symptoms, some of which are reported to be related to negative cardiovascular and endocrine outcomes and a higher frequency of medically certified absences from work;

· Increased disruption to marital relationships associated with elevated risk of poor marital quality and increased probability of separation and divorce;

· Conflict between work and non-work life with reduced time available for participation in social and leisure activities with family and friends, including reduced contact time with children;

· Negative impact on children, with reports of higher emotional or behavioural difficulties, poor outcomes for cognitive development and elevated body mass index.

87 In cross-examination, Dr Rajaratnam indicated that he was not able to draw comparisons between nurses and other occupational groups working shift work. His evidence was as follows;

Q. Do you agree with this proposition: That there is no reason top (sic) think that negative social and domestic effect from working shift work are any greater for nurses than for other shift workers working similar shift patterns?

A. That the adverse outcomes are no greater for nurses than for other occupational groups working shift work is that the question?

Q. Yes?

A. So: I think it is possible that there are particular occupational factors as we discussed earlier that may, moderate that relationship and I am not. I think it is difficult to make a broad statement to say that nurses are. The effect is likely to be better or worse in nurses. I guess it needs to be said, compared to what? It is difficult to make the statement saying nurses compared to everyone else. I am not able to answer that question.

88 Further, Mr Taylor, in cross-examination, put to Dr Rajaratnam that the question of changes in social and domestic life since 1972 had shifted because of the existence of a "24/7 society". The evidence was as follows:

Q. You haven't in your report attempted to identify that there are areas of social and domestic disadvantage that were not known in 1972 but are known now?

A. I have referred to a considerable body of literature that has been published since 1972 so, implicitly that is new knowledge that was not available in 1972.

Q. But, that new knowledge has, can I suggest, not changed the fundamental knowledge if I could put it this way. That firstly it was known in 1972 that shift work caused a range of social and domestic disabilities was it not?

A. It was, reported in 1972 that shift work was associated with adverse psychological and social outcomes. I agree with that yes.

Q. Do you accept the proposition that notwithstanding greater knowledge since 1972, there is nothing that you have considered in your report to suggest that there is great (sic) social and domestic disabilities now for shift workers than were exhibited for shift workers in 1972?

A. I would say that there is a greater understanding of what these disadvantages or outcomes are today than we knew in 1972.

89 With regard to lay evidence, the Nurses' Association called a number of witnesses who experienced similar social and domestic inconveniences to that identified in Dr Rajaratnam's report. Each of the nurse witnesses gave evidence of the difficulties associated with shift work and variously outlined the following adverse effects:

· Substantial disruption to family activities, both for the nurses and for other family members;

· Disruption to social networks and activities;

· Sleep disruption ranging from moderate to extreme;

· Extreme fatigue and associated irritability;

· The experience of ‘micro-sleeps’ when driving home or the experience of having no recollection of driving home;

· Health problems including depression, nausea and vomiting;, minor infections; tachycardia, headaches and asthma which were caused or exacerbated by night shifts;

· Lack of exercise due to fatigue and general lethargy;

· Irregular and poor eating habits.

Conclusion : Social and Domestic Inconvenience Factors

90 We do not consider that, on the evidence in these proceedings, the negative social and domestic consequences of working night shifts, such as the effect on social life and marital quality and the work/non-work life balance, has worsened since the Shift Workers Case. There may be some differences in emphasis deriving from a more sophisticated analysis of these problems, but not such measurable and significant differences as would warrant a departure from the allowances fixed in or in consequence of the Shift Workers Case.

91 We think a more compelling case has been made out in relation to the effects of night shift work on children but accept Mr Taylor's contention that this factor must, in terms of the fixation of compensation, be counter-balanced against work improvements associated with self-rostering and the adjustment to social mores and arrangements commensurate with the emergence of more flexible working hours and a wider and more flexible access to community and retail services after 1972.

92 However, we do consider that the applicant has established the existence of a firm link between night shift work and various psychological symptoms which are much more serious than the minor medical issues discussed in the Shift Workers Case. The extent of these negative consequences, however, at least in the more severe form discussed by Dr Rajaratnam, was not disclosed by the evidence. Anecdotal evidence given by nurses of adverse physiological or psychological reactions showed a great variation between minor and major complaints. In many respects, a similar deficiency exists in this area to those found in relation to other medical factors. In the final analysis, we do not consider that a safe basis has been established on the evidence before us to depart from the allowances arising from the Shift Workers Case grounded on these factors.

CONCLUSION : APPLICATION TO VARY NIGHT SHIFT ALLOWANCES

93 Many of the adversities associated with the performance of night shifts identified in these proceedings were common to those found by the Full Bench in the Shift Workers Case. However, the expert evidence in these proceedings, when considered in the light of the various empirical studies and evidence from senior nurses bearing upon such matters, established the existence of adverse factors affecting nurses working night shifts not known or found in the Shift Workers Case.

94 However, this medical evidence does not establish the existence of such adverse medical consequences, per se, but, rather, a pronounced risk which exists in varying degrees, depending upon the incidence of shift work by nurses in the public hospital system. There is no evidentiary basis in these proceedings for a firm conclusion to be drawn as to the actual impact on nurses, either generally or for particular classes; let alone a basis to sustain an increase in the allowances for night shifts founded on this consideration.

95 Well established principle in this jurisdiction would permit an adjustment to the allowance, if such an adjustment actually ameliorated a risk to health and safety. Despite the strength of the theoretical underpinnings of the applicant's medical case, and the plain, adverse effects on nurses from working night shift, no such criteria was met in this case.

96 There was insufficient warrant to vary the allowance on the grounds for the social and domestic inconvenience of working night shift, as there was insufficient demonstration of change from the factors already taken into account in fixing the allowance in the Shift Workers Case.

97 This conclusion is put beyond doubt when consideration is given to the flow-on consequence and significant economic consequences associated with the claim. There can be no doubt, in our view, that the grant of any part of the claim of the Nurses' Association on non-medical grounds would represent a departure from the Shift Workers Case, and establish a clear basis for higher shift allowances in other awards in the health and public sectors.

98 Should the application be simply dismissed? We think not. It is a matter of considerable concern that there has not been a risk assessment of night shift work for nurses in the public hospital system. Furthermore, the strength of the expert evidence of psychological and physiological harm that may derive from working extended periods of shift work weighs against a simple rejection of the case, at least on public interest grounds.

99 We consider that the better course is to dismiss the application upon two conditions. First, we shall retain leave reserved for the Nurses' Association to further press its current application for night shift allowances after a further review of night shift arrangements for nurses in public hospitals (as outlined in the second condition below), provided that liberty to apply is exercised within a 12 month period (or such further period as agreed between the parties and approved by the Commission or such further period as granted by the Commission). Secondly, we consider that the parties to these proceedings should jointly conduct a study or survey of nurses working night shifts (whether on a rotating shift or otherwise) as would be necessary to properly assess the medical issues raised in these proceedings. This may occur as part of any risk assessment or otherwise. That study or assessment should involve a survey of the opinion of nurses as to any changed work practices which might occur if the night shift allowance was increased, although with sufficient controls so as to avoid any corruption of the results obtained in the study.

WEEKEND ALLOWANCES

100 The Application, in respect to the second aspect of the claim by the Nurses' Association, sought the introduction of new penalties for working nightshift on the weekend. That claim was raised and rejected by the Full Bench in the Shift Workers Case.

101 In the Shift Workers Case the Full Bench stated (at 655):

While it is true that the Saturday and Sunday penalty rates are fixed for reasons other than those which are the basis of shift allowances and that the shift worker on a Saturday and Sunday has his shiftwork disabilities as well as those specifically relating to working on those days, we have taken these matters into account in arriving at the new standards. We think that they have always been taken into account in the past when the weekend penalty rates have been made non-cumulative on shift allowances. Accordingly, shift allowances will not be payable in addition to the weekend rates.

102 The Nurses' Association did not put forward any contentions to explain why the decision of the Full Bench in the Shift Workers Case was wrong or warranted alteration based on current circumstances. Indeed, the Nurses' Association led little evidence to support this aspect of the claim.

103 We do not consider that any basis has been established to depart from the decision in the Shift Workers Case in this respect. Further, the introduction of additional loadings for working shiftwork on the weekend would carry with it a need to examine the existing weekend penalty rates which has not been properly undertaken in this case.

104 We would, therefore, also dismiss this aspect of the claim.


ORDERS

105 That part of the application filed by the Nurses' Association on 5 August 2008 concerning variations to cl 15, Penalty Rates for Shift Work and Weekend Work, of the award is dismissed upon the conditions specified in this decision.

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LAST UPDATED:
21 September 2009