[2017] FWC 1004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Nursing and Midwifery Federation
v
Anglicare SA Limited T/A AnglicareSA
(C2016/4671)

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 17 FEBRUARY 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – enrolled nurses and the administration of medicine – interpretation of Agreement – training and skills update required by state and federal legislation – employer responsible for the provision of such training and skills updates.

Background

[1] This dispute concerns a number of enrolled nurses employed by Anglicare SA Limited T/A AnglicareSA (AnglicareSA) at their aged care site who are required to administer medicines.

[2] The enrolled nurses are covered by the Anglicare SA/ANMF Nursing Employees Aged Care Agreement No.5 of 2015 (the Agreement) which was approved by the Fair Work Commission (the Commission) on 1 June 2015 and has operated from 8 June 2015. 1

[3] A Dispute Resolution and Grievance Procedure concerning the operation of the Agreement and the NES is provided at clause 3.3.2 of the Agreement. Clause 3.3.2.5 empowers the Commission to arbitrate unresolved disputes. There is no dispute as to jurisdiction.

[4] In 2016, AnglicareSA became aware that a number of its enrolled nurses who were not entitled to administer medicines by virtue of their experience or previous training, had not completed the required medication administration courses such as to permit them to administer medicines.

[5] AnglicareSA required the enrolled nurses who had not completed these courses, to undertake the training in their own time and at their own cost. AnglicareSA contended that they were unable to direct the employees to perform work until the training had been completed. Some of the nurses took annual leave to attend the training, others took unpaid leave.

[6] The ANMF contend that AnglicareSA was not entitled to ‘stand down’ the nurses and that the nurses are entitled to be repaid the cost of the training, and payment at ordinary time rates for the period of their attendance at the training, or for those who took annual leave, the leave records to be adjusted on the basis that they worked.

[7] Mr McMahon appeared on behalf of the ANMF and Mr Short was granted permission to appear for AnglicareSA pursuant to s.596(2)(a) of the Act.

The Agreement

[8] The provisions of the Agreement that relate to the dispute are as follows:

“PART 14 STAFF DEVELOPMENT

14.1 AnglicareSA recognises that training and education is essential for the maintenance and development of nursing practice in the care of the elderly. The objectives of staff development are to enhance the skills of the nurse so they may perform at optimum levels and meet best practice objectives. AnglicareSA will continue to provide and support training/education opportunities to ensure nurses are able to deliver appropriate resident care and to perform other related duties in accordance with relevant standards.

14.2 The responsibility for staff development is shared between nurses and AnglicareSA. Nurses are expected to participate in professional skill development to ensure that they perform at a standard consistent with nursing competencies relevant to their classification and registration.

14.3 On the basis of assessed needs, a range of programs/topics relevant to resident lifestyle and Nursing Care delivery will be provided by AnglicareSA and nurses are encouraged to attend.

14.4 The provision of mandatory training and skills updates as required by state and federal legislation is the responsibility of AnglicareSA. Attendance at mandatory training and skills update sessions provided by AngficareSA for a minimum of eight (8) hours per year regardless of employment status is the responsibility of the nurse. Staff who fail or refuse to attend, mandatory training programs, despite genuine attempts on the part of the Employer to make these available, will be subject to the Code of Conduct process.

14.5 Time spent in mandatory training will be paid at the appropriate rate as per the applicable shift rate for those on duty and at the Ordinary Rate of Pay for the spent time in attendance at the training or meeting for those attending In their own time.

14.6 Further staff development relevant to the Employee's position can be achieved through a formal course of study at a recognised institution, or developmental activities such as management and executive programs, conferences and seminars etc. Individual nurses are expected to show initiative in seeking these developmental opportunities.

14.7 Full time RNs and ENs will be able to seek approval for up to three (3) days paid leave to complete Education/Development/Registration requirements relevant to the nature of their role and activities within AnglicareSA, provided that this leave includes such AnglicareSA provided mandatory training.

14.8 Part time RNs and ENs working an average of greater than twenty (20) hours per week will be able to seek approval of two (2) days paid Professional Education leave per annum to complete Education/Development/Registration requirements relevant to the nature of their role and activities within AnglicareSA on the same terms as full time Employees pursuant to clause 14.7.

14.9 Professional Education leave is non-cumulative.

14.10 Managers may approve leave and expenses or leave without pay, to attend organised seminars, courses or conferences.

14.11 AnglicareSA's Training/educational goals for nursing will be established and reviewed in consultation with nurses. Individual training I educational goals and needs will be established and reviewed as part of AnglicareSA's performance and competency appraisal system.”

[9] In clause 14.1, AnglicareSA provides a general commitment to training and education essential for the maintenance and development of nursing practice, and that they will provide support and training/education. Clause 14.2 provides that staff development is a shared responsibility between nurses and AnglicareSA.

[10] Clause 14.4 concerns mandatory training and skills updates as required by state and federal legislation and provides that the provision of such training is the responsibility of AnglicareSA. Nurses who fail to attend required training are subject to disciplinary processes.

[11] Clause 14.5 provides that time spent in mandatory training will be paid at ordinary rates.

Evidence

[12] The ANMF provided witness statements, a number of exhibits and led evidence from Ms Patricia Currie who is employed by the ANMF South Australian branch as a Professional Officer – Aged Care.

[13] Ms Currie’s relevant evidence is summarised as follows;

Prior to 2008, enrolled nurses had to complete either a Diploma of Nursing or an Advanced Diploma in Nursing. The course could take between 18-24 months to complete. Enrolled nurses must undertake a minimum of 400 hours of clinical placement, and also apply to the Nursing and Midwifery Board of Australia to practise. Enrolled nurses work under the direction and supervision of registered nurses and their duties can include providing physical and emotional care to residents.

All enrolled nurses, including those who completed their training prior to 2008, are able to administer medicines if they have completed relevant medication administration training at some stage in their career. It is accepted that this training may have occurred prior to the introduction of the NMBA National Registration Scheme introduced in 2010.

Enrolled nurses who did not administer medicines prior to the transition to the national scheme in 2010, and/or had not undertaken any relevant medicine administration training, are not permitted to administer medicines under the National Law and are therefore required to have the approved notation ‘Does not hold Board approved qualification in administration of medicines’ recorded against their Australian Health Practitioner Regulation Agency (AHPRA) registration. 2

Enrolled nurses who have completed a Diploma in Nursing since 2008, will have undertaken the NMBA approved units of study and are therefore qualified to administer medicines.

[14] AnglicareSA provided witness statements and led evidence from Ms Lesley Jeffers who is employed by AnglicareSA in the position of Director Service Improvement, Residential Aged Care.

[15] Ms Jeffers’ relevant evidence is summarised as follows;

In June 2016 she became aware that a number of enrolled nurses employed by AnglicareSA and whose duties included the administration of medicine may not have met the AHPRA requirements to do so.

She was involved in the investigation of this matter.

She was advised by AHPRA that 22 of the enrolled nurses did hold Board-approved qualifications in administration of medicines.

In order to address the gap, Ms Jeffers requested a site manager to liaise with TAFE SA to expedite the availability of the relevant courses which cost $100 and is conducted over a period of 10 hours.

Part of AnglicareSA’s client nursing care needs is to have necessary medication administered to them. Most clients in the residential aged care division of AnglicareSA require medication every day. This task is performed by enrolled nurses.

Whilst not specifically referenced in the enrolled nurse job description, the administration of medication is an inherent requirement of an enrolled nurse’s role at AnglicareSA.

In order to practice, an enrolled nurse is required to register with AHPRA in compliance with requirements set by the Nursing and Midwifery Board. The registration process, required each year, requires an enrolled nurse to provide information as to whether they have completed the education necessary to obtain an endorsement for the administration of medicine. The courses an enrolled nurse is required to complete in order to obtain such an endorsement is “Analyse Health Information HLTAP501C” and “Administer and Monitor Medications in the Work Environment HLTEN507C”.

Submissions

[16] The parties’ submissions on the interpretation of the relevant clauses of the current Agreement are summarised below.

[17] The ANMF contends that:

Clause 14.4 of the Agreement requires AnglicareSA to be responsible for “the provision of mandatory training and skills updates”. This requires AnglicareSA to accept the costs associated with mandatory training and skills updates such as attaining additional qualifications required by changes to the National Law.

AnglicareSA is in breach of clause 14.4 of the Agreement by refusing to pay the costs associated with attaining the skills update required by state and federal legislation.

Clause 14.5 requires AnglicareSA to pay employees at the appropriate rate for periods spent in mandatory training considered by clause 14.4 of the Agreement and has therefore breached clause 14.5 of the Agreement.

AnglicareSA cannot arbitrarily direct an employee to not attend to duties without remuneration and such direction must be classified as either a stand down for the purposes of s.524 of the Act, which AnglicareSA has not sought to rely upon, or in the alternative as a suspension from duty.

In the circumstances of this matter, a right to suspend an employee without pay does not arise under the Act, the terms of the Nurses Award 2010 [MA000033] or the Agreement. Furthermore, in the absence of such a provision, there is no general common law right to suspend an employee without pay due to their misconduct, such as pending an investigation, even where their misconduct would justify instant dismissal.

The enrolled nurses were suspended and financially prejudice as a result of AnglicareSA’s instruction to complete the relevant course.

[18] AnglicareSA contends that:

The administration of medication is an inherent requirement of an enrolled nurse’s job and education is required in order for an enrolled nurse to lawfully administer medication.

While the job description for an enrolled nurse does not expressly refer to the administration of medicine, it refers to the requirement to hold a Diploma of Nursing, have current registration with AHPRA and to provide holistic care. The provision of holistic care in the context of residential aged care requires an enrolled nurse to administer medication. Both the AnglicareSA Medication Manual and Duty Statements support this conclusion.

They did not pay for employees to attend the course and obtain the qualification on the basis that the qualification is necessary for the employee to perform their job, as opposed to a mandatory training update.

They agree with the applicant in the sense that they are not seeking to rely on s.524 of the Act and that they do not have a right to suspend employees from duty without pay under the Agreement or any term implied by custom or usage under employees’ employment contracts.

They have a right to refuse to accept performance of duties if the duty is an inherent requirement of the employees’ role which is analogous with the case of Coal & Allied Mining Services Pty Ltd v MacPherson. 3

The payment of wages is conditional upon the readiness of the employee to perform the full range of work allocated by the employer. The 22 enrolled nurses were not ready to perform an inherent requirement of their role as they had not completed the necessary education.

The education required does not amount to “mandatory training” or “skills update” as set out in clause 14.4 of the Agreement. The education is a qualification that must be completed in order for the employees to perform their duties.

The term “mandatory training” and “skills update” are not defined in the Agreement, however, “mandatory training” is used in the classifications in the Agreement as employees must have completed any “organisational mandatory training” in order to progress to the next classification, see clauses 5.1.1(c) and 5.1.2(a)(iii). Therefore, it is suggested that the term “mandatory training” refers to training mandated by AnglicareSA as opposed to an external body such as ANMB.

To the best of its knowledge, it has been the custom and practice of clause 14 that the training referred to is delivered by AnglicareSA itself.

The difference between a “qualification” and “mandatory training” or “skills update” is that the latter two assume completion of a qualification which allows an employee to claim that they are qualified to perform a particular task. The qualification is a “licence to play”. The employee may then undertake mandatory training and skills update as referred to in the Agreement at a later stage to keep their qualification current.

The Agreement cannot be given the construction proposed by the applicant as this would require AnglicareSA to pay for a whole Diploma of Nursing if an employee was hired without having completed their Diploma.

Principles of Interpretation

[19] The principles to be applied to the interpretation of enterprise agreements were detailed by the Full Bench of the Commission in The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd. 4 I adopt the principles as set out and applied by the Full Bench in Golden Cockerel and the authorities it refers to within.

Discussion

[20] The issue to be determined in this case is if the education courses that were required to be completed fall within the term “mandatory training and skills updates as required by state and federal legislation”. If that is the case, the ANMF position will succeed, if not it will fail.

[21] In 2008 the Council of Australian Governments (COAG) decided to establish a single National Registration and Accreditation Scheme for registered health practitioners including nurses. South Australian nurses became nationally regulated by a National Board. 5 AHPRA is the Australian Health Practitioner Regulation Agency. AHPRA is the agency that supports the National Boards to implement the National Scheme. The National Boards set the registration standards that health practitioners must meet in order to register. Once registered, health practitioners must continue to meet the standards and renew their registration yearly with the National Board. This information is uncontroversial and I take judicial notice of it.

[22] On a date prior to June 2016, it appears that AHPRA determined that nurses who administer medications who had not previously completed training equivalent to that contained in the subjects “Analyse Health Information HLTAP501C” and “Administer and Monitor Medications in the Work Environment HLTEN507C” were not eligible to administer medications and should have their registration endorsed accordingly.

[23] AnglicareSA required its entire nursing staff to administer medication, indeed Ms Jeffers states it was an inherent requirement of the role. I have no doubt that AnglicareSA considered the completion of the training to be mandatory, as evidenced by their refusal to accept work in the absence of each nurse completing the training.

[24] AHPRA appears to me to be a regulatory body in respect of the establishment and maintenance of the standards that nurses must meet. During 2016, AHPRA introduced a new obligation for nurses, the requirement to have completed particular training to administer medications. The possession of these skills was mandated by AnglicareSA.

Conclusion

[25] I find that that the new training obligation imposed by AHPRA is encompassed in the term “training and skills updates as required by state and federal legislation” in clause 14.4 of the Agreement.

[26] As a result of clause 14.5 of the Agreement, AnglicareSA is responsible for the provision of such training and the time spent completing the same is to be regarded as time worked and paid at ordinary time rates and the AnglicareSA nurses who complete such training must be paid or have their annual leave records adjusted accordingly and I so determine.

[27] The payments and/or annual leave record adjustments shall be made by AnglicareSA within 14 days of this decision.

COMMISSIONER

Appearances:

R McMahon on behalf of the Applicant.

A Short of counsel, with permission, on behalf of the Respondent.

Hearing details:

2016.

Adelaide:

September 30.

1 [2015] FWCA 3686

2 Exhibit A1, [8]

3 (2010) 185 FCR 383

4 [2014] FWCFB 7447

5 (Accessed 17 February 2017)

Printed by authority of the Commonwealth Government Printer

Australian Nursing and Midwifery Federation v Anglicare SA Limited T/A AnglicareSA

[2017] FWC 1004

17 FEBRUARY 2017

DECISION