Australian Nursing and Midwifery Federation v Australian Capital Territory (Canberra Health Services)
[2022] FWC 2411
•12 SEPTEMBER 2022
| [2022] FWC 2411 |
| FAIR WORK COMMISSION |
| OPINION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Nursing and Midwifery Federation
v
Australian Capital Territory (Canberra Health Services)
(C2021/7384)
| DEPUTY PRESIDENT DEAN | CANBERRA, 12 SEPTEMBER 2022 |
Application to deal with a dispute.
The Australian Nursing and Midwifery Federation (ANMF) has made an application for the Commission to deal with a dispute with the Australian Capital Territory (Canberra Health Services) (CHS) in accordance with the dispute settlement procedure contained within the ACT Public Service Nursing and Midwifery Enterprise Agreement 2017-2019 (the Agreement).
The dispute relates to the proper interpretation of Clause 39 of the Agreement.
Question to be determined
To resolve the dispute, the parties seek that the Commission express a written opinion on the following question in relation to the interpretation of the Agreement:
Where an eligible employee (as defined under the Agreement) holds a Bachelor of Nursing and a Bachelor of Midwifery (and no other qualifications) would they be entitled to a qualification allowance under clause 39 of the Agreement?
Clause 39
Clause 39 is titled “Qualification Allowance for Post-Graduate Education” and is in the following terms:
39. QUALIFICATION ALLOWANCE FOR POST-GRADUATE EDUCATION
39.1 When an application is made by an eligible employee the Qualification Allowance will be paid to those Enrolled Nurses who hold further qualifications and those Registered Nurses/Registered Midwives who hold post-graduate qualifications.
39.2 It is agreed that, for the duration of this Agreement, qualification allowance will be paid to all eligible employees at the full rate.
39.3 For the purposes of this clause, a qualification allowance is only paid when the qualification is additional to the mandatory qualification required for registration either as a nurse or midwife, or for authorisation as a Nurse Practitioner.
39.4 To receive the qualification allowance the employee must be able to:
39.4.1 provide documentary evidence to the head of service that they hold that qualification; and
39.4.2provide further detailed evidence as the head of service may require establishing the direct relevance of a particular course of study to the employee’s position and duties.
39.5 For the head of service to recognise a qualification for the purposes of this clause, it must be of a kind that, in the opinion of the head of service is directly relevant to the performance of the employee’s current position and duties.
39.6 In cases of doubt, (i.e. inconsistency in the way Universities and other institutions describe the qualification), the Course Descriptions included in the Recognised Qualification Table below will be applied to determine the level of an employee’s qualification.
39.7 Non-University Qualification(s) obtained from non-university training or education facilities will be referred to the Qualifications Committee.
39.8 Hospital-based midwifery certificates will be recognised at the postgraduate diploma level.
Review of a Decision
39.9 Where an employee is dissatisfied with a decision of the head of service to recognise the relevance of a qualification or to cease payment of the qualification allowance, the employee may lodge a request for review with the Qualifications Committee.
39.10 The convener of the Qualifications Committee will be the Chief Nurse or Delegate and this Committee will meet on a quarterly basis. When an outcome is determined, the applicant will be advised of the Committee’s decision.
39.11 If a review is found in favour of the applicant, the applicant will receive a back payment of the Qualification Allowance to the date of application.
Payment of the Qualification Allowance
39.12Allowances are not cumulative. An employee who holds more than one relevant qualification is only entitled to one allowance and will be paid at the rate applicable to the highest relevant qualification the employee possesses.
39.13The Qualification Allowance will be paid on a fortnightly basis according to the following table and as set out in Schedule 10 of this Agreement:
Table 1: Recognised Qualifications
Qualification Course Description Rate of Allowance Enrolled Nurse A course of study specified by the institution awarding the qualification to be a course of study of no less than six months duration, or no less than 120 hours. 3.5% of the salary paid at the minimum point of the salary scale of an Enrolled Nurse (EN) Level 1. Registered Nurse/ Registered Midwife Honours Degree 3.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1. Conversion Degree A conversion degree of not less than 12 months full-time study, or part-time equivalent. 3.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1. Postgraduate Certificate. A course of study of no less than two subject units over no less than one full-time semester (or equivalent). 3.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1. Postgraduate Diploma A course of study of no less than three subject units (or equivalent) over no less than two full-time semesters (or equivalent).
Note: midwives please refer to subclause 39.8.
4.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1. Second Degree A course of study leading to the award of a second degree. 4.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1. Masters Degree A course of study by research or course work or both of no less than six subject units (or equivalent) over no less than three full-time semesters (or equivalent). 5.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1. Doctoral Degree A program of research and course work of no less than three years’ duration (or equivalent). 5.5% of the salary paid at the minimum point of the salary scale of a RN/RM Level 1.
This allowance shall not be included in salary for the purposes of calculating overtime and shift penalty payments, or any other entitlement of the employee.
Agreed Facts and Submissions
The parties filed a statement of agreed facts which relevantly included the following:
“4.On 15 December 2015, ANMF member, Ms Carla Fielder, graduated with a Bachelor of Nursing and a Bachelor of Midwifery from Latrobe University. These are undergraduate qualifications obtained as part of one combined course of undergraduate study and not qualifications obtained through a further course of post-graduate study.
5.Ms Fielder studied these courses concurrently but the awards (to the degrees of Bachelor of Nursing and Bachelor of Midwifery respectively) are conferred separately.
6.On 15 January 2016, Ms Carla Fielder was registered as a Midwife and as a Nurse with Australian Health Practitioner Regulation Agency (APHRA).
7.In July 2020, Ms Carla Fielder was engaged by CHS on a temporary employment contract as a Midwife (from 9 July 2020 to 7 July 2021).
8.Ms Fielder was engaged as a Registered Midwife (level 1) on a part-time basis for 32 hours per week.
9.On 15 June 2020, Ms Fielder made an application, pursuant to clause 39 of the Agreement, to have her Bachelor of Nursing recognised for the purpose of payment of a Qualification Allowance.
10.On 26 March 2021, Ms Fielder received correspondence stating that her application had been reviewed and declined as CHS considered the application did not meet the requirements set out under the Agreement.
11.Ms Fielder resigned her position effective from 6 June 2021.”
ANMF
In reliance on the well-established principles of constructing or interpreting an enterprise agreement contained with AMWU v Berri Pty Ltd[1] (Berri), the ANMF made the following submissions:
a)construction of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words, and the resolution of a construction dispute will turn on the language of the Agreement having regard to its context and purpose.
b)The ANMF acknowledged that clause 39 references postgraduate education in the title of the clause and in clause 39.1 which confirms the allowance will be paid to “those Registered Nurses/Registered Midwives who hold postgraduate qualifications”.
c)The ANMF also acknowledged that, on its face, and given the ordinary meaning of “post-graduate”, it would appear that a Registered Nurse or Registered Midwife who holds two individual but separate Bachelor level degrees would not be entitled to a qualification allowance.
d)However, it argued, the proper construction of the clause will turn on the language of the Agreement having regard to its context and purpose, which can appear from the text of the Agreement viewed as a whole. Further, when construing an Agreement, it is first necessary to determine whether the Agreement has a plain meaning or is ambiguous or susceptible to more than one meaning.
e)The ANMF contended that in this case, the express terms of the clause include several non-postgraduate qualifications which are recognised for the purposes of an entitlement to a qualification allowance, and that given the express inclusion of several non-postgraduate qualifications, it follows that the term “post-graduate” in both the title and the body of the clause is either susceptible to more than one meaning or is ambiguous.
f)Specifically, the ANMF relied on the inclusion of non-postgraduate qualifications expressed in the “Recognised Qualifications” table at subclause 39.13, including non-postgraduate qualifications such as “honours degree”, “conversion degree” and a “second-degree”.
g)It submitted that the inclusion of these well-recognised qualifications are ordinarily understood to be undergraduate and not postgraduate qualifications. Accordingly, it argued, the clause gives rise to a preferred interpretation that the allowance is available for those Registered Nurses and Registered Midwives who hold relevant qualifications which are not “post-graduate”. Further, the clause is therefore susceptible to more than one meaning and so a strict construction of the term “post-graduate” is not preferred for the purposes of interpreting the clause.
h)The ANMF went on to submit that their interpretation is necessary to properly interpret the clause, in particular as to what a “second-degree” is.
i)The ANMF also submitted that CHS has previously approved the entitlement of the allowance to several employees on the basis that they held a second undergraduate degree.
CHS
CHS submitted that on application, an eligible employee who is a Registered Nurse and/or Registered Midwife is entitled to be paid the allowance under clause 39 if the following four requirements are met:
a.the eligible employee holds postgraduate qualifications (subclause 39.1);
b.the qualification is additional to the mandatory qualification required for registration either as a nurse or midwife (subclause 39.3);
c.the qualification must be of a kind that is directly relevant to the performance of the employee’s current position and duties (subclause 39.5); and
d.the eligible employee must provide documentary evidence they hold the qualification and evidence (as the head of service may require) to establish the direct relevance of a particular course of study to the employee’s position and duties (subclause 39.4).
CHS contended that Ms Fielder did not meet the first and second requirements necessary for her to be paid the allowance.
In terms of the first requirement, that being the holding of a post-graduate qualification (subclause 39.1), CHS noted that while the words “post-graduate qualification” are not defined in the Agreement, in accordance with the first, seventh and ninth principles in Berri, the construction of clause 39 must begin with a consideration of the ordinary meaning of “post-graduate qualification”. It submitted that the ordinary meaning of post-graduate qualification relates to study upon completion of an undergraduate degree and highlighted that the Macquarie Dictionary defined postgraduate is someone studying at a university for a higher degree, or relating to courses of study offered for a higher degree. Adopting the ordinary meaning of postgraduate, CHS submitted that an employee who held a Bachelor of Nursing/Bachelor of Midwifery and no other qualifications would not be entitled to the allowance as it is not a course of study at a university for higher degree.
CHS argued the language of subclause 39.1 which establishes the entitlement to the allowance is clear and unambiguous. The entitlement is only enlivened where the eligible employee holds a post graduate qualification. Hence, in accordance with principle nine in Berri, as subclause 39.1 has a plain meaning, evidence of surrounding circumstances should not be admitted to contradict the plain language of the Agreement.
Related to this, CHS went on to submit that subclause 39.6 must be read consistently with subclause 39.1, and as such reference to the course description in the Recognised Qualification table (the Table) is only relevant in cases of doubt as to the nature of the post-graduate qualification held. In the case of Ms Fielder, there is no doubt as to the nature of her qualifications, which are combined undergraduate qualifications and not qualifications obtained from a further course of postgraduate study. As such the course descriptions in the Table are not relevant to an assessment of whether the allowance is applicable in this case, as neither Bachelor’s degree held by Ms Fielder met the initial threshold established in subclause 39.1 of being a post-graduate qualification.
Further, CHS submitted that in adopting the first principle in Berri, the language of clause 39 having regard to its context and purpose, and the placement of subclause 39.13 and the Table, demonstrates that the purpose of the descriptions used in the Table are to determine the rate the allowance would be paid, and not as a means to determine any entitlement to the allowance. CHS contended that this view is supported by the structure, content, and language of clause 39, whereby subclauses 39.1 to 39.8 deal in general with the requirements for entitlement to the allowance. Then, subclauses 39.9 to 39.11 deal with rights of review and are located under the heading “Review of the Decision”. Next, subclauses 39.12 to 39.13 (including the Table) deal with the payment of the allowance and are found under the heading “Payment of the Qualification Allowance”. Finally, subclauses 39.14 to 39.15 relate to the payment of the allowance where the employee moves to another field and are relevantly found under the heading “Payment of the allowance when moving to another field when an employee’s request or at the request of the head of service”.
In relation to the second requirement, that being that the qualification is additional to the mandatory qualification required for registration either as a nurse or midwife, CHS relied on subclause 39.3 of the Agreement which provides that the allowance is only paid when the qualification is additional to the mandatory qualification required for registration either as a nurse or midwife. CHS submitted that Ms Fielder’s qualification of Bachelor of Nursing/Bachelor of Midwifery meets the requirements with APHRA for registration as a nurse or midwife, and she has been registered as a nurse and midwife since January 2016. Her qualifications do not meet threshold in subclause 39.3 of being additional to the mandatory qualifications required to obtain registration either as a nurse or midwife.
In response to the ANMF’s argument regarding the inclusion in the Table of “second degree”, CHS contended that a postgraduate second degree in the ordinary sense may be from a course of study (leading to a second degree) undertaken by an eligible employee following the completion of the mandatory qualification required for registration either as a nurse or midwife. For example, this may arise where an eligible employee undertakes a course of study leading to the award of the second degree in Education or Management which may be directly relevant to the performance of the employee’s current position and duties (per subclause 39.5) as a Nurse Educator or in a clinical leadership role that would support their career and development of expertise in their area of employment.
ANMF’s reply
In reply to the submissions made by CHS, the ANMF contended that CHS’s narrow construction of the term “post-graduate” and it submissions leading from this construction were erroneous because CHS appeared to rely on the placement of subclauses and the content and language only in the context of the placement of the subclauses. In this regard the ANMF contended that the qualifications outlined in the Table provide the relevant industrial context and are included because they are relevant and will give rise to the payment of the allowance where a nurse or midwife holds one of the express qualifications.
The ANMF also contended that CHS’ construction of the structure, content and language of the Agreement was overly technical, by reference to principle 6 of Berri which cautions against an overly technical approach to interpretation.
The ANMF disputed the suggestion by CHS that completing and obtaining both a Bachelor of Nursing and a Bachelor of Midwifery does not advance the knowledge or expertise in relation to the area of employment of a nurse or midwife.
Opinion of the Commission
In my opinion, Ms Fielder has not met the requirements necessary to be paid the allowance.
I agree with CHS that four requirements (as set out in paragraph 7 above) need to be satisfied before an employee is entitled to the allowance.
The clause is in my view clearly intends to provide a payment for a qualification in addition to that which is required for an eligible employee to perform their role. In the case of Ms Fielder, this is a specified post graduate qualification in addition to her undergraduate qualifications of Bachelor of Nursing/Bachelor of Midwifery.
There does not seem to be any dispute between the parties that a Bachelor of Nursing is the mandatory qualification for registration as a nurse, and a Bachelor of Midwifery is the mandatory qualification for registration as a midwife. It is not in dispute that these are the only qualifications held by Ms Fielder.
For an enrolled nurse, who is not likely to hold an undergraduate degree, a “further qualification” is needed in order to be eligible for the allowance, as set out in clause 39.1.
In this context, the phrase “Post-graduate” is used to describe a specified qualification in addition to a mandatory qualification, where a mandatory qualification one that is required for employment in the role.
It is also in my view clear from clause 39.6 that the Table is included both for the purpose of dealing with any inconsistency in the way a university describes a qualification and for the purpose of prescribing the amount of the allowance, but not for the purpose of determining eligibility for the allowance.
Further, I accept that the inclusion of “second degree” in the Table, when considered in light of the examples used by CHS (see paragraph 14) provide a sensible interpretation that is not ambiguous in this context.
The structure of clause 39, its headings and the location of the subclauses under each heading also lends support to this overall interpretation of clause 39.
Finally, I do not consider the clause ambiguous or susceptible to more than one meaning. The words are sufficiently “plain” that surrounding circumstances are not to be admitted. Nor do I consider this interpretation to constitute an overly technical approach.
I am accordingly of the opinion that Ms Fielder has not met the requirements necessary to entitle her to payment of the allowance. The dispute is so determined.
DEPUTY PRESIDENT
[1] [2017] FWCFB 3005.
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