[2021] FWCFB 3537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.240—Bargaining dispute

Applications by the Health Services Union, Australian Nursing and Midwifery Federation (Victorian Branch) and the Victorian Hospitals’ Industrial Association
(B2020/278, B2020/299, B2020/408)

DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT

MELBOURNE, 18 JUNE 2021

Application to deal with a bargaining dispute – consent arbitration – dispute as to coverage – dispute determined.

CONTENTS

1. Introduction
    1.1 Context and procedural history
2. Evidence
    2.1 Paul Healey (HSU Witness)
    2.2 Lloyd Williams (HSU Witness)
    2.3 Kimberley Gallaher (HSU Witness)
    2.4 Stavroula (Leah) Rebis (HSU Witness)
    2.5 John Murphy (HSU Witness)
    2.6 Bridget Hamilton (HSU Witness)
    2.7 Daniel Darmanin (HSU Witness)
    2.8 Peter Crowe (HSU Witness)
    2.9 Paul Gilbert (ANMF Witness)
    2.10 Patricia O’Hara (ANMF Witness)
    2.11 Andrew Morgan (ANMF Witness)
    2.12 Kim Sykes (ANMF Witness)
    2.13 Tim Nagle (VHIA Witness)
    2.14 Stuart McCullough (VHIA Witness)
3. Submissions
    3.1 Fairly Chosen
    3.2 Fair and Efficient Conduct of Bargaining
    3.3 The Interests of Employees and Employers
    3.4 Existing Coverage
        3.4.1 HSU Submissions
        3.4.2 ANMF Submissions
        3.4.3 VHIA Submissions
    3.5 History
    3.6 Mutual Exclusivity
    3.7 Any other Relevant Matters
4. Consideration
5. Conclusion

ABBREVIATIONS

Act	Fair Work Act 2009 (Cth)
AOD	alcohol and other drugs
AHPRA	Australian Health Practitioner Regulation Agency
AIRC	Australian Industrial Relations Commission
ANMF	Australian Nursing and Midwifery Federation
ANUM	Associate Nurse Unit Manager
BAR	Behavioural Assessment Room
CAT team	Crisis Assessment Treatment Team
CCU	Community Care Units
Commission	Fair Work Commission
DHHS	Department of Health and Human Services
DHHS Guidelines	DHHS Guidelines for Emergency Department Mental Health and Alcohol and Other Drug Hubs – October 2019
DMF	Decision-making framework for nursing and midwifery (2020)
ECATT	Enhanced Crisis Assessment Treatment Team
ED	Emergency Department
EPS	Emergency Psychiatric Service
EMH	Emergency Mental Health
HACSU	Health and Community Services Union
HSU	Health Services Union (Victoria No 2 Branch)
Mental Health Act	Mental Health Act 2014 (Vic)
Mental Health Agreement	Victorian Public Mental Health Services Enterprise Agreement 2016- 2020
National Law	Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)
NMBA	Nursing and Midwifery Board of Australia
Nurses Agreement	Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016 – 2020
PACER	Police, Ambulance and Clinical Early Response
PAPU	Psychiatric Assessment and Planning Unit
PARC	Prevention and Recovery Centres
PEN	Psychiatric Enrolled Nurse
RPN	Registered Psychiatric Nurse
Safe Patient Care Act	Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 (Vic)
Standards	Registered Nurses Standards for Practice
VHIA	Victorian Hospitals’ Industrial Association
1992 Demarcation Agreement	Demarcation Agreement entered into between the ANF and HSUA on 2 October 1992
1992 Nurses Award	Nurses (Victorian Health Services) Award 1992
1994 Interim Award	Health and Community Services (Nursing Health Care and Associated Groups) Interim Award 1994
1995 HACSU Award	Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug Services) Award 1995
1997 Demarcation Agreement	Demarcation Agreement entered into between the ANF and HSUA on 26 November 1997

1. Introduction

[1] This decision concerns three applications for the Fair Work Commission (Commission) to deal with a bargaining dispute, made by the Health Services Union (Victoria No 2 Branch) (HSU), trading as the Health and Community Services Union (HACSU), the Victorian Hospitals’ Industrial Association (VHIA) and the Australian Nursing and Midwifery Federation (ANMF).

[2] The HSU, VHIA and ANMF are bargaining for enterprise agreements to replace the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016 – 2020 (Nurses Agreement) and the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 (Mental Health Agreement). A dispute had arisen as to scope. By way of an Arbitration Agreement first addressed to the President of the Commission under cover of a letter dated 31 July 2020, the parties have sought that the Commission conducts a consent arbitration under s 240(4) of the Fair Work Act 2009 (Cth) (Act) and answers the following two questions:

1. Is the proposed definition of coverage of the Replacement Nurses Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

2. Is the proposed definition of coverage of the Replacement Mental Health Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

[3] The following outlines the context and procedural history to the Applications before us.

1.1 Context and procedural history

[4] On 20 May 2020, a Form F11 – Application for the Commission to deal with a Bargaining Dispute was filed with the Commission by the HSU. The Application, which named as respondents the VHIA and the ANMF, was allocated the matter number B2020/278and outlined that in bargaining for a proposed agreement to replacethe Nurses Agreement, a dispute had arisen as to its scope. Following this:

• A conference was held before Commissioner Lee on 25 May 2020.

• The VHIA filed a Form F11 – Application for the Commission to deal with a Bargaining Dispute on 29 May 2020 (B2020/299) and a further conference was held on 23 June 2020.

• The ANMF filed a Form F11 – Application for the Commission to deal with a Bargaining Dispute (B2020/408) on 30 July 2020.

• The three matters (B2020/278, B2020/299 and B2020/408) were joined on 13 August 2020.

[5] The matters were allocated to a Full Bench with Deputy President Gostencnik as presiding member. Ahead of a directions hearing listed for 17 August 2020, correspondence was sent to the Chambers of both the President and Deputy President Gostencnik on 14 August 2020 by the HSU attaching the Arbitration Agreement agreed to by the parties. The Arbitration Agreement summarised the issue dispute and the parties’ respective positions broadly as follows:

(a) The parties are bargaining for an enterprise agreement (the Replacement Nurses Agreement) to replace the Nurses Agreement. The VHIA and ANMF seek to define the coverage of employees in the Replacement Nurses Agreement as:

“Enrolled Nurse means a person registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 and includes a person:

(i) registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 with a standard condition “may practise only in the area of mothercraft nursing”; or

(ii) With an equivalent qualification and role as described in subclause 4.1(q)(i) above;

but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.

Public Mental Health Services means mental health services delivered on a service, department, unit or program level operated by an employer covered by the Victorian Public Mental Health Services Enterprise Agreement 2016- 2020 (or its successor).

Registered Nurse means a person registered in Division 1 Registered Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009, but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

(b) The HSU opposes the VHIA’s and ANMF’s proposed definition of employee coverage for the Replacement Nurses Agreement;

(c) The parties are also bargaining for an enterprise agreement (the Replacement Mental Health Agreement) to replace the Victorian Public Mental Health Services Enterprise Agreement 2016 - 2020 (the Mental Health Agreement). The VHIA and ANMF seek to define the coverage of employees in the Replacement Mental Health Agreement as:

“‘Employee’ under the Mental Health Agreement be amended by adding:

“In this Agreement, ‘engaged solely or predominantly in the provision of Mental Health Services, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.””

(d) The HSU opposes the VHIA’s and ANMF’s proposed definition of employee coverage for the Replacement Mental Health Agreement;

(e) The parties have agreed questions for the Arbitration which are whether the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate, having regard to various specified matters set out in [3] above; and

(f) The parties have agreed, in the Arbitration Agreement, to comply with the outcome of this Arbitration.

[6] The parties have agreed that, in arbitrating the dispute in relation to the proposed coverage clauses, regard should be had to the following: 1

(a) whether the employees proposed to be covered by each of the replacement agreements, are fairly chosen within the meaning of “fairly chosen” as referred to in s 186(3A) of the Act);

(b) whether the proposed coverage in each of the replacement agreements will promote the fair and efficient conduct of bargaining in relation to each of the replacement agreements;

(c) in relation to each of the replacement agreements, the interests of the employers and the employees proposed to be covered by that replacement agreement;

(d) the existing coverage of the Nurses Agreement and the Mental Health Agreement;

(e) in relation to each of the replacement agreements, the history of applicable industrial instruments;

(f) the desirability that the coverage of the respective replacement agreements be mutually exclusive; and

(g) any other matters that the Commission deems relevant.

[7] The HSU referred to paragraph 15 of the Arbitration Agreement, which provides:

“The members of the Full Bench shall not include a member of the Commission who has conducted a conciliation in relation to the Replacement Nurses Agreement or the Replacement Mental Health Agreement.”

[8] It was stated by them that the rationale for this condition included the intention that the dispute be heard and determined by members of the Commission who have not had substantive dealings with the parties in the current round of bargaining and that it was the HSU’s and VHIA’s view that this would exclude, amongst others, Deputy President Gostencnik, who had dealt with Commission matters B2020/392 and B2020/406. The HSU and VHIA sought that the arbitration of the three matters be reallocated to other members of the Commission.

[9] This Full Bench was constituted on 21 August 2020. Following a mention on 3 September 2021, the matters were listed for hearing, and directions for the submission of materials were made on 8 September 2020.

[10] On 11 September 2020, a Form F52 Order for production of documents was filed and served by the HSU. The then Department of Health and Human Services 2 (DHHS) and the ANMF opposed the order sought. A hearing was conducted on 25 September 2020. The Decision in relation to the interlocutory application was made by Deputy President Clancy on 5 October 2020.3 The DHHS was ordered to produce some, but not all documents that were the subject of the HSU’s application. An additional order requiring the ANMF to produce various documents was also made in the terms sought by the HSU.

[11] Submissions, witness statements and various documents were filed by the HSU on 19 August 2020, statements in reply and further material on 19 October 2020 and subsequent to that, some additional documents were filed. The witnesses for the HSU were:

• Mr Daniel Darmanin

• Associate Professor Bridget Hamilton

• Ms Kimberley Gallaher

• Ms Stavroula (Leah) Rebis

• Mr John Murphy

• Mr Lloyd Williams

• Mr Peter Crowe

• Mr Paul Healey

[12] On 23 September 2020, the ANMF and VHIA each filed and served submissions, witness statements and documents upon which they relied. The ANMF witnesses were:

• Mr Paul Gilbert

• Ms Patricia O’Hara

• Mr Andrew Morgan

• Ms Kim Sykes

[13] The VHIA witnesses were Mr Stuart McCullough and Mr Tim Nagle.

[14] A hearing was conducted over four days. Following the receipt of final written submissions, the parties’ closing arguments were heard on 30 November 2020.

[15] On 9 December 2020, an unsolicited letter co-signed by the General Manager Health Program and the Service Director – Emergency Medicine – Acute Medicine, SubAcute, Community Program from Monash Health was received by the Commission. The parties were invited to provide their views on how the Full Bench should respond to the correspondence.

[16] On 16 December 2020, correspondence from the Executive Director of People & Culture of Monash Health was received by the Commission. It sought to explain why the 9 December 2020 letter had been sent, retract it and withhold consent to both that letter and the further correspondence from being used as evidence in the proceedings. Submissions were received from the HSU on 17 December 2020 and from the VHIA and ANMF on 18 December 2020, in which the parties’ respective positions as to the appropriate treatment of the correspondence were outlined. We do not, however, propose to have regard to this material. It was received after the evidentiary cases of the parties had closed. Further, its genesis was not satisfactorily explained and nor was the authority of either of the authors of the initial correspondence or the author purporting to retract it.

2. Evidence

2.1 Paul Healey (HSU Witness)

[17] Mr Paul Healey is the Secretary of the HSU, having held office since September 2019. He previously held the office of Assistant Branch Secretary of the HSU from June 2011 and was Mental Health Officer from June 2010. Prior to working for HSU, he worked as a mental health nurse from 1985.

[18] Mr Healey says he became aware of the proposed removal of the exclusion of mental health nurses from the Replacement Nurses Agreement in late November 2019. Mr Healey says he telephoned Ms Lisa Fitzpatrick of the ANMF to query whether this was what was proposed and was informed by her that it was not. A subsequent email from Ms Fitzpatrick to Mr Healey advised that the ANMF had amended its claim to reflect the status quo. 4 Mr Healey also says he was provided with the revised claim of the ANMF marked “Without Prejudice ANMF Claims ANMF Response”, which contained a list of marked-up definitions, including that of “Registered Nurse” and “Public Mental Health Services”, which he says had not appeared in previous Nurses’ Agreements.

[19] On 2 December 2019, Mr Healey advised Mr McCullough and Mr Nagle of the VHIA that the HSU would not be attending the bargaining meeting that day but asked that it be kept notified of any claims/changes to the Nurses Agreement that would impact on its “mental health members.” Mr Healey subsequently attended a meeting at the ANMF offices with a colleague, Ms Kate Marshall and Ms Fitzpatrick and Ms Rachel Halse of the ANMF on 8 December 2019. Mr Healey says that Ms Fitzpatrick agreed to leave the coverage as it was under the Nurses Agreement and said that the HSU need not participate in bargaining as nothing would be changing.

[20] On 13 December 2019, Mr Healey sent an email to Ms Fitzpatrick, which was copied to representatives of the VHIA and DHHS, and which read:

“We refer to your email dated 29 November.

On review as you stated in your email, the status quo remains.

We see that as that the definition of Public Mental Health Services should not be added to the definition list.

This is because we are unsure of what the recommendations will be coming out of the Royal Commission.

If this definition is not added, our concern will be satisfied and there will not need for us to attend [the bargaining for the Replacement Nurses Agreement].

If the parties could let us know that would be great.” 5

[21] Mr Healey recalls also speaking to Mr Nagle at around the same time and Ms Allison Sidebotham from the DHHS in which he advised them that the ANMF had agreed to leave the definitions as they had been in the Nurses Agreement and that if they had any problems with this, to let him know. He says they agreed to do so and that he did not hear anything further from them thereafter, nor did he receive a response to his email of 13 December 2019.

[22] Between January 2020 and 15 April 2020, Mr Healey says he was not aware of any communications between the ANMF and the VHIA, nor of any between either of these parties and the Victorian Government, about the content of the Replacement Nurses Agreement. He says that the HSU was not invited to participate in any discussions between those parties, nor was it made aware that any such discussions were taking place.

[23] On 16 April 2020, Mr Healey says he was advised by a HSU member that, at a state-wide meeting that day, the ANMF had stated that all Mental Health Crisis Hub staff would be employed under the Replacement Nurses Agreement.

[24] On 23 April 2020, Ms Marshall wrote to Ms Fitzpatrick and requested a copy of the draft Replacement Nurses Agreement. In his reply Mr Paul Gilbert from the ANMF advised that what the ANMF had sought to do was define the status quo as to what 'employed solely or predominantly in the provision of Public Mental Health Services' meant. Further, Mr Gilbert said that the Replacement Nurses Agreement would provide that 'employed solely or predominantly in the provision of Public Mental Health Services' refers to the service, department, unit or program of the Employer rather than the duties of the individual employee and that in the view of the ANMF this was entirely consistent with the long standing delineation between the Nurses Agreement and the Mental Health Agreement.

[25] Ms Marshall’s response advised that the HSU sought to review the Replacement Nurses Agreement once drafting had been completed and before it was lodged with the Commission for approval, to ensure that it was satisfied there was no undermining of its coverage or its members’ interests. Despite this request, Mr Healey says that neither the VHIA nor ANMF provided a copy of the draft Replacement Nurses Agreement to either Ms Marshall or the HSU.

[26] Mr Healey says that on 28 April 2020 the HSU wrote to the Hon. Tim Pallas, Minister for Industrial Relations. This letter covered the following matters:

• That the HSU had been informed that the Victorian Government and the ANMF had come to an in-principle agreement regarding the Replacement Nurses Agreement, which had gone out to vote and has been endorsed by the workforce.

• There had been an addition made to the definition of Registered Nurse.

• This change had been made without any consultation with the HSU, despite the HSU’s communications with the ANMF, VHIA and Victorian Government, and the understanding the HSU had formed that the definition would not be amended.

• The HSU’s concern at what it considered to be a lack of transparency particularly as the issue had been raised in November 2019.

• A request that the definition be removed because it directly affected HSU members and its historical coverage of the mental health sector.

• That in the event the definition was not removed, legal action would be taken to ensure it was.

[27] Mr Healey also sent correspondence on behalf of the HSU to both the ANMF and the VHIA on 1 May 2020 in which he referred to the established practice of having enterprise agreements in the nursing industry for general nursing and mental health nursing having been disturbed by a proposed change in scope for the Replacement Nurses Agreement that would potentially see employees covered by the Mental Health Agreement fall within the Replacement Nurses Agreement. Alleging the change had been made without it having been notified and asserting reliance upon representations and commitments made by the ANMF and VHIA during the period of bargaining, the HSU claimed the behaviour of the ANMF and VHIA had not met the good faith bargaining requirements as contained in s 228 of the Act and sought an undertaking that they would amend their proposed Replacement Nurses Agreement so that it contained the existing exclusion of mental health nurses without any additions or amendments.

[28] The ANMF responded on 1 May 2020 rejecting the allegation that it had breached the good faith bargaining requirements under the Act and stating that the ANMF stood ready to discuss the question of the scope of the Replacement Nurses Agreement at short notice. The ANMF asserted:

• The coverage of the two agreements did not fix on “mental health nursing” as suggested by the HSU, with the distinction between them relating to the employers’ provision of public mental health services. The drafting for the Replacement Nurses Agreement addressed that issue.

• The HSU request for an undertaking that the ANMF agree to retain the exclusion without any additions or amendments was an attempt to secure agreement content and a bargaining outcome under the guise of a good faith bargaining matter.

• Sending out the proposed Replacement Nurses Agreement for approval was not imminent as there was still substantial drafting work to be undertaken on its terms, which might include any agreed provisions concerning the scope of the agreement arising from the proposed discussions;

• The scope of the (current) Nurses Agreement had to be understood in the context of the exclusion in the scope of the Mental Health Agreement and clause 11.4 of that agreement; and

• The complaint that the exclusion of nurses employed “solely or predominantly in the provision of public mental health services” had not been included was misplaced and that it had been maintained would have been apparent from the email and the attached material sent to Ms Marshall of the HSU on 23 April 2020.

[29] The VHIA’s response stated that the proposed Replacement Nurses Agreement had not been distributed for ballot, a ballot date had not been set and that it undertook to advise the HSU of the ballot date, once set. It otherwise denied not having met the good faith bargaining requirements.

[30] In a subsequent exchange of correspondence on 4 May 2020, Mr Healey requested a copy of the proposed Replacement Nurses Agreement in its draft form ahead of any meeting. The ANMF replied by stating that no such document was in existence and even if one did exist, it would be difficult to see what bearing it would have on the expressed concern of the HSU regarding the exclusion of nurses employed “solely or predominantly in the provision of public mental health services”. The ANMF stated there was no intent to change the incidence and application clause or the respondency list from that contained in the Nurses Agreement and said the only additional item beyond that already provided that might be of interest to the HSU was the proposed definition of ‘Public Mental Health Service’ itself.

[31] Mr Healey said he and Ms Marshall attended a Zoom meeting with ANMF and VHIA on 7 May 2020. He recalls that the parties disagreed on the question of whether the proposed changes altered the status quo in a substantial way.

[32] On 8 May 2020, Ms Marshall emailed Mr McCullough of the VHIA and Ms Fitzpatrick of the ANMF the “HACSU’s outline of issues” document, which set out its concerns regarding proposed wording for the Replacement Nurses Agreement. The HSU asserted the proposed wording affected the historical delineation between two nursing agreements and that it would place the focus on the service, department, unit, or program of the employer rather than the duties of the individual employee. The HSU argued the duties were of the upmost importance because if a clinician was providing a role that was predominately or solely in the provision of a mental health service in any service – not just a Public Mental Health Service, they were providing work that is outlined in the Mental Health Agreement. The HSU asserted the proposed words were not justified, neither was the example that had been included. Specifically, it said the potential consequences of the inclusion of the underlined words would be that some roles would fall within the scope of the Replacement Nurses Agreement rather than the Mental Health Agreement (Mental Health Clinicians who work in an Enhanced Crisis Assessment Treatment Team (ECATT), Consultation Liaison Nurses, Mental Health Clinicians who work in the Alcohol and other Drugs (AOD) sector and Mental Health Clinicians working in the ED Hubs). It said these roles were clearly covered by the Mental Health Agreement, with the exception of Consultation Liaison Nurses. The email noted the parties disagreed on maintaining the status quo and the HSU’s belief that the proposed words were not necessary. The HSU requested written information as to why the VHIA and the ANMF believed that the inclusion of the proposed words was necessary and to provide examples supporting such.

[33] Mr Gilbert of the ANMF sent an email in reply on 11 May 2020 in which he repeated the ANMF’s concerns about how to describe the delineation in coverage between the two agreements and its view that nurses working in an emergency department (ED) are and have always been covered by Nurses Agreements. He asserted the form of words agreed between the parties in bargaining in late March 2020 best reflected the existing delineation and minimised any potential confusion and that the requirement for such a clause was further evidence that there had historically been differences of application of agreement coverage by, and perhaps within, different employers covered by both agreements. Mr Gilbert also suggested that clause 11.4 of the Mental Health Agreement had been included due to difficulties the HSU had experienced in terms of delineation when seeking protected action ballot orders. Mr Gilbert took issue with assertions made by the HSU in relation to various specified roles and stated that the ANMF was satisfied with the term proposed for the Replacement Nurses Agreement and that its rationale for its adoption had been explained. He added that the ANMF was also content to receive and consider alternative proposals from the HSU but asserted that it had not yet provided any such proposals, as had been agreed in the meeting on 7 May 2020. The HSU disputed a number of Mr Gilbert’s assertions and advised that they would be discussed in a meeting scheduled for 12 May 2020 and until such time, the status quo should remain.

[34] Mr Nagle of the VHIA also sent an email on 11 May 2020 to Mr Healey and Ms Marshall, which relevantly stated that the VHIA’s interest in the coverage issue was limited to ensuring the Replacement Nurses Agreement is unambiguous so that its members may administer the various agreements with confidence.

[35] Mr Healey says he and Ms Marshall attended a Zoom meeting with the ANMF and the VHIA on 12 May 2020 and that following this meeting, the parties continued to exchange correspondence concerning the proposed scope of the Replacement Nurses Agreement. Mr Healey also says that following the exchange of emails, he and Ms Marshall formed the view that the discussions with the ANMF and the VHIA were not advancing the matter and so the s 240 application (B2020/278) was lodged with the Commission on 20 May 2020.

[36] Minister Pallas provided a response to the HSU on 21 May 2020, urging it to take up the issue of coverage in the first instance with the parties to the negotiations, given its detailed nature. The Minister’s letter also indirectly noted there was to be a conference at the Commission on 25 May 2020. This conference was presided over by Commissioner Lee.

[37] Mr Healey’s evidence going to the establishment of six mental health hubs (Hubs), announced by the Victorian Government in May 2018 begins with reference to the media release dated 10 May 2018 issued by the Victorian Government, which stated:

“NEW MENTAL HEALTH HUBS TO TREAT MORE VICTORIANS SOONER

People needing urgent mental health treatment will get the specialist care they need, allowing busy emergency departments to treat other patients, thanks to a major investment by the Andrews Labor Government.

Premier Daniel Andrews and Minister for Mental Health Martin Foley today joined specialist staff at the Royal Melbourne Hospital – one of six sites across the state set to be part of a rollout of new emergency department crisis hubs made possible by a $100.5 million investment in the Victorian Budget 2018/19.

The other five crisis hubs will be established at Barwon Health, Monash Medical Centre, St Vincent’s, Sunshine and Frankston hospitals – and will include separate 24-hour, short-stay units in emergency departments to treat people during the times of crisis.

The investment directly responds to an increasing number of people with mental health, drug and alcohol problems who seek help in emergency departments, when their condition has reached crisis point.

New data shows that across the state, emergency departments experienced an increase in mental health patients of almost 20 per cent over the last four years.

People presenting with urgent mental health, alcohol and drug issues will be fast-tracked to these hubs for specialist, dedicated care – relieving pressure on our EDs and our hardworking doctors and nurses.

Patients will be assessed and treated by an ED and mental health team – made up of psychiatrists, mental health nurses and social workers – and referred to other services as required.

The new hubs will ensure people presenting with mental health issues get the right support, sooner, and that our general emergency departments are able to focus on caring for other patients.

They are part of a record $705 million investment in this year’s Budget to give Victorians with mental illness and addiction and their families the treatment and the support they need.

Quotes attributable to Premier Daniel Andrews

“Our hard-working ED nurses and doctors are dealing with more mental health patients than ever before. We’re taking the pressure off them, so that they can give more Victorian families the emergency care they need.”

“These hubs will give people suffering an urgent mental health crisis the specialist care they need, and free up our busy EDs to do what they do best.”

Quotes attributable to Minister for Mental Health Martin Foley

“This will fundamentally change the way we deal with mental health presentations in EDs – freeing up important frontline resources in our hospitals.”

“We want to end the revolving door in our emergency departments – that means giving people with a mental illness or addiction access to the immediate, dedicated services they need.””

[38] Mr Healey says during 2019, he attended a number of meetings at the DHHS to discuss the implementation of the Hubs and that there were a number of draft Guidelines for the operation of the Hubs prepared by the DHHS and then discussed with relevant stakeholders, including the HSU and other affected unions. Mr Healey refers to a copy of Guidelines issued in July 2019 and says a later version, the DHHS Guidelines for Emergency Department Mental Health and Alcohol and Other Drug Hubs – October 2019 (DHHS Guidelines) nominated, for the first time, the industrial instruments said to apply to the workforce in the Hubs. He says that there had been no prior consultation with the HSU, and HACSU in particular, regarding this development.

[39] Mr Healey says he raised strong objections to the DHHS becoming involved in demarcation issues and dictating industrial coverage at the first consultation meeting that followed the issuing of the DHHS Guidelines. He says after this meeting the HSU was not invited by the DHHS to any further consultation sessions or any other meetings. He also says he was aware that the DHHS formed “working groups” with the hospitals and the ANMF, which excluded the HSU.

[40] Mr Healey says that the DHHS Guidelines have left the six hospitals with flexibility as to how they will configure and staff the Hubs and claims that based on his discussions with the hospitals, as well as his observations of the meetings organised by the DHHS in 2019, there was no uniformity amongst the hospitals about the form of Hubs that each will be establishing. Mr Healey says that Monash Medical Centre in Clayton is the only operational Hub that has been established and that it has two registered nurses, both of whom are mental health nurses employed under the Mental Health Agreement.

[41] Mr Healey argues that, from an industrial and clinical view, it is important that when nurses provide mental health services they should have the coverage and protections of the Mental Health Agreement. He provides two examples to support this assertion:

(1) The classification prescriptions in clause 99 (for which there is no equivalent under the Nurses Agreement) are critical in regulating how mental health nursing is to be delivered because they offer guidance and protections for the nurses as a reference point with which they, and their employers, must comply; and

(2) The classification and staffing regime in clause 91 of the Mental Health Agreement prescribing the staffing profile/minimum number of mental health nurses of each position/classification to be appointed to each ward, unit or service ensures that not only is there a sufficient number of appropriately skilled and qualified mental health nurses in each unit, but that there is an appropriate mix of nurses of different skills and responsibilities appointed in each service. By contrast, the Nurses Agreement only provides that employers should “aim to achieve” a minimum skill mix of one third registered nurses with more than three years’ experience, one third with one to three years’ experience, and one third graduate or Enrolled Nurses (clause 86).

[42] Mr Healey submits that the classifications guide decision making, because they outline what an employee is empowered to do, but his evidence seemed to evince that this simply served to confirm the appropriate rate of pay. 6 Mr Healey also filed a supplementary witness statement in which he provides responsive views to discrete aspects of the evidence relied upon by the ANMF and VHIA.

[43] Under cross-examination, Mr Healey accepted that outside of the Mental Health Agreement, the terms registered psychiatric nurse and registered enrolled nurse are not used by either the Australian Health Practitioner Regulation Agency (AHPRA) or the Nursing and Midwifery Board of Australia (NMBA), which provide training for nurses. 7 Mr Healey accepted these terms are outmoded, outdated and unnamed outside of the Mental Health Agreement. Further, he said that to the extent there was reference in Clause 99 of the Mental Health Agreement to training, it was outmoded and outdated.8 Mr Healey agreed that clause 99 was clearly for an industrial purpose, as a way for persons covered by the Mental Health Agreement to advance through the classifications9 and accepted that any nurse who has to make a decision regarding the restraint of a patient must comply with the Mental Health Act 2014 (Vic) (Mental Health Act).10

2.2 Lloyd Williams (HSU Witness)

[44] Mr Lloyd Williams is the National Secretary of the HSU. Mr Williams began his career working at the Larundel Psychiatric Hospital and Mont Park Psychiatric Hospital. He recounts that during the period in which large mental health institutions were progressively closed by successive Victorian state governments in the 1980s and 1990s, mental health workers remained employed by the State of Victoria as public servants pursuant to the Public Service Act 1974 (Vic) whilst being “seconded” and physically transferred to the new mental health facilities attached to public hospitals. Initially, the terms and conditions of the mental health workers were set by the Victorian Public Service Board by a series of determinations (colloquially called the Blue Books) and after 1993, these determinations were used to establish the first federal award, the Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug Services) Award 1995 (1995 HACSU Award). Mr Williams says that mental health workers were able to work in the public hospital system without loss of their employment terms and conditions through the operation of s.97 of the Mental Health Act 1986 (Vic) and that most mental health workers remained employees of the State until the late-1990s.

[45] Mr Williams says that in or around 1994, the Victorian government sought to outsource the provision of mental health services in public hospitals from the then Department of Health and Community Services to organisations which had entered into Health Services Agreements dealing with the transfer of employees, medical records and equipment assets from the Department. The Health Services Agreements permitted public hospitals to employ staff directly under federal Awards. Relevantly, mental health nurses directly employed by public hospitals during this process were covered by the Nurses (Victorian Health Services) Award 1992 (1992 Nurses Award).

[46] The HSU brought a case in the Federal Court in 1996 alleging that certain mental health service providers had breached the terms of the 1995 HACSU Award. In particular, the HSU alleged there had been a transmission of the business of providing acute adult mental health services from the State of Victoria to the public hospitals, and consequently, they were bound by the 1995 HACSU Award. The State of Victoria argued that even if there had been a transmission of business, the 1995 HACSU Award had ceased to have application to the employment of mental health nurses and the applicable award was the 1992 Nurses Award.

[47] In Health Services Union of Australia v North Eastern Health Care Network, 11 Justice Marshall upheld the HSU’s claims that there had been a transmission of business from the State of Victoria to the public hospitals and determined that both the 1992 Nurses Award and the 1995 HACSU Award could apply to the employees engaged in the provision of adult mental health services. His Honour further determined that the appropriateness of the application of the either Award was a matter for the Australian Industrial Relations Commission (AIRC).

[48] A demarcation dispute between the HSU and the ANMF in the AIRC during the same period was resolved by a memorandum of agreement dated 26 November 1997, whereby both unions acknowledged that all employees engaged in the provision of psychiatric/mental health services in the public sector should be subject to a certified agreement applicable only to all such employees. The unions also agreed to cooperatively pursue the making of an award for such employees which would operate to the exclusion of the 1992 Nurses Award. Subsequently, the HSU and ANMF entered into negotiations with the government and public hospitals through the VHIA for a new industrial instrument pursuant to the demarcation agreement. Mr Williams recounts that a Heads of Agreement called the Victorian Psychiatric Services Agreement 1997 was executed by the HSU, the ANMF, the VHIA, the State of Victoria, Mercy Health & Aged Care and Latrobe Regional General Hospital on 19 January 1998. He says this was a precursor to a series of certified agreements pertaining to the provision of specialist psychiatric nursing. Under clause 3 of the Heads of Agreement, the parties agreed to take whatever steps necessary to have the agreement drawn up into various certified agreements. The Heads of Agreement and the certified agreements applied to all employees eligible to be members of the HSU (No 2 Branch) and/or the ANMF who were “engaged solely or substantially in the provision of psychiatric and/or mental health services in Victoria”. The parties to the Heads of Agreement further agreed to develop certified agreements specific to the provision of psychiatric and/or mental health services in terms which included the adoption of the detailed classification standards for psychiatric nurses in the 1995 HACSU Award. Mr Williams says there were 22 certified agreements made pursuant to the Heads of Agreement in or around 1997 in substantially the same form between the HSU, the ANMF and the relevant employer and that following their expiry, the parties bargained for the following certified agreements:

• the Victorian Psychiatric Services Certified Agreement 2000-2004 (PR944942);

• the Victorian Psychiatric Services Certified Agreement 2004-2007 (PR955229), which was extended by agreement to 2009;

• the Victorian Public Mental Health Services Enterprise Agreement 2012-2016 [2012] FWAA 10189; and

• the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 [2017] FWCA 2072 (Mental Health Agreement).

[49] Mr Williams says that the words “solely or substantially” were used in the coverage clause of various agreements until the Mental Health Agreement, when the expression was changed to “solely or predominantly”.

[50] As to the occupational classifications, Mr Williams said Appendix A of each of the 1997 Agreements set out the skill levels and classification definitions, standard and structures of registered psychiatric nurses via two components:

• the group standard, which provided a narrative description of the work undertaken by employees in the applicable occupational classification; and

• the work level standard, which provided a typical evaluation, definition, features and typical duties for each level, to enable classification of positions.

[51] Mr Williams asserts the group standards in clauses 4-13 of Appendix A of the 1997 Agreements are substantially identical to clauses 99.2 to 99.11 of the Mental Health Agreement and that the differences between the 1997 Agreements and the current Mental Health Agreement are as to form, not substance. He says there is no equivalent to these clauses in the Nurses Agreement or its predecessors. Mr Williams says that the work level standards established in the 1997 Agreements were detailed and comprehensive and that, over the years, the level of detail in the work level standards of the mental health agreements has increased substantially. Mr Williams argues there is no classification structure that recognises or applies to mental health nurses in the Nurses Agreement at all, and he further asserts that the classifications in the Nurses Agreement do not contain the same level of detail regarding the features and duties for each classification as the Mental Health Agreement.

[52] Mr Williams says that the detailed group and work standards for psychiatric nursing in the past and current Mental Health Agreements reflect the specialist nature of psychiatric nursing and mental health, and that the ANMF and VHIA have agreed with the HSU that psychiatric nursing is a specialist branch of nursing warranting detailed and occupationally specific standards and classifications of work. He claims the specialist nature of mental health nursing has been recognised by the Nurses and Midwives Act 1950 (Vic), which established a separate register on the Nurses Board of Victoria for mental health nurses and a statutory requirement that nurses who wished to apply for registration as a “mental nurse” hold a qualification in mental health nursing. Mr Williams also says mental health nurses continued to be registered as specialist mental health nurses in Division 3 of the registration kept by the Nurses Board until the enactment of the Nursing and Midwifery Board of Australia under the Health Practitioner Regulation National Law. While the categories of registration are now limited to registered nurse (Division 1) and enrolled nurse (Division 2), Mr Williams asserts that the specialist nature of mental health nursing continues to be recognised by most employers, who require that any person wishing to be employed as a mental health nurse hold a post-graduate qualification in mental health nursing. Mr Williams also relies on draft Productivity Commission recommendations from its draft report on Mental Health in October 2019 that accreditation standards should be developed for a three-year direct-entry (undergraduate) degree in mental health nursing and that there be an assessment into the merits of introducing a specialist registration system for nurses with advanced qualifications in mental health.

[53] Mr Williams says that in his experience, employers in the public health sector have a general preference that mental health nurses hold a mental health qualification on top of their basic nursing qualifications. He says he is unaware of any lack of efficient operation in public hospitals where general nurses may work cooperatively with mental health nurses and that he is not aware of any instances where disputes have arisen between such employees over issues of industrial coverage. Further, Mr Williams disagrees that there has been ongoing disputation around the extent of coverage under the Replacement Nurses Agreement. He gave evidence in relation to a previous dispute concerning Barwon Health in which he says the employer was attempting to bring all employees at a facility called Blakiston Lodge under the Nurses Agreement for administrative ease which was resolved by the employer agreeing to apply the Mental Health Agreement. He said there was no outcome in that dispute agreed between the HSU and the ANMF. Mr Williams submits that the only disputation is that which has recently been created by the ANMF in seeking to change the established coverage in the sector.

[54] Noting the proposed change to the scope of the Nurses Agreement, Mr Williams contends that the words “service, department, unit or program” in the definition of Public Mental Health Service in the Replacement Nurses Agreement do not have a clear or universal meaning as their use can vary from hospital to hospital. He says that sections of a hospital may have multiple sub-sections that are described as programs, units, departments or services. As a result, Mr Williams asserts the terms in the proposed new definition will cause a great deal of uncertainty about their meaning.

[55] Mr Williams filed a supplementary witness statement in which he provides responsive views to discrete aspects of the evidence relied upon by the ANMF.

2.3 Kimberley Gallaher (HSU Witness)

[56] Ms Kimberley Gallaher has been employed by Monash Health as a Rapid Response Nurse (a mental health nurse position) in the Mental Health Hub at Clayton Hospital since May 2020. She is a member of HACSU employed under the Mental Health Agreement in the Registered Psychiatric Nurse (RPN) classification of RPN4. She has previously worked for the Eastern Health mental health triage service, in the Psychiatric Assessment and Planning Unit (PAPU) at Maroondah Hospital, which was operated by the mental health service and was designed to support the ED by providing both mental health and medical services to patients who presented to emergency.

[57] Ms Gallaher challenges aspects of the evidence given by Mr Morgan for the ANMF in relation to the operation of Eastern Health on the basis that it does not accord with her experience when working there although she acknowledged that her work there for the mental health triage service only sometimes saw her located in the ED. 12

[58] Ms Gallaher says she was employed specifically to work as a mental health nurse in the Hub at Clayton Hospital with the job title “Behavioural Health Rapid Response Nurse”. Although the Hub has been operational and receiving patients since mid-June 2020, Ms Gallaher says it is currently referred to as the “Engage Team” as it does not yet have a physical standalone space in the ED. Following completion of building works, Ms Gallaher says that the Hub will have its own cubicles, nursing station, offices and interview spaces adjacent to the ED. Ms Gallaher does not consider the Hub has been able to function and provide mental health services to its full capacity.

[59] Ms Gallaher says she is currently one of two rapid response nurses in the Hub at Clayton Hospital employed under the Mental Health Agreement. There is a third rapid response nurse position that has not yet been advertised. It is required as two nurses cannot provide cover for two shifts a day, seven days a week. Ms Gallaher says there are no general nurses employed in the Hub and that the other staff employed are a social worker, an AOD clinic nurse specialist (employed under the Nurses Agreement), a peer work team leader, a consumer peer worker and a family peer worker. She understands that once the building works are complete, there will be a second round of recruitment for staff to work in the Hub.

[60] Ms Gallaher says that while functionally she operates in the ED, she clinically practices under the Mental Health Act which enables her to provide care and conduct clinical decision-making under the authority of the authorised psychiatrist or their delegate for Clayton Hospital. She says that her position description reflects this, and her reporting line is as follows:

• Operational: Nurse Manager, Emergency Department, Clayton;

• Professional: Director of Nursing, Mental Health Program; and

• Mental Health Clinical Governance: Emergency Psychiatric Services, Mental Health Program.

[61] Ms Gallaher said she reports operationally and clinically to Ms Nicole Edwards, a mental health nurse specialist employed under the Mental Health Agreement, who in turn reports to the clinical director of emergency operations, the community manager of mental health and the director for mental health services.

[62] Ms Gallaher says that patients enter the Hub via the ED. The triage nurse, who practices as a general nurse, will “code” to the Hub patients who appear to have “behavioural health” issues which can be assessed by the triage nurse themselves, or a notification is received by the Hub from a paramedic or the police who are arriving with a patient. Ms Gallaher says “behavioural health” issues encompass mental health, drug and alcohol issues, behaviour disturbance, intellectual instability or a Victoria Police referral under s 351 of the Mental Health Act. Upon receiving notification from the triage nurse, Ms Gallaher says that she or the other rapid response nurse will meet the patient at triage along with a registrar to conduct a brief joint assessment. This initial assessment is conducted to establish the reason for the patient’s presentation, their legal status (whether voluntary or compulsory), their substance abuse, forensic and mental health history, and their needs at the time.

[63] Ms Gallaher says that her initial assessment may be that the patient needs a mental health response, in which case she would refer them to the Emergency Psychiatric Service (EPS) in the ED which is staffed by psychiatrists and mental health clinicians including mental health nurses, social workers, psychologists and occupational therapists. If the patient has multiple or complex needs, such as AOD treatment, social work due to family violence or child protection issues, homelessness or other multiple needs, Ms Gallaher says she will refer the patient into the Hub. She remarks that all mental health patients must present to the Hub for assessment by the mental health rapid response nurse even if they may ultimately be treated by the EPS, AOD specialists or social work. Once a patient is in the care of the Hub team, Ms Gallaher says they are treated according to their needs and are often treated concurrently by clinicians. For instance, Ms Gallaher says that if she has determined that a patient needs AOD, the AOD nurse can link them with the appropriate services while they are in the Hub. Ms Gallaher says she has not been required to perform general nursing duties within the ED.

[64] Ms Gallaher describes her role as being a coordinator of patient care where she meets the patient at triage, assesses their needs and arranges for them to be provided with the appropriate care. While the specific clinical care is provided by the relevant clinician, be it EPS, AOD or social work, Ms Gallaher says she maintains oversight of the patients in the Hub and that the mental health clinical responsibility for patients is not to the ED but through the mental health structure to the authorised psychiatrist. She says she also conducts rounds and sees all mental health patients in the ED to ensure their needs are being met and that the clinicians have an appropriate plan for their care. Ms Gallaher says that she also attends Code Greys in the ED, which is an emergency response to situations or incidents of aggression, threatening behaviour, abuse and violence. She says her role in this situation includes ensuring that the response to a patient is proportionate and has been done for a valid reason under the Mental Health Act or the common law duty of care, and that the process has been properly documented.

[65] Ms Gallaher says that there is no equivalent classification for her position if she were to be covered by the Nurses Agreement and that she is uncertain as to whether she would be graded or paid the same. Ms Gallaher claims she would lose the recognition of having specialist skills and the identity that attaches to her role. However, under cross-examination Ms Gallaher accepted that she was unaware that her status as a mental health practitioner under the Mental Health Act would remain the same regardless of the agreement that covered her. 13

[66] Ms Gallaher opines that the low recruitment rates into mental health nursing warrant the need for the Mental Health Agreement as it is important to offer nursing graduates the recognition that mental health is a specialist area of practice. Furthermore, Ms Gallaher holds the view that the work standards in the Mental Health Agreement demonstrate that nurses need a certain level of clinical skill and knowledge to be able to function safely in mental health practice and that general nurses do not have the skills, experience or training to appropriately utilise the power to complete an assessment order under the Mental Health Act.

2.4 Stavroula (Leah) Rebis (HSU Witness)

[67] Ms Stavroula (Leah) Rebis is a Forensic Clinical Specialist employed by Melbourne Health. Ms Rebis works in the Mid-West Area Mental Health Service, which is a division of NorthWestern Mental Health, the mental health clinical division of Melbourne Health. Ms Rebis is employed under the Mental Health Agreement, pursuant to which she is classified as a RPN5. She is a member of HACSU and is a HACSU delegate.

[68] Ms Rebis is based at Harvester Community Mental Health Clinic in Sunshine, but also travels to Sunshine Hospital, Mid-West Community Care Units (CCU) and prisons in the western region of Victoria including Ravenhall Correctional Centre, Metropolitan Remand Centre, Dame Phyllis Frost Centre and Community Corrections. She liaises regularly with Sunshine Magistrates Court Services, Sunshine Police Station, Keilor Downs Police Station, Melton Police Station and Caroline Springs Police Station.

[69] Within the Harvester Clinic, Ms Rebis says she works with another team member of the same grade and they are both overseen by the Director of Clinical Services Midwest Area, the Mental Health Service Area Manager (who is a Registered Mental Health Nurse) who then reports to the Director of Operations for NorthWestern Mental Health and the Authorised Consultant Psychiatrist. The team is referred to as the Mid-West Forensic Clinical Specialist Program. Her authority to make assessment orders under the Mental Health Act is derived from her status as a “mental health practitioner” pursuant to the Mental Health Act.

[70] As to her work within Sunshine Hospital, Ms Rebis says she liaises and interacts with the ED, acute mental health and at times the non-mental health inpatient services, special extended care wards and community mental health clinics. She says that emergency mental health care is provided by the Emergency Mental Health (EMH) team, which is staffed by mental health clinicians. The EMH team is situated above the ED area so it is accessible for the assessment of persons who attend the ED. Ms Rebis says that the EMH service is provided to Sunshine Hospital by Midwest, a subsidiary of NorthWestern Mental Health Service, but that Western Health who operates Sunshine Hospital is not a designated mental health service under the Mental Health Act.

[71] Ms Rebis observes that the nurse in charge of the ED is a general nurse, not a mental health nurse. As such, Ms Rebis says that she will make the nurse in charge aware that there is a person presenting to an ED with a “behaviour of concern.” Ms Rebis also provides the nurses within the ED immediate clinical education about the risks regarding the person. If the person is then admitted to an in-patient ward, Ms Rebis says she will endeavour to follow up with the treating team and provide secondary clinical consultation. She also speaks with the clinicians who look after the person and provides support to the teams if they have any concerns or service anxiety. As to her interaction with other units within the mental health service, Ms Rebis says she regularly interacts and provides a clinical consultancy service to internal referrals from the Midwest Area Mental Health Service acute in-patient mental health units, special extended care mental health units and CCUs. She says that the Midwest Forensic Clinical Specialist Program will triage and assess the referral, undertaken extensive file reviews to look for patterns of risk behaviour, triggers, protective factors and supports to mitigate the risk of violence, and make recommendations about what interventions may be helpful.

[72] Ms Rebis remarks that mental health nurses are trained to understand a patient’s right to second opinions regarding medication, to appeal a proposed course of treatment, to be included in the decision-making process and to be presented with all available options so that they may make an informed choice as to the trajectory of their care. She describes this process as being a collaborative one with the consumer as she looks at and accounts for the person’s whole life. Ms Rebis posits that the role of a general nurse referring a patient to a social worker may start and end with the referral whereas all clinicians in community mental health are required to remain involved throughout the treatment plan and case manage the process in a coordination capacity, regardless of referrals to other agencies.

[73] The opinion of Ms Rebis is that general nurses have limited training and experience in mental health and, as a result, they are more likely to see the presenting issue through a narrow “medical model” lens which involves treating the illness first, rather than the person in the context of their whole psychosocial situation. She says mental health practitioners are trained to treat holistically and include all aspects of health and social care in addition to the presenting illness.

[74] Ms Rebis proffers that mental health practitioners are trained to both recognise the increased level of vulnerability and inhibited ability to cope or advocate and significantly reduced tolerance levels that people with mental health problems possess and assess those presenting in an in-depth manner, taking into account other psychosocial triggers that may be connected to the current presentation so as to ensure all issues are appropriately treated. She advocates that mental health nurses have further training in psychopharmacology to understand medications specific to treating mental health conditions and that through this, mental health nurses acquire an understanding of the interactions between some medical drugs that may dilute their efficacy. Ms Rebis considers it part of her nursing discipline and role responsibility to educate both clinical and non-clinical staff about mental health issues in the community, both formally and informally.

[75] Ms Rebis says she refers to the Mental Health Agreement in order to clarify her functions, using it as a reference point if she is asked to undertake something that may be outside the scope of her practice. She asserts that the functions, duties and competencies her employer expects are separate matters to clinical decision-making. Ms Rebis regards the classifications in the Mental Health Agreement as containing the professionally-based expectations of her role and considers it establishes the standard of professionalism she is required to maintain. Moreover, she remarks that the Mental Health Agreement impresses upon her the importance of maintaining her training as a professional nurse not only to fulfil her obligations but also reflect her grade. Ms Rebis says as a Grade 5, the expectation is that she work very independently and autonomously, making structured clinical decisions without direction and being able to legally justify any decisions made. She believes the detailed group and work standards contained in the Mental Health Agreement motivate her to maintain her continuing professional education and advancement. Under cross examination, Ms Rebis indicated that she does not use the Mental Health Agreement for determining the scope of practice or the professional standards of a mental health nurse. 14

[76] Ms Rebis is concerned that if her work was to be covered by the Nurses Agreement, there would be a loss of recognition for mental health as a specialised area of nursing, particularly as the professional parameters in the Mental Health Agreement for Grade 5 RPNs define her role. Ms Rebis has concerns about reporting to a director with no experience in mental health if there were competing organisational priorities between the medical model care and the mental health model of care. She believes that if her role was part of a medical department, she would lose valuable specific mental health support for her development and upskilling and that the loss of insight and support around her practice, development and ongoing learning could have detrimental consequences for the consumer and dilute the work of mental health nurses and their credibility.

[77] Ms Rebis states that she is a credentialed Mental Health Nurse with the Australian College of Mental Health Nurses and that in order to be re-credentialed and maintain the use of the title Credentialed Mental Health Nurse (in addition to her title as a Registered Nurse), she is required to undertake a minimum of 120 hours of professional development directly related to mental health nursing over three years, comprised of 60 hours of clinically specific professional development and 60 hours of mental health service development.

2.5 John Murphy (HSU Witness)

[78] Mr John Murphy is employed by Ballarat Health Services as a Registered Psychiatric Nurse in the Prevention and Recovery Centre (PARC) at Ballarat Health. He is classified as RPN3 under the Mental Health Agreement. He is also a member of HACSU and a HACSU workplace delegate. Mr Murphy holds a position on the Health Services Union National Council. Mr Murphy also does some casual forensic work in the low-security prison medical centre Langi Kal Prison, where he reviews mental health patients and mental health care plans.

[79] Mr Murphy began working in the newly established Ballarat Health PARC shortly after it opened on 3 August 2020. The PARC is physically separate from the Ballarat Hospital main campus and occupies a standalone physical space on a separate street. The purposes of PARC is to provide clinical care to persons with mental health condition or mental illness in a manner aimed at preventing the admission of patients into an acute unit or reduce the length of a patient’s stay in an acute unit. As to the persons admitted to the PARC, Mr Murphy says while they have acute or severe mental health conditions, the severity of the presentation is what influences their suitability for PARC. Their medications may need adjustment or they may require some therapy work to determine particular environmental or social stressors that have exacerbated their symptomatology. Mr Murphy says it is not uncommon for staff to treat the same person over a long period with multiple occasions of admission as there may be a number of factors influencing their reasons for coming to hospital.

[80] The two pathways for entry into the PARC are that a person may be admitted via referral from a health service or, if already known to the mental health service as a case managed client, admitted by their case manager. He says that PARC can admit patients for a short stay of up to 28 days or a long stay of up to six months. There are approximately 15 staff members including a unit manager, six RPN3 shift managers, three RPN positions and five Division 2 (Enrolled) nurses. There are no general nurses working in the PARC. Mr Murphy says the work of PARC falls under the supervision of the psychiatrist employed by Ballarat Health who attends the PARC for two four-hour sessions per week. The majority of the treatment offered by the PARC is provided by the mental health nursing team.

[81] Mr Murphy comments that holding a post-graduate qualification in psychiatric nursing is vital as there is a lot of knowledge required to be an effective and skilled mental health clinician that is not learnt within the general nurse sphere. Having observed nursing students and newly qualified nurses undertaking a rotation in mental health services, Mr Murphy’s opinion is that they have minimal skills and experience in mental health nursing as the undergraduate Bachelor degree does not adequately train nurses to practice in mental health nursing. On this basis, Mr Murphy says he holds grave concerns about the capacity of any nurse without mental health training or experience to properly care for patients.

[82] Mr Murphy says he has regard to the Mental Health Agreement when recruiting mental health nurses to review the responsibilities and duties of the relevant classification. He says that the responsibilities, clinical duties, supervision responsibilities, level of experience and qualifications are all important when searching for the right candidate.

[83] As regards the NMBA’s Decision-making framework for nursing and midwifery (2020) (DMF), and the NMBA Registered Nurses Standards for Practice (Standards), Mr Murphy submits that these documents are highly general and contain overarching principles and statements that apply to all nurses. While Mr Murphy agrees that they are relevant as general statements of principle relevant to clinical decision-making, he asserts that neither of them say anything about mental health nursing. Mr Murphy does not consider that the Mental Health Agreement is in conflict with them but rather, they are different documents and serve different purposes.

[84] Mr Murphy states that not every issue that comes up in the course of his work can be answered by reference to general principles about clinical decision-making, and not every issue that comes up is concerned with clinical decision-making. He asserts that in his 40 years of experience as a mental health nurse, he has never had anyone tell him to look at the NMBA practice guidelines to ascertain the duties and responsibilities attached to his specific role as a mental health nurse. Mr Murphy says that the Mental Health Agreement has always been used by management, and by him, as the reference point to determine the applicable duties and responsibilities for the particular role. Further, he says the Mental Health Agreement relevantly focuses on the clinical issues and assists him in defining the scope of his practice. He says that if he was asked to take on an advanced level of responsibility that was outside of his scope of practice according to the Mental Health Agreement, he would have a basis to refuse to perform the task. That said, Mr Murphy acknowledged that the Mental Health Agreement is not part of the regulatory scheme which applies to his professional obligations as a registered nurse. 15

2.6 Bridget Hamilton (HSU Witness)

[85] Ms Bridget Hamilton is an Associate Professor of Mental Health Nursing and Director of the Centre for Psychiatric Nursing in the Faculty of Medicine, Dentistry and Health Sciences at the University of Melbourne. Additionally, she is employed one half day per week at St Vincent’s Mental Health Services as a Clinical Nurse Consultant. Ms Hamilton is also a member of HACSU. Ms Hamilton says her move into a research-based academic career whilst also maintaining a clinical practice is quite common in health disciplines.

[86] Ms Hamilton describes the Centre at which she works as being a clinical academic centre, tasked with progressing mental health nursing practice in Victoria through research and workforce development and consultation. It is significantly aligned with the Office of the Chief Mental Health Nurse.

[87] Ms Hamilton is also employed by St Vincent Hospital as a Clinical Nurse Consultant in the Mental Health department, for which her employment is covered by the Mental Health Agreement classified at RPN5. On one day a week she performs clinical work, provides advanced practice supervision to clinicians, and fosters research in the mental health nursing space within the clinical education team in the acute inpatient service.

[88] Ms Hamilton explains that mental health services are provided by designated mental health services, which while prescribed hospitals or health services under the Mental Health Act, are essentially the “mental health” division within the health service. Designated mental health services may be further divided into “area mental health services”, although she notes that this will arise from internal administrative arrangements and is not part of the statutory scheme. Ms Hamilton says mental health services have a separate administrative and managerial structure from the health service and there is often, although not always, a Director of Mental Health Nursing. She says that the Director may or may not be on the executive of the hospital but will have their own separate organisation structure from the other departments within the health service.

[89] In describing the delegated authority under the Mental Health Act, Ms Hamilton refers to how the powers in the Mental Health Act flow from the Chief Psychiatrist to the authorised psychiatrist in a designated mental health service to a mental health nurse on the ground in a ward. The coercive and restrictive interventions under the Mental Health Act are used in acute inpatient units, secure extended care units and other places which are bed-based and can only be authorised by the authorised psychiatrist, although the Mental Health Act provides that the senior registered nurse on duty may authorise seclusion or bodily restraint (restrictive interventions) if the authorised psychiatrist is not immediately available. This must also be immediately reported to the authorised psychiatrist, who must then examine the person and determine if the restrictive intervention continues to be necessary. The authorised psychiatrist must then report the use of all restrictive interventions to the Chief Psychiatrist in order to provide reliable data and accounts of the use of restrictive practices in designated mental health services. Ms Hamilton remarks that in this way, the Mental Health Act mandates that the authorised psychiatrist maintain clinical oversight of, and ultimate responsibility for, any treatment decisions made by a mental health nurse.

[90] By contrast, EDs may have a Behavioural Assessment Room (BAR), which is a locked room, or similar facilities that are not covered by the Mental Health Act and where common law duties of care are owed to the patient. Ms Hamilton comments that the restrictions of the patient in such settings are not governed by the same law and the practices are not reportable or reviewable in the same manner as restrictive practices under the Mental Health Act. Ms Hamilton remarks that the controversy and human rights challenges around restrictive interventions are not part of the knowledge and practice of ED nurses. She observes that the restriction rates are on the rise in EDs, whilst they are on the decline in mental health specialist areas. Ms Hamilton also gave evidence regarding restraint technique training and practice and her view as to how these differ between general nursing and mental health nursing.

[91] Ms Hamilton asserts that it is absolutely necessary to have mental health nursing continue to be recognised as a real area of specialisation and that it is essential to maintain an identity of mental health nursing as a substantially different specialisation. She considers the difference between general nursing and mental health nursing as being equivalent to the difference between nursing and midwifery. Ms Hamilton does not consider that the three-year Nursing Bachelor program adequately prepares someone as an entry level mental health nurse.

[92] Ms Hamilton contends that patient and consumer care become a very biomedical set of assumptions such that patients are at risk of being corralled in an in-patient ward, waiting for medication to work. She says that patients in this setting are deprived of treatment models that focus on some of the more holistic considerations around assisting people to have agency in their life as well as to acknowledge and treat causal issues like trauma, abuse experiences, etc. Essentially, she believes that the principles of good psychiatric practice can fall away and become second to mainstream medical treatment. Ms Hamilton believes that mental health nursing work can be misconstrued by colleagues from the other biomedical fields with the result that mental health nurses are pressured to focus on treatment adherence first and relational and therapeutic interventions later, or not at all.

[93] Ms Hamilton considers psychiatric/mental health nursing is an underdeveloped practice and intellectual space in many services as a result of mainstreaming and that the deskilling and de-specialisation of mental health practice has become a very poor consequence of the process. She proffers that if mental health nurses lost coverage of the Mental Health Agreement, there would be lack of clarity for those nurses around the development and opportunity to use their specialist skills. Ms Hamilton contends that the Mental Health Agreement supports the notion that mental health nursing is a specialist field and losing that specialisation will undermine recruitment.

2.7 Daniel Darmanin (HSU Witness)

[94] Mr Daniel Darmanin is employed as a Clinical Nurse Consultant at the Royal Children’s Hospital in the Banksia Ward, which provides specialist mental health services to young people aged between 13 and 18 years old. He is employed under the Mental Health Agreement as a RPN5.1. He is also a member of HACSU and a HACSU workplace delegate. He describes the Banksia Ward as being a specialist mental health ward within the Royal Children’s Hospital, where patients can only be referred by a mental health practitioner such as a psychologist or from within the hospital (for example, the ED or a general ward).

[95] The Banksia Ward is staffed by five nurses on the morning shift, five nurses on the afternoon shift and four nurses on the night shift. Mr Darmanin says that the staffing levels cater for up to one “special nurse”, that is a nurse providing 1:1 nursing with a patient of higher risk or one nurse in the intensive care unit within the ward. All registered nurses employed in the Banksia Ward are either a Registered Psychiatric Nurse or are training to be one. Trainees are often undertaking their graduate year and are employed on one-year contracts with the expectation that they will undertake a postgraduate degree in mental health upon completion. No general nurses are employed in the ward. He asserts that while the Banksia Ward is clinically supervised by the consultant psychiatrist, all the staff have a role to play in treatment planning, risk mitigation and risk cognisance. There is a clear expectation that mental health nurses are undertaking and taking responsibility for risk assessments.

[96] Mr Darmanin described the clinical component of his role and considers that a postgraduate qualification in mental health nursing is essential to the performance of the role of Registered Psychiatric Nurse. He comments that mental health clinical practice is not necessarily something that is innate in people, even nurses. He maintains skills such as de-escalation, performing risk assessments and prescribing appropriate medications are specialist skills that need to be learned and developed through training and practice. Mr Darmanin suggests a nurse with postgraduate clinical qualifications in mental health nursing can provide a better level of care to patients than one who does not hold these qualifications. Mr Darmanin also observes that the need to reduce restrictive and coercive practices is reinforced on a daily basis in mental health nursing and asserts that mental health clinicians with that training are less coercive and always work to avoid restrictive interventions. Mr Darmanin occasionally performs shifts in the ED at the Royal Children’s Hospital. He says that there are two mental health clinicians from the multidisciplinary team who work in the ED.

[97] Mr Darmanin considers that a de-escalation skill set is something that delineates the difference between general and mental health nurses such that mental health nurses are often the ones who lead consumer de-escalation, regardless of the clinical setting. He says that the Mental Health Agreement is an important source of information for the functions, duties and responsibilities of mental health nurses and that the expectations of nurses at different grades is something that needs to be clearly delineated. Mr Darmanin regards this as a very useful document for junior staff to understand how the classifications and positions inter-relate at an operational level, as well as how to move through the classifications. Mr Darmanin says that it is critical that mental health nurses have the clear elucidation of what is expected and from whom as set out in the Mental Health Agreement because if the roles and responsibilities are not clearly spelled out then employers can further dilute roles and place more expectations on clinicians practising at any level.

[98] Mr Darmanin acknowledges that the Mental Health Agreementdoes not contain information about the clinical decision-making framework and while he agrees that the NMBA’s DMF is concerned with clinical decision-making and that it and the DMF Standards are relevant to nurses’ scope of practice, he submits that these documents are very ‘high level’ and that neither of them, nor the NMBA’s “registration standards, codes, guidelines and professional practice frameworks” are concerned with the detail of operational matters pertaining to mental health nursing.

2.8 Peter Crowe (HSU Witness)

[99] Mr Peter Crowe is a registered psychiatric nurse, employed by Monash Health at Dandenong Hospital as a senior clinician in the Crisis Assessment and Treatment Team (CAT team). He is employed under the Mental Health Agreement and is classified as a RPN3. He is also a member of HACSU and is the HACSU delegate for the Dandenong CAT team. Mr Crowe says he currently performs the roles of mental health clinician in the CAT team and mental health clinician in the EPS within the ED. He also performed work as a mental health clinician in the Police, Ambulance and Clinical Early Response (PACER) team at Monash in 2019. Mr Crowe typically works three days in the ED and two days in the CAT team per week when rostered on the day shift.

[100] Mr Crowe says the CAT team has a physical building located near the mental health wards at Dandenong Hospital, and is part of the Mental Health Precinct in Dandenong. Despite having a physical premises, Mr Crowe says that the work of the CAT team is predominantly performed in the community by seeing patients in their homes or wherever required, as there is an understanding that a less restrictive treatment option is preferable such that it is better to treat people in their own environment in the community. The CAT team also does patient outreach whereby they can assess a person in their home environment, which can avoid the scenarios in which a person finds the hospital environment very uncomfortable.

[101] As a mental health clinician in the CAT team, Mr Crowe assesses whether the person he is seeing requires treatment in a hospital setting. If he thinks hospitalisation is required, he will initiate a “direct admission” to the inpatient mental health ward by calling the “Bed Manager” who will advise whether there is capacity to admit a patient. This process is used, he says, in circumstances where hospitalisation is required and the person is happy to come into hospital. However, Mr Crowe remarks that direct admissions are quite rare due to the wards usually being full. Where this is the case, the patient will be admitted into the ED, after which EPS will manage their care until a bed becomes available and the patient can be moved to an inpatient unit.

Discrimination

[435] The HSU has also submitted the Replacement Nurses Agreement discriminates against mental health nurses by changing the criteria for coverage from one which operates by reference to the duties performed to one operated by reference to location. The HSU says that by doing so, the Replacement Nurses Agreement discriminates against mental health nurses by treating them differently to other nurses and this is to their detriment because they are deprived of the classification structure in the Mental Health Agreement and those provisions setting out their duties. The HSU submits this detrimental outcome demonstrates that the employees proposed to be covered by the Replacement Nurses Agreement have not been fairly chosen. The ANMF and VHIA submit the proposed coverage clauses do not result in any change in coverage or the status quo. Their position is that the proposal is consistent with the historical approach to coverage that has been determined by the organisational test. We agree and are satisfied no issue of discriminatory treatment arises.

(b) whether the proposed coverage in each of the replacement agreements will promote the fair and efficient conduct of bargaining in relation to each of the replacement agreements

[436] To recap, the HSU has advanced the following propositions:

(a) As the proposed coverage is uncertain, it is difficult to bargain and this does not promote the fair and efficient conduct of bargaining;

(b) If the proposed coverage is found to be appropriate, there will be the need to address the provisions set out in clause 99 of the Mental Health Agreement and relativity issues between them and the conditions applying to nurses who are not mental health nurses;

(c) If the proposed coverage is found to be appropriate, and the HSU made a claim for the equivalent classifications as those applying under the Mental Health Agreement to be included in the Replacement Nurses Agreement, subsequent negotiations would likely delay the finalisation of the Replacement Nurses Agreement; and

(d) The claims made by the ANMF and VHIA regarding current confusion, disputation and a “demarcation culture” are devoid of merit.

[437] By way of contrast, the VHIA’s position is:

(a) If the Commission answers the agreed questions in the positive, all bargaining representatives will have a clear understanding of the scope of both Replacement Agreements and this will promote the fair and efficient conduct of bargaining;

(b) The Nurses Agreement already provides for the employment of any nurse, including a registered nurse with post-registration qualifications in mental health;

(c) A claim for the inclusion of clause 99 would merely convert the Nurses Agreement into the Mental Health Agreement, would go against the organisational distinction warranting the mental health exclusion and is inappropriate because it is inevitable any nurse in an ED Hub will need to work across an entire department and be flexible in the duties they undertake when doing so; and

(d) A negative answer to the questions posed would risk ongoing disputation (a view shared by the ANMF).

[438] Similarly, the ANMF submits that despite the previously clear historical demarcation, confusion and consequent disputation have arisen but this will be eliminated by the proposal for coverage clarification and allow the Replacement Nurses Agreement to be put out to a vote. The ANMF contends that there will be a flow-on effect for the Mental Health Agreement and if its proposal for coverage clarification is accepted, the interests of promoting fair and efficient bargaining with respect to the replacement agreements will have been served.

[439] The ANMF also refutes the suggestion its proposed coverage clarification is unclear. It says that the HSU has neither identified a problem with it nor suggested an alternative means of resolving potential disagreements about coverage. The ANMF submits the HSU’s position regarding clause 99 and relativities is merely speculative.

[440] In summary, the ANMF and VHIA submit that a finding that the proposed definitions are appropriate will promote the fair and efficient conduct of bargaining because it will clarify coverage and enable the Replacement Agreements to be put to a vote. However, the HSU contends that such a finding will prolong bargaining as it will seek the inclusion of clause 99 of the Mental Health Agreement into the Replacement Nurses Agreement and a discussion regarding relativities. This in turn has resulted in the ANMF and VHIA submitting that the advancement of such claims would simply be an attempt to convert the Nurses Agreement into the Mental Health Agreement when the Nurses Agreement already provides for the employment of any nurse.

[441] It is apparent that each of the parties holds the view that acceptance by us of their position will clarify and resolve all matters. The parties’ respective assertions and submissions indicate there will, depending on the outcome we determine, either be a threat of ongoing disputation (the contention of the ANMF and VHIA if its position is not accepted) or the requirement for further, involved bargaining (the contention of the HSU, if its position is not accepted). We do not consider the various positions the parties have advanced are determinative either way.

(c) in relation to each of the replacement agreements, the interests of the employers and the employees proposed to be covered by that replacement Agreement

[442] The HSU contends that the evidence before the Commission illustrates the high value its members place on the Mental Health Agreement. The HSU emphasised testimony going to the use of the Mental Health Agreement by employees in their day-today work to ensure they are operating within the agreed role responsibilities. In particular, it was said that employees consider the Mental Health Agreement recognises their skills and defines their roles, responsibilities and duties. The HSU dismissed the suggestion that a ‘demarcation culture’ would pervade the ED Hubs if different agreements were to cover the employees and submits that that Monash Hospital/Monash Health considers it most appropriate to employ the mental health nurses who work in its ED Hub under the Mental Health Agreement.

[443] The ANMF submits that certainty regarding coverage both in the immediate and longer term is in the interests of employees covered by both agreements, as is being able to work under the same agreement in a cohesive, multi-disciplinary environment with nurses of different specialities. Further, the ANMF contends that that clarification of coverage will avoid measuring and assessing each employee’s job, work and time spent performing mental health duties, which it says is the outcome contended for by the HSU.

[444] The ANMF also submits the HSU’s duties-based approach has constructional issues to which the HSU has not adequately responded, namely:

• all those employees who are not engaged in direct care as a “mental health nurse” would be excluded from the definition of “Employee” in the Replacement Mental Health Agreement; and

• “mental health nurses” notemployed by one of the Employers party to the Mental Health Agreement would be excluded from the coverage of both Replacement Agreements.

[445] The ANMF emphasised that throughout Australia outside of Victoria, public-sector nurses with different specialisations are covered by a single enterprise agreement.

[446] The VHIA says it is the position of each of the Health Services that coverage is determined by an organisational test. It submits that its interpretation will enable employers to administer the agreements with greater confidence, absent inevitable disputes. It maintains the duties-based construction of the HSU is unworkable. The VHIA contends the ED Hub service delivery model requires clinicians to work collaboratively, flexibly and closely with one another and submits, having regard to evidence from HSU witnesses, the application of multiple enterprise agreements poses a risk of engendering a demarcation culture, which is inherently inconsistent with this requirement.

[447] The VHIA also raises issues with clauses 91 and 99 of the Mental Health Agreement. As to clause 99, the VHIA position is that, of itself, it neither creates nor protects mental health nursing positions and nor does it provide a form of accreditation, registration, specialist recognition or status for mental health nursing. The VHIA’s issue with clause 91 is that if the HSU’s construction was adopted, it would require the appointment of prescribed positions and numbers which would be unworkable where non-mental health services already have established reporting and staffing structures. In the alternative, the VHIA submits the purported “protections” the HSU says are afforded by the references to minimum staffing levels in “inpatient services” and “inpatient units” in clause 91 have no application to the ED Hub operating model. The VHIA also criticises the descriptors in the Mental Health Agreement on the basis that their detail and volume are not consistent with promoting modern and efficient organisational structures or work practices and notes clauses 96 and 14 of the Agreement requires them to be modernised.

[448] As outlined above, our evaluation of the evidence of the HSU witnesses is that while some gave evidence that they use the Mental Health Agreement as a point of reference in relation to their tasks, responsibilities and duties, they also said the Mental Health Agreement does not speak to their clinical practice and decision-making. We consider the clause 99 ‘point of reference’ and skills recognition and definition of role contentions are diluted by further observations we have made above:

• That the substance of clause 99 of the Mental Health Agreement has remained virtually unchanged over the years;

• The Mental Health Agreement classifies nurses covered for industrial purposes and does not imply specialist registration;

• The NMBA, which sets a nurse’s scope of practice and grants the authority to practice, only recognises Registered Nurses and Enrolled Nurses; and

• The standards and policies that all nurses must meet and comply with are set by AHPRA.

[449] We further observe that the qualification prerequisites in clause 99 are virtually static. The RPN 3 definition states that, effective from 1 July 2005, the “holding a postgraduate diploma in psychiatric/mental health nursing or of having completed a specialist undergraduate psychiatric nursing program or a specialist post basic course of training which lead to registration as a Division 3 Nurse” has been desirable. Where this morphs into a requirement to hold qualifications in each of the RPN4 – RPN7 classifications, the qualification prerequisites are specified in identical terms to the RPN3 definition.

[450] Additionally, we consider the fact that all other Australian States and Territories in Australia cover public-sector nurses with different specialisations via a single enterprise agreement without separate mental health agreements further dilutes the skills recognition and definition of role contentions of the HSU.

[451] Finally, with the exception of Ms Gallaher, the proposed definitions of coverage will not have an impact on the HSU witnesses themselves, in terms of agreement coverage due to the service, department, unit or program in which they are employed. As we have stated, we consider they and other employees in similar circumstances will continue to be fairly chosen because of the proposed Replacement Mental Health Agreement’s references to “mental health services” as being organisationally distinct services, departments, units or programs. Further, we observe the Replacement Nurses Agreement would cover both Registered Nurses and Enrolled Nurses and that the proposed coverage definitions for both Replacement Agreements will not alter the status, powers or responsibilities that exist pursuant to the Mental Health Act as far as employees who are registered nurses are concerned.

[452] In approaching the question of whether the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate having regard to the interests of the employees to be covered by each of the replacement agreements, we are not persuaded it is appropriate for there to be a requirement to determine whether am individual employee is engaged solely or predominantly in the provision of mental health services by reference to their duties/job. Further, we consider that avoiding the uncertainty and practical challenges of undertaking such analysis is in the interests of both employees and employers. There are a range of considerations we have taken into account:

• In multi-disciplinary, integrated service delivery models such as an ED Hub, there is a need for flexibility, cohesion and collaboration;

• In such settings, a requirement to assess and determine what proportion of a nurse's duties are responsive to a particular patient's mental health condition as opposed to other presentations would be difficult and problematic, particularly if the nurse is engaged in work across the service, department, unit or program in which they are employed;

• The duties of the nurses may change from day to day, depending on the presentation of the patients who fall within their care; and

• There are practical considerations such as on-the-job supervision and administrative requirements of time recording and payroll to take into account.

[453] Accordingly, we are, on balance, satisfied that the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate having regard to, in relation to each of the Replacement Agreements, the interests of the employers and the employees proposed to be covered by that Replacement Agreement.

(d) the existing coverage of the Nurses Agreement and the Mental Health Agreement

[454] It is uncontroversial amongst the parties that Victorian nurses working in public hospitals are covered by either the Nurses Agreement or the Mental Health Agreement. Further, there are 17 employers listed in Schedule 1 to the Mental Health Agreement. These employers are “designated mental health services”under the Mental Health Actand are also included within the list of Employers in Appendix 1 to the Nurses Agreement (which lists 125 health sector agencies). Clearly the two Agreements differ in a number of respects and there has been particular focus on clause 99 of the Mental Health Agreement, for which there is no equivalent in the Nurses Agreement. The parties have referred us to both the Mental Health Act and the Safe Patient Care Act as part of the arguments regarding existing coverage that they have advanced.

[455] As regards the Nurses Agreement:

(a) It covers the Employers as defined in clause 4.1(p), all Employees as defined in clause 4.1(o) and each of the Unions named by the Commission as covered;

(b) The “Employers” are listed in Appendix 1 to the Nurses Agreement;

(d) An “Enrolled Nurse” is defined in clause 4.1(q) by reference to Division 2 Enrolled Nurses of the Register of Nurses under the Health Practitioner Regulation National Law 2009 but excludes “a person employed solely or predominantly in the provision of public mental health services”; and

(e) A “Registered Nurse” is defined in clause 4.1(ii) by reference to Division 1 on the Register of Nurses under the Health Practitioner Regulation National Law 2009 but does not include “a Registered Nurse who is employed solely or predominantly in the provision of public mental health services.”

[456] The term“public mental health services” is not defined. Each of the parties have submitted this term must be defined by reference to the Mental Health Agreement. We prefer the interpretation advanced by the ANMF and VHIA.

[457] We consider the references to the provision of “public mental health services” must be construed as a reference to the provision of services in a discrete organisational sense by the employer, as distinct from the duties of the employees. The inclusion of the word “public” in the term “public mental health services” is significant because when used in the health sector, “public” is used in reference to the nature of a service in an organisational sense, rather than an occupational sense. We consider the use of the word “provision” is also significant. Whereas a person performs duties, an organisation provides services.

[458] As regards the Mental Health Agreement:

(a) It covers the Employers as defined in clause 9.1(j), all Employees as defined in clause 9.1(i) and the Unions named by the Commission as covered;

(b) The 17 “Employers” covered are listed in Schedule 1 to the Mental Health Agreement; and

(c) “Employee” is defined in clause 9.1(i) to mean a person employed by an Employer and “engaged solely or predominantly in the provision of Mental Health Services” in classifications/occupations within the Agreement such as a PEN and RPN.

[459] In clause 9.1(t), “Mental Health Services/ Psychiatric Services” is defined as follows:

“The delivery of human services concerned with the prevention of mental illness and the assessment, rehabilitation, maintenance and support of those persons who may be at risk of or suffering from mental illness or psychiatric disability by employers listed in Schedule 1.”

(our emphasis)

[460] We consider the use of the words “delivery of human services” and “by employers” covered by the Agreement is significant. They speak to an organisational provision/delivery of the Mental Health Services described within clause 9.1(t) by the employers listed in Schedule 1, each of which is a “designated mental health service” under the Mental Health Act. To be covered by the Mental Health Agreement, a nurse must be employed by a Schedule 1 employer and engaged solely or predominantly in the delivery of the Mental Health Services it provides, in a PEN or RPN classification. That there is a nexus in the definition of “Mental Health Services/Psychiatric Services” between the delivery of the human services it outlines and an employer falling within Schedule 1 of the Mental Health Agreement lends weight to our interpretation. The “Mental Health Services/ Psychiatric Services” that are defined are not duties at large.

[461] We have had regard to the references made by both the ANMF and VHIA to the use throughout the Mental Health Agreement of the term “services” in a range of contexts and references to working within “mental health settings”, “as part of the specialist mental health team”, “bed based services”, “in-patient services”. We consider this use lends weight to the interpretation they advance. We have also noted the various identifiable services, departments, units or programs sitting within the organisational structures of Schedule 1 employers in which the various HSU witnesses are employed, which are properly covered by the Mental Health Agreement.

[462] We have taken into account the fact that the existing coverage of the Mental Health Agreement includes classifications that extend beyond nurses; for example Health Professionals, Health and Allied Services Employees and Management and Administrative Employees. This supports the interpretation of coverage that has the Mental Health Agreement covering employees in organisationally distinct Mental Health Services, as opposed to just those employees engaged in Mental Health Services involving direct care. We do not consider the submissions of the HSU provided an answer on this aspect of coverage. Further, we have noted that it is not in contest that a mental health nurse engaged solely or predominantly in mental health duties but not employed by an employer listed in Schedule 1 of the Mental Health Agreement, cannot be covered by the Mental Health Agreement and we consider this weighs in favour of the proposed definitions of coverage.

[463] We have also considered the HSU submission that the Mental Health Act provides the distinguishing feature necessary for delineating coverage for employers covered by both the Mental Health Agreement and the Nurses Agreement because it imposes a separate organisational structure. However, we are not persuaded that the Mental Health Act imposes a discrete organisational structure with respect to the provision of Mental Health Services by a “designated mental health service” (defined by s 3 of the Mental Health Act). The chief psychiatrist position under the Mental Health Act, for example, is an employee of the Department with no apparent organisational responsibilities within the 17 designated mental health services. The authorised psychiatrist position, while required to be the subject of appointment by a designated mental health service, seems to us to be a position of oversight in relation to the exercise of certain powers provided for in the Mental Health Act. The powers are able to be delegated and it is possible for there to be multiple appointees.

[464] Ultimately, having reviewed the ordinary meaning of the words of both the Nurses Agreement and the Mental Health Agreement as a whole and in context and having regard to the applicable industrial context and reality, we consider the existing coverage of the Nurses Agreement and the Mental Health Agreement is determined by reference to the way in which the work is organised. Similarly, we consider the proposed definitions of coverage of the Replacement Agreements determine coverage in the same way. As such, we are satisfied the proposed definitions of coverage of the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate.

(f) the desirability that coverage of the respective replacement agreements be mutually exclusive

[465] The parties agree that it is desirable that coverage of the respective replacement agreements be mutually exclusive. We are satisfied that this is appropriate and consider the proposed coverage provisions deliver this. We consider the duties-based construction proffered by the HSU suffers from a potential to exclude certain nurses from coverage of both Replacement Agreements.

(g) any other matters that the Commission deems relevant

[466] The HSU contends that a consequence of a finding that the proposed definitions for coverage for the Replacement Agreements are appropriate would be mental health nurses being covered by the Nurses Agreement. We are not persuaded the transitioning issues that have been assumed by the HSU will materialise. This is because we have not been persuaded the agreement coverage for mental health nurses working in organisationally distinct settings providing specialist and discreetly delivered mental health services will change. We also do not accept the proposition of the HSU that determining the coverage question in the affirmative will sideline the application of the Mental Health Act. We are satisfied the Mental Health Act will continue to operate on its terms as far as registered nurses working within designated mental health services are concerned.

[467] The ANMF and VHIA made submissions to the effect that it is in the public interest that the question regarding coverage is resolved because if resolved in the affirmative, the establishment of the ED Hubs will be able to continue and the community will then be able to experience their benefits.

[468] Clearly it is in the public interest for the dispute between the parties to be resolved.

5. Conclusion

[469] The agreed questions for arbitration require us to determine whether the proposed definitions of coverage for the Replacement Agreements are appropriate having regard to seven considerations. For the reasons given above, the agreed questions for arbitration are answered in the following way:

1. Is the proposed definition of coverage of the Replacement Nurses Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

Answer: Yes

2. Is the proposed definition of coverage of the Replacement Mental Health Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

Answer: Yes.

DEPUTY PRESIDENT

Appearances:

Mr H Borenstein QC and Ms K Burke for Health Services Union
Mr E White and Ms E Levine for Australian Nursing and Midwifery Federation
Mr J Bourke QC and Ms F Leoncio for Victorian Hospitals’ Industrial Association

Hearing details:

2020.
Melbourne, by Microsoft Teams.
5, 6, 16, 17 and 30 November.

Printed by authority of the Commonwealth Government Printer

1 See [9] of the Arbitration Agreement; DCB6921.

2 Now the Department of Families, Fairness and Housing.

3 [2020] FWC 5314.

4 Healey witness statement 19 August 2020 at paragraph 10; DCB41.

5 Ibid at paragraph 14, DCB42; and DCB57.

6 Transcript 6 November 2020 at PN633-634.

7 Ibid at PN526-530.

8 Ibid at PN533-534.

9 Ibid at PN535.

10 Ibid at PN612-614.

11 (1997) 79 FCR 43.

12 Transcript 16 November 2020 at PN1949-1953.

13 Ibid at PN1936.

14 Transcript 6 November 2020 at PN883-884.

15 Transcript 6 November 2020 at PN806.

16 (1997) 79 FCR 43.

17 Gilbert witness statement 23 September 2020 at paragraph 46; DCB3588.

18 Ibid at paragraph 36; DCB3586.

19 Transcript 17 November 2020 at PN2505.

20 Transcript 17 November 2020 at PN2521.

21 Transcript 17 November 2020 at PN2523.

22 Gilbert witness statement 23 September 2020 at paragraph 75; DCB3594.

23 Ibid at paragraph 77; DCB3595.

24 Ibid at paragraph 78; DCB3595.

25 Ibid at paragraph 80; DCB3595.

26 Ibid at paragraph 89; DCB3597.

27 Ibid at paragraph 93; DCB3597.

28 Annexure PH-3l; DCB57.

29 Transcript 17 November 2020 at PN2928.

30 Transcript 17 November 2020 at PN2873.

31 Transcript 17 November 2020 at PN2875.

32 O’Hara witness statement 23 September 2020 at paragraph 56; DCB3612.

33 Transcript 17 November 2020 at PN3022-3023.

34 DCB5391.

35 DCB5954.

36 Transcript 17 November 2020 at PN3019.

37 Transcript 17 November 2020 at PN2079-2080.

38 Nagle witness statement 23 September 2020 at paragraph 32; DCB7305.

39 Monash Health, Peninsula Health, Western Health, Barwon Health, St Vincent’s Hospital and Melbourne Health.

40 Nagle witness statement 23 September 2020 at paragraph 45; DCB7308.

41 Crowe witness statement 19 August 2020 at paragraphs 48-49, DCB219; Darmanin witness statement 19 August 2020 at paragraphs 27-29, DCB233; Gallaher witness statement 19 August 2020 at paragraphs 27-31, DCB206-207; Healey witness statement 19 August 2020 at paragraph 55, DCB50; Hamilton witness statement 19 August 2020 at paragraphs 40-42, DCB227; Murphy witness statement 19 August 2020 at paragraphs 31-32, DCB240-241; and Rebis witness statement 19 August 2020 at paragraphs 45-51, DCB191-192.

42 Nagle witness statement 23 September 2020 at paragraph 64; DCB7311.

43 Ibid at paragraph 65; DCB7312.

44 Annexures TN-8 and TN-9 (SCB8774-8775) to the Nagle supplementary witness statement 4 November 2020.

45 Darmanin witness statement 19 August 2020 at paragraphs 8-16, DCB229-230; paragraphs 19-22, DCB231; Hamilton witness statement 19 August 2020 at paragraph 15, DCB222.

46 Murphy witness statement 19 August 2020 at paragraphs 11-16; DCB236-237.

47 Rebis witness statement 19 August 2020; DCB182-200.

48 Crowe statement 19 August 2020 at paragraphs 16-24; DCB214-215.

49 Ibid at paragraphs 25-36; DCB215-217.

50 Gallaher witness statement 19 August 2020 at paragraph 5; DCB201-202.

51 Ibid at paragraphs 5-7; DCB201-202.

52 Crowe witness statement 19 August 2020 at paragraphs 37-44; DCB217-218.

53 See Nurses (Victorian Health Services) Award 1992 and the definition of Registered Nurse at Part B, clause 3(r).

54 McCullough witness statement 23 September 2020 at paragraph 42; DCB6989.

55 Section 4, schedule 7.

56 Section 3, schedule 5.

57 Section 5, schedule 6.

58 McCullough witness statement 23 September 2020 at paragraph 52(a); DCB6991.

59 See clauses 96 and 14; McCullough witness statement 23 September 2020 at paragraph 51, DCB6991.

60 Transcript 16 November 2020 at PN1633-1634.

61 McCullough witness statement 23 September 2020 at paragraph 56, DCB6992; McCullough supplementary witness statement 4 November 2020 at paragraph 8, DCB8710.

62 McCullough supplementary witness statement 4 November 2020 at paragraph 13, DCB8711-DCB8712.

63 [2017] FWCFB 5826 at [27], see also Aerocare Flight Support Pty Ltd t/as Aerocare Flight Support v Transport Workers’ Union of Australia [2018] FCAFC 74 at [12] in which the Full Court describes the guidance summarised by the Full Bench at [27] as persuasive.

64 VHIA Closing submissions dated 26 November 2020 at [62] and references therein.

65 Transcript 17 November 2020 at PN2636.

66 Ibid at PN2292.

67 In the DHHS Guidelines starting at DCB120, see the last paragraph in section 1 on page 1: “The guidelines will also be shaped by advice from existing models including Psychiatric Assessment and Planning Units (PAPUs) in Victorian EDs. Other issues may also be identified during the development and implementation process which may also contribute to further refinements in the service model”; see also the last sentence in section 6.2 (CB 125): “Each health service formulates its own model of care for commonly presenting patient cohorts”.

68 Per Jones v Dunkel (1959) 101 CLR 298, 321. See also Huang v Rheem Australia (2005) 141 IR 310 at [32]-[34].

69 SCB8776.

70 Transcript 16 November 2020 at PN1885-1888; PN1960.

71 Ibid at PN1906-1913; PN1937-1947.

72 Transcript 17 November 2020 at PN2180; PN2210-2218, especially PN2218.

73 Ibid at PN2294.

74 See DCB108, and Transcript 16 November 2020 at PN1678–1694 (McCullough XXN) and PN2257 (Nagle XXN).

75 SCB8760–61.

76 Cf UFUA v MFESB (2010) 193 IR 293, [60] (FWAFB).

77 There are 125 health services (employers) listed in Appendix 1 to the General Nurses Agreement. All of the 17 employers in Schedule 1 to the Mental Health Agreement are included in that list of 125.

78 The designated mental health services in Victoria are listed in Schedule 1 of the Mental Health Regulations. They are the same 17 entities as the 17 employers in Schedule 1 to the Mental Health Agreement. Fourteen are public health services listed in Schedule 5 to the Health Services Act 1988 (Vic). Two (Mildura Base Hospital and South West Healthcare) are public hospitals listed in Schedule 1 to the Health Services Act, and two (Mercy Public Hospitals Inc and St Vincent’s Hospital (Melbourne) Ltd) are denominational hospitals listed in Schedule 2 of the Health Services Act.

79 A designated mental health service is obliged to have regard to the mental health principles in s 11(1) of the Act when providing mental health services, per s 11(2) and (3).

80 Mental Health Agreement at Clause 99.15(c)(vii).

81 Transcript 25 September 2020 at PN533-534; see also PN518 and PN524.

82 Rebis reply witness statement 19 October 2020 at paragraphs 5-7; DCB7592-7593; Transcript 6 November 2020 at PN880-883.

83 Darmanin reply witness statement 19 October 2020 at paragraph 7; DCB7603; Transcript 6 November 2020 at PN944-948.

84 Application by CPSU, the Community and Public Sector Union [2020] FWC 265 at [52] (DP Kovacic).

85 Transcript 16 November 2020 at PN1708-1712.

86 Transcript 17 November 2020 at PN2317-2319.

87 Ibid at PN2715-2719.

88 Transcript 16 November 2020 at PN1746.

89 See ANMF submissions, [102], at DCB3575; VHIA submissions, [84], at DCB6964.

90 McCullough supplementary witness statement 4 November 2020 at paragraph 13; SCB8711-12.

91 Transcript 17 November 2020 at PN2538.

92 Ibid at PN2538-2543; PN2734-2737.

93 Ibid at PN2296.

94 Gilbert witness statement 23 September 2020 at paragraph 114; DCB3602.

95 See Gallaher witness statement 19 August 2020 at paragraph 27, DCB206; Crowe witness statement 19 August 2020 at paragraph 48, DCB219; Rebis witness statement 19 August 2020 at paragraph 49, DCB192; Murphy witness statement 19 August 2020 at paragraph 32, DCB241.

96 The HSU submits the only witness who was asked about the interaction between the Standards and the Agreement was John Murphy and he agreed that the two did not overlap. See Transcript 6 November 2020 at PN798–801.

97 DCB6644.

98 The HSU relies on the definition of ‘Scope of Practice’ in the DMF at CB 6657 and submits that Ms O’Hara in cross-examination did not dispute that matters that fall within the definition of scope of practice may be included in an enterprise agreement: PN2829-2835; PN2838-41.

99 Transcript 6 November 2020 at PN792.

100 Murphy witness statement 19 August 2020 at paragraphs 31–32, DCB 240–241; Transcript 6 November 2020 at PN701, PN717, PN719.

101 Rebis witness statement 19 August 2020 at paragraphs 45–48, DCB 191–192; Transcript 6 November 2020 at PN846-851, PN881.

102 Darmanin witness statement 19 August 2020 at paragraph 27, DCB233; Transcript 6 November 2020 at PN925-926, PN947.

103 See Gilbert witness statement 23 September 2020 at paragraph 71, DCB3593; see also ANMF Tender Bundle, documents 39-44, 48 and 49 (DCB5981-6587, DCB6731 and DCB6809).

104 Transcript 17 November 2020 at PN2303-2306; see also PN2570.

105 Transcript 17 November 2020 at PN2285-2286 and PN2339.

106 Transcript 6 November 2020 at PN702-704, PN844-846, PN849, PN852, PN881, and PN 925-928.

107 Transcript 6 November 2020 at PN693, PN697, PN698; Transcript 16 November 2020 at PN1932-1933.

108 Transcript 17 November 2020 at PN2637-2639.

109 At SCB8741 and SCB8748.

110 Transcript 6 November 2020 at PN513-518.

111 Transcript 17 November 2020 at PN3009-3010.

112 Transcript 16 November 2020 at PN1100.

113 Transcript 16 November 2020 at PN1102.

114 Mental Health Agreement, clause 19.12(b)(ii) and subsequent classifications which refer back to this requirement by the use of the phrase “within the context of the definitions above”: clauses 99.5 99.13; 99.14(b); 99.15(b); 99.16(b); 99.17(b), 100.1(a) [SCB8457-8458, 8460-8461, 8465, 8467, 8836].

115 See relevant extracts at SCB8823, 8824, 8825.

116 See relevant extracts at SCB8825.

117 See relevant extracts at SCB8833.

118 Clause 99.16(c) extracted at SCB8834.

119 See relevant extracts at SCB8837.

120 See relevant extracts at SCB8838.

121 Clauses 196.3(j) and 229.4 extracted at SCB8838-8839.

122 Schedule 3, cl 2.4, 3.4 extracted at SCB8841

123 Schedule 3, cl 3.5 extracted at SCB8841-8842.

124 Schedule 7 extracted at SCB8844-8846.

125 HSU Submissions at [68]; DCB18.

126 Gallaher witness statement 19 August 2020 at paragraph 13, DCB203; Hamilton witness statement 19 August 2020 at paragraphs 18-19, DCB222-223.

127 Darmanin witness statement at paragraph 2 and 22, DCB228, 231-232; Transcript 6 November 2020 at PN931-936; McCullough witness statement 23 September 2020 at paragraph 35(a), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(a), DCB7303.

128 Transcript 6 November at PN935-936.

129 Hamilton witness statement 19 August 2020 at paragraphs 14-15, DCB222; McCullough witness statement 23 September 2020 at paragraph 35(a), DCB6987.

130 Murphy witness statement 19 August 2020 at paragraph 20, DCB238; McCullough witness statement 23 September 2020 at paragraph 35(b), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(c), DCB7304.

131 Transcript 6 November 2020 at PN711-714.

132 Crowe witness statement 19 August 2020 at paragraph 17, DCB214; McCullough witness statement 23 September 2020 at paragraph 35(d), DCB 6987; Nagle witness statement 23 September 2020 at paragraph 30(g), DCB7304.

133 Crowe witness statement 19 August 2020 at paragraphs 27-28, DCB215; Transcript 16 November 2020 at PN1048-1062; McCullough witness statement 23 September 2020 at paragraph 35(e), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(d), DCB7304.

134 Rebis witness statement 19 August 2020 at paragraph 29, DCB187; McCullough witness statement 23 September 2020 at paragraph 35(e), DCB 6987; Nagle witness statement 23 September 2020 at paragraph 30(e), DCB7304.

135 Morgan witness statement 23 September 2020 at paragraph 9, DCB3621.

136 Gallaher witness statement 19 August 2020 at paragraph 6, DCB202; McCullough witness statement 23 September 2020 at paragraph 35(g), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(f), DCB7304.

137 Rebis witness statement 19 August 2020 at paragraph 2, DCB182; Transcript, 6 November 2020 at PN870-874; McCullough witness statement 23 September 2020 at paragraph 35(c), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(h), DCB7304.

138 Gallaher witness statement 19 August 2020 at paragraph 5, DCB201-202; McCullough witness statement 23 September 2020 at paragraph 35(f), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(b), DCB7303; Morgan witness statement 23 September 2020 at paragraph 9, DCB3621.

139 Crowe witness statement 19 August 2020 at paragraph 12 and 37-44, DCB213, 217-218; McCullough witness statement 23 September 2020 at paragraph 35(h), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(h), DCB7304.

140 Attachment KG-1, DCB210.

141 Attachment KG-1, DCB211.

142 Nagle supplementary witness statement 4 November 2020 at paragraph 11, DCB8765; Attachment TN-9, SCB8775.

143 Gallaher witness statement 19 August 2020 at paragraphs 16-17, DCB204.

144 Transcript 16 November 2020 at PN1875-1881.

145 Transcript 17 November 2020 at PN2347.

146 Transcript 16 November 2020 at PN1885-1888.

147 HSU Reply Submissions at paragraph 26, DCB7578.

148 Transcript 16 November 2020 at PN1313, PN1316-1321.

149 Which was defined in s.3 of the Mental Health Act 2014 (Vic) as “a ward, unit, department or component of a hospital managed by a nurse or midwife who is undertaking…the role of a nurse or midwife unit manager or equivalent”.

150 DCB3744.

151 DCB3810.

152 DCB4100.

153 DCB243.

154 (1997) 79 FCR 43.

155 DCB4405.

156 DCB4436.

157 DCB152.

158 DCB4457.

159 DCB479.

160 DCB663.

161 DCB829.

162 DCB8321.

163 DCB827.

164 DCB4440.

165 Ibid at Clause 2.1.

166 DCB5031.

167 DCB5182.

168 DCB5464.

169 VHIA Closing submissions dated 26 November 2020 at [62] and references therein.

170 Final Submissions of the HSU dated 26 November 2020 at [46].

171 DCB479.

172 Rebis reply witness statement 19 October 2020 at paragraphs 5-7, DCB7592–7593; Transcript 6 November 2020 at PN880-PN883; Darmanin reply witness statement 19 October 2020 at paragraph 7, DCB7603; Transcript 6 November 2020 at PN944-948.

173 [2017] FWCFB 5826.

174 Ibid at [26].

175 [2017] FWCFB 5826 at [27], see also Aerocare Flight Support Pty Ltd t/as Aerocare Flight Support v Transport Workers’ Union of Australia [2018] FCAFC 74 at [12] in which the Full Court describes the guidance summarised by the Full Bench at [27] as persuasive.