Australian Nursing and Midwifery Federation v Barwon Health
[2024] FedCFamC2G 376
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Nursing and Midwifery Federation v Barwon Health [2024] FedCFamC2G 376
File number(s): MLG 2759 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 30 April 2024 Catchwords: INDUSTRIAL LAW – Interpretation of an enterprise agreement – whether an employee was incorrectly paid – where clause in enterprise agreement makes provision for payment – where respondent contends reference that nothing in that clause will affect current arrangements in place at commencement meant no liability – interpretation of applicants preferred – declarations to be made. Legislation: Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth), ss. 3, 50, 51, 52, 53, 54, 58, 171, 186, 545
Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, cl 6.1, 79.4, 79.5, 79.8
Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016, cl 40.2
Cases cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 157 FCR 329
Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 796 147 FCR 158
James Cook University v Ridd [2020] FCAFC 123
Jermiin v Commonwealth Scientific And Industrial Research Organisation [2021] FCCA 549
Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595
McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105
Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95
National Tertiary Education Union v La Trobe University [2015] FCAFC 142
Re Armacell Australia Pty Ltd [2010] FWAFB 9985
Regional Express Holdings Ltd v Clarke [2007] FCA 957
Toyota Motor Corporation Australia Limited v Marmara (2014) 222 FCR 152
Visscher v Giudice (2009) 239 CLR 361
Wardman v Macquarie Bank Limited (2023) 322 IR 278
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 15 April 2024 Place: Melbourne Counsel for the Applicants: Mr J. McKenna Solicitor for the Applicants: Gordon Legal Counsel for the Respondent: Mr C. McDermott Solicitor for the Respondent: DLA Piper Australia ORDERS
MLG 2759 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THE AUSTRALIAN NURSING AND MIDWIFERY FEDERATION
First Applicant
LEAH SAMPSON
Second Applicant
AND: BARWON HEALTH
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.By 7 May 2024, the applicants provide to the respondent and the Court, a minute of proposed orders setting out the form of the declaratory relief it seeks consistent with these reasons for judgment.
2.By 14 May 2024, the respondent notify the Court whether it agrees with the applicants’ proposed orders, or failing agreement, provide to the applicant and the Court its proposed orders consistent with these reasons for judgment.
3.The Court will finalise the orders on the papers or, if either party requests, at a case management hearing to be convened on a date to be fixed for that purpose.
4.The matter will otherwise be listed for directions on a date to be fixed to make directions for the determination of the question of penalty.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In these proceeding the applicants, the Australian Nursing and Midwifery Federation (‘the first applicant’), an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and one of its members Leah Sampson (‘the second applicant’) seek relief against Barwon Health (‘the respondent’) in respect of alleged contraventions of s.50 of the Fair Work Act 2009 (Cth) (‘the FW Act’).
In essence, it is alleged that the second applicant was incorrectly paid by the respondent under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (‘the 2016 Agreement’). More specifically, it is alleged that the respondent failed to pay her for performance of clinical placements between December 2016 and June 2017. The applicants seek that the Court makes a declaration, a compensation order, as well as penalties and interest against the respondent. The respondent disputes the allegations, opposes the relief sought and contends that the second applicant was correctly paid under the 2016 Agreement.
The proceedings were commenced by application and statement of claim filed 16 December 2022. The respondent filed a defence on 14 February 2023. The matter was ultimately listed, by agreement of the parties to determine the proper construction of a particular clause of the 2016 Agreement. By the time the matter came before the Court for that purpose on 15 April 2024, the parties had filed a statement of agreed facts, submissions, and submissions in reply. At that hearing, the applicants were represented by Mr McKenna of Counsel and the respondent by Mr McDermott of Counsel.
BACKGROUND AND AGREED FACTS
The parties filed a Statement of Agreed Facts on 2 June 2023 (‘S.O.A.F’) which is annexed to these reasons and the following facts are not in dispute.
The second applicant was employed by the respondent between February 2016 and June 2017 to work in the Women and Children’s Ward of one of its hospitals as a Registered Nurse/Postgraduate Student Midwife. In that role, the second applicant was undertaking post-registration study in midwifery and performed clinical placements.
The second applicant’s employment was, as set out in her letter of appointment, on a fixed term part time basis and at the time she commenced employment covered by the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (‘the 2012 Agreement’).
Under the 2012 Agreement, the second applicant was not entitled to be paid by the respondent for clinical placements because clause 40.2(b) of the 2012 Agreement which inter alia provided:
A midwifery student shall be paid for that period of duty, other than periods of clinical placement, at her/his appropriate rate of pay according to her/his grading, sub-grading and Years of Experience as a Registered Nurse…. (emphasis added)
However, on 23 December 2016, the 2016 Agreement commenced operation and from that date applied to and covered the second applicant’s employment with the respondent. The 2016 Agreement differed from the 2012 Agreement with respect to the performance of clinical placements by post registration students. The 2016 Agreement did not contain a clause like that in clause 40.2(b) of the 2012 Agreement. Clause 79.4 of the 2016 Agreement contained no exclusion from payment for placements.
It is also not in dispute that following the commencement of the 2016 Agreement until the end of her employment, the second applicant performed clinical placement hours which were “clinical placements” by “post registration students” for the purposes of that agreement.
In summary, the applicants contend that the second applicant should have been paid for those clinical placements by the respondent as she was entitled to be under the 2016 Agreement. The respondent contends it did not do so as there was no obligation to make payment for clinical placement hours due to inter alia the contract of employment between it and the second applicant and that the position was relevantly preserved under (in particular clause 79.8 of) the 2016 Agreement. [1]
[1] The 2012 Agreement, 2016 Agreement and the letter of appointment were all annexed to the S.O.A.F.
THE FW ACT
Chapter 2 of the FW Act deals with terms and conditions of employment, including enterprise agreements. It is appropriate to refer to the objects of the FW Act and the objects of Part 2-4 titled “Enterprise Agreements”. The objects of the FW Act provide inter alia that:
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a)providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b)ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c)ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and …
The objects to Part 2-4 are contained in s.171 of the FW Act:
171 Objects of this Part
The objects of this Part are:
(a)to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b)…
A person must not contravene a term of an enterprise agreement (s.50).
An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person (s.51(1)).
Conversely, an enterprise agreement does not give a person an entitlement unless the agreement applies to the person (s.51(2)).
Pursuant to s.52(1), an enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c)no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
Section 52(2) provides:
A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.
Section 53 deals with the question of coverage. An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer (s 53(1)).
Section 54 deals with when an enterprise agreement is in operation. Pursuant to s 54(1), an enterprise agreement approved by the Fair Work Commission operates from:
(a)7 days after the agreement is approved; or
(b)if a later day is specified in the agreement—that later day.
Section 54(3) provides that an enterprise agreement that has ceased to operate can never operate again.
Section 58(1) of the FW Act provides that, “Only one enterprise agreement can apply to an employee at a particular time.”
INTERPRETATION OF AN ENTERPRISE AGREEMENT
The principles for the interpretation of enterprise agreements are now well established. A convenient summary (which the parties did not dispute) is set out in the decision of the Full Court of the Federal Court in James Cook University v Ridd [2020] FCAFC 123 (‘JCU v Ridd’) at [65] as follows:
(i)The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii)Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv)Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi)A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
The instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University [2015] FCAFC 142 at [108]:
Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 24 of the Fair Work Act 2009 (Cth) (‘the FW Act’). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of cl 74.
And relevantly for present purposes said of such agreements at [115]:
Typically, they supersede a previous agreement which itself incorporated terms from previous agreements or other industrial instruments. It is commonplace for such agreements to incorporate terms settled and agreed upon at different times in the past and which are the handiwork of different draftspersons, with differing drafting styles. Perhaps because those involved attach greater importance to securing the continuation of matters previously agreed upon, it is often the case that little attention is given to the niceties of drafting discussed in texts such as Piesse, The Elements of Drafting. Different wording often reflects no more than a failure to appreciate the desirability of consistency in terminology when the same meaning is intended.
RELEVANT PROVISION OF THE 2016 AGREEMENT
The 2016 Agreement was included in the S.O.A.F. and included the following clause from which it is possible to identify the gravamen of the dispute between the parties.
79. Post-registration Students
79.1Post-registration student means an Employee who is:
(a) a Registered Nurse; and
(b) undertaking post-registration study.
79.2 Post-registration study means :
(a) study leading to registration as a midwife; or
(b) study for the purpose of obtaining a post registration qualification.
79.3Substantive Salary means at the Employee’s appropriate rate of pay according to the Employee’s classification and Years of Experience as a Registered Nurse as normally in place before proceeding to commence as a student.
79.4A post-registration student who is undertaking the post-registration study with the agreement of the Employer and as part of their employment will be paid for that period, including periods of clinical placement/supervised experience, at her/his Substantive Salary in accordance with the Employee’s employment arrangement.
79.5A post-registration student who is undertaking the post-registration study outside of any employment arrangement with their Employer, whose Employer has the clinical setting to provide their periods of supervised experience, will pay the Employee their substantive salary while undertaking supervised experience (excluding clinical placement).
79.6Nothing in subclauses 79.4 or 79.5 above affects an Employee’s grade or increment otherwise applicable for work performed during the period of study that is not a direct requirement of the post-registration study.
79.7The period for which a Registered Nurse/Midwife is paid will be counted in the Employee’s Years of Experience as a Registered Nurse/Midwife.
79.8Nothing in this clause will affect current arrangements in place with an Employee at the commencement of this Agreement.
As will become clear, the applicants maintain that the second applicant had a prima facie entitlement to be paid for clinical placement hours in accordance with clause 79.4 of the 2016 Agreement. Conversely, the respondent maintains that there was no obligation to pay the second applicant by virtue of a combination of her letter of appointment and clause 79.8 of the 2016 Agreement.
LETTER OF APPOINTMENT
The second applicant’s letter of appointment included the following provisions:
1.1 In this Contract, unless otherwise stated or the context otherwise indicates:
"Workplace Agreement" - means a collective agreement registered under the Workplace Relations Act 1996 (Cth) or the Fair Work Act 2009 (Cth).
1.2Any reference in the Contract to a Schedule refers to the Schedule then in force whether or not the Schedule has been physically attached to all or any counterparts of the Contract.
...
1.4 Any inconsistent provision/s of the relevant Award, Workplace Agreement or the Fair Work Act 2009 (Cth) will take precedence over this Contract.
…
4.1Subject to You at all times being ready, willing and able to perform, and performing the duties of the Position, You shall be entitled to the monetary remuneration, employment benefits and terms and conditions of employment specified in the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016.
SUBMISSIONS
Prior to turning to the Court’s consideration of the dispute over the interpretation of the 2016 Agreement, and to give greater clarity and context to the dispute, it is prudent to set out certain (detailed) extracts from the parties’ competing written submissions.
The applicant’s submissions
As a result of the orders made on 15 May 2023, the applicant filed their submissions on 18 March 2024. Those submissions included the following contentions:
12.The term “arrangements” is not defined. The use of this term in cl 79.8 of the 2016 is ambiguous. It is appropriate to have regard to the ordinary meaning of the word, read in context, to identify its proper meaning.
Ordinary meaning
13.The relevant ordinary meaning of “arrangement” is “the state of being arranged”.[2] The ordinary meaning of “arrange” includes “to come to an agreement or understanding regarding: to arrange a bargain”.[3] Whilst an arrangement may be legally enforceable by one party against the other, it need not be so.
[2] Macquarie online Dictionary.
[3] Macquarie online Dictionary.
14.As noted above, it is not in dispute that the relevant “arrangements” here involved Ms Sampson performing clinical placements at the Women and Children’s Wards as a “post-registration student”. Those arrangements were important where Ms Sampson performed clinical placements to complete her post-registration study in midwifery.[4] The arrangements for the performance of clinical placements were not addressed by the employment agreement between Ms Sampson and Barwon Health. Whilst the 2012 Agreement expressly anticipated the performance of clinical placements by midwifery students, it did not prescribe how this was to occur (save that clinical placements would be unpaid).[5]
[4] SOC at [4(a)] and Defence at [4].
[5] see 2012 Agreement at cl 40.2(b).
15.Accordingly, the “arrangements” identified by cl 79.8 were the arrangement pursuant to which Ms Sampson performed clinical placements at the Women and Children’s Wards. The effect of cl 79.8 is to confirm and ensure that the implementation of cl 79, including the new entitlement for post-registration students to be paid for clinical placements, would not affect those arrangements. That is, after the commencement of the 2016 Agreement, Barwon Health would not cease to facilitate Ms Sampson performing clinical placements, in the same custom and manner as in place before the commencement of that Agreement.
16.Properly understood, the “arrangements” preserved by cl 79.8 did not include that Ms Sampson was not paid or entitled to be paid by the Respondent for those clinical placements.[6]
[6] Cf Defence at [6(c)(ii)].
Context from the underpinning legislative regime
17.The 2016 Agreement was an enterprise agreement made by the Fair Work Commission pursuant to Part 2-4 of the Fair Work Act 2009 (FW Act). It provides minimum terms and conditions of employment for those employees to whom it applies.
18.Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. Section 50 is a civil remedy provision, such that this Court may make any order it considers appropriate if satisfied that Barwon Health contravened the 2016 Agreement.[7] It is trite to say that the parties cannot contract out of the provisions of the 2016 Agreement.
[7] Fair Work Act s.545(1).
19.The object of the FW Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians, including:
… by ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system.[8]
[8] Fair Work Act s.3(c).
20.Enterprise agreements enjoy a central role under the FW Act in providing minimum wages and conditions. The object of the FW Act makes clear that it is not open to parties to reach separate agreement to undermine those wages and conditions. It would be antithetical to the objects of the FW Act to allow parties to make an enterprise agreement in which operative terms are subordinate to separate agreements or contractual arrangements.[9]
[9] See, by way of analogy Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 796 147 FCR 158 and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 157 FCR 329, under the former legislative regime.
21.Additionally, in approving the 2016 Agreement, Commissioner Lee was satisfied that each of the requirements of ss 186, 187, 188 and 190 (as relevant) had been met.[10] That is, Commissioner Lee was satisfied of matters including that the 2016 Agreement had been genuinely agreed to by the employees covered by the agreement.[11] It is unclear how genuine agreement could have been given if “arrangements” for the purpose of cl 79.8 reflected the contracts of individual employees. Likewise, Commissioner Lee was satisfied that the agreement passed the better off overall test (BOOT). This required the identification of agreement terms which were more beneficial, and the terms which were less beneficial, and then an overall assessment as to whether employees would be better off under the 2016 agreement than under the relevant award.[12] The application of the BOOT would be impossible if “arrangements” for the purpose of cl 79.8 incorporated the status of contractual provisions between Barwon Health and individual employees which purported to deny a benefit, without set-off, otherwise available to an employee.
[10] [2016] FWCCA 9039 at [3].
[11] Fair Work Act s.186(2)(a) and s.188.
[12] Fair Work Act s.186(2)(d) and s.193 and Re Armacell Australia Pty Ltd [2010] FWAFB 9985, (2010) 202 IR 38 (Giudice J, Acton SDP, Lewin C, 24 December 2010) at [41].
22.The Respondent’s interpretation of cl 79.8 also raises difficult questions of application and compliance. For example, what would be the status of any “arrangements” that were in place at the commencement of the 2016 Agreement that provided a more favourable entitlement to payment for clinical placements than those in cl 79.4? Would a failure to afford an Employee those more beneficial contractual “arrangements” amount to a contravention of the 2016 Agreement and breach of s 50 of the FW Act?
23.Ultimately, cl 79.4 of the 2016 Agreement provides a benefit to employees. Assuming it were possible for those making the 2016 Agreement to provide a mechanism to subvert that entitlement, the context from the underpinning legislative regime makes clear that any such clause would need to be in clear and certain terms.
Context from cl 79 of the 2016 Agreement
24.Relevant context can be found in the 2016 Agreement and within cl 79 of the 2016 Agreement.
25.Clause 79 is titled “Post-registration Students” where a “post registration student” is an Employee who is a RN and undertaking post-registration study.[13] As such, it is reasonable to infer that the “arrangements” referred to at cl 79.8 are those related to Employees undertaking post-registration study.
[13] 2006 (sic) Agreement cl 79.1.
26.Each of cll 79.4 and 79.5 refer to an “employment arrangement” between Employee and Employer. That is, the framers of the 2016 Agreement chose to use different language in those clauses to indicate a direct connection between the Employees employment and the relevant “arrangement”. The use of the phrase “employment arrangement” is appropriate in the context of those clauses which relate to:
a.the Employee’s Substantive Salary (i.e., the Employee’s classification and Years of Experience as a RN) for the purpose of cl 79.4;
b.post-registration study taken by the Employee outside of employment with the Employer for the purpose of cl 79.5.
27.Clause 79.6 provides further context. It bears a number of similarities to cl 79.8. Both clauses provide that nothing in cl 79 (or relevant sub-clauses) affects certain matters. Both clauses are directed at preserving element of the status quo to prevent unintended consequences. The matter deemed unaffected by cl 79.6 is the Employee’s grade or increment applicable to work performed during the period of study that is not a direct requirement of the post-registration study. Clause 79.6 confirms that the entitlement to be paid for supervised experience and or clinical placements arising under cl 79.4 and 79.5 does not affect an Employee’s grade or increment (or employment arrangement identified in cl 79.4) for other, regular work.
28.Similarly, cl 79.8 can be seen to confirm the preservation of the “arrangement” by which an Employee would continue to perform their clinical placements/supervised experience. That clause confirms that nothing in cl 79 will allow an employer to reduce or terminate the arrangements by which a post-registration student undertakes clinical placements with the Employer. This is an important matter to preserve the proper operation of the clause. Were it otherwise, Employers could avoid the operation of cl 79.4 by withdrawing their agreement or limiting the capacity for an Employee to undertake clinical placements and to progress their post-registration study.
Context from other parts of the 2016 Agreement
29.Context can also be identified in other parts of the 2016 Agreement.
30.Clause 6.1 of the 2016 Agreement (“Incidence and Application”) provides that:
The terms of this Agreement will apply to the work and employment of all Employees, except where expressly stated otherwise.
31.Applying that provision to cl 79.4, an Employee in Ms Sampson’s position would be entitled to be paid her Substantive Salary for her periods of work performing clinical placements, unless the 2016 Agreement expressly stated otherwise. Clause 79.8 does not expressly state that an Employee in Ms Sampson’s position would not be entitled to be paid her Substantive Salary for her periods of clinical placements. It was open to the parties framing the 2016 Agreement to do so. They did not.
32.Beyond cl 79, the 2016 Agreement also refers to various other “arrangements” and types of “arrangement”. These arrangements reflect an understanding or agreement about how work is to be performed. By way of example, “Flexible work arrangements” are addressed at cl 16 and the “Flexible Working Arrangements Information Statement” at Appendix 8. Clause 4 of Appendix 8 provides that “Changes in working arrangements may include but are not limited to hours of work, patterns of work and location of work”. Likewise, cl 24.3 describes “transition to retirement” arrangements that may include but are not limited to:
a. a reduction in EFT;
b. a job share arrangement; and
c. working in a position at a lower classification or rate of pay.Industrial Context and Purpose
33.Clause 79 to the 2016 Agreement introduced a new entitlement for post-registration students to be paid for the performance of clinical placements. This was a departure from the former position clearly articulated by cl 40.2(b) of the 2012 Agreement. This change gave rise to a risk than an employer may alter its practice in an attempt to minimise or avoid Employees enjoying this new entitlement. Absent a relevant prohibition, an Employer might have done so by changing the arrangements by which post-registration students performed clinical placements. That is, an Employer may have reduced or removed access to clinical placements for post-registration students like Ms Sampson, and thereby limited or avoid the cost implications flowing from the new entitlement under cl 79.4.
34.The Applicants’ construction of s 79.8 squarely reflects that industrial context and purpose.
35.Conversely, the Respondent’s construction does not make industrial sense. It would fail to prevent Employers from avoiding their obligation under cl 79.4 and would give primacy to agreements and contractual arrangements beyond the scope of the 2016 Agreement.
The respondent’s submissions
On 18 March 2024, in compliance with the orders made on 15 May 2023, the respondent filed their submissions. The respondent’s submissions included the following contentions:
23.To make good its ultimate submission as to there being no obligation to make payment for the hours of work Ms Sampson performed in clinical placements (see above at [10]), Barwon Health makes the following submissions as to the operation of Sub Div D of Div 2 of Part 2-1 of the FW Act, the relevant legal principles concerning the intersection of the provisions of the FW Act with a written contract of employment, as well as the principles concerning statutory construction of an industrial agreement in an industrial context.[14]
[14] As to the relevant statutory construction principles, there is a pithy and useful summary in James Cook University v Ridd (2020) 278 FCR 566 at [65] (Griffiths & SC Derrington JJ); Barwon Health refers to and adopts that summary.
25.…An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.57 The FW Act uses the term “cover” to describe the extent to which the enterprise agreement is binding.[15]
[15] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595 at [3] (Colvin J).
26.There is no dispute between the parties that the 2016 EA applied to and covered the employment of Ms Sampson by Barwon Health.[16] The 2016 EA therefore applied to and covered Ms Sampson’s employment by Barwon Health for the purposes of Sub Div D of Div 2 of Part 2-1 of the FW Act.
[16] Agreed Facts at [9].
C.2 Intersection between the FW Act and the Employment Agreement
27The employment relationship between Ms Sampson and Barwon Health was a “compound of statutory elements and of the common law of contract, where the statutory elements predominate”.[17] Any rights and obligations that arose under the 2016 EA arose by force of the FW Act itself, rather than from the Employment Agreement.[18] As a “statutory artefact” with “legislative character”, an enterprise agreement is only enforceable under the FW Act, and not otherwise.[19] An employee and employer may agree to contractual terms that are more favourable than those arising by force of the FW Act, but an employment agreement will be ineffective to diminish or displace the statutory obligations.[20]
C.3 Construction of cl 79 of the 2016 EA and the Employment Agreement
28Whether Barwon Health has contravened the terms of the 2016 EA (which pertain to shift allowance, overtime and superannuation and the non-payment of wages for clinical placements), and whether Ms Sampson has any entitlement under cl 79.4 of the 2016 EA, is therefore a matter of construction of cl 79 of 2016 EA, viewed in the context of the matters identified in Section C.1 and Section C.2 above.
29. In its terms, cl 79.4 of the 2016 EA clearly does impose (and ordinarily would impose) a positive obligation upon an Employer, like Barwon Health, to pay a post-registration student for the period of their post-registration study, that includes periods of clinical placement, by reference to their substantive salary in accordance with the Employee’s arrangement. In that sense, it is a change from the specific exclusion of such payment obligation in cl 40.2(b) of the 2012 EA (see above at [13]). However, cl 79.4 must be interpreted with, and yield as necessary to, cl 79.8, which identifies that “nothing” in cl 79 overall “will affect current arrangements in place with an Employee at the commencement of” the 2016 EA. “Nothing” is a term which could not be more broadly operative. And when read with the words “current arrangements”, while not specifically defined, is entirely apt to pick up the circumstance of a fixed-term contract of employment that was made before the commencement of the 2016 EA, as was the case here, where it was made clear between the parties that Ms Sampson was entitled to the monetary remuneration, employment benefits and terms and conditions of employment specified in the 2012 EA (see, Employment Agreement at cl 4.1 and above at [21(d)] and [22]). There was no obligation existing under either the 2012 EA or the Employment Agreement for the payment of wages associated with clinical placements. That “current arrangement” was thereby preserved by dint of cl 79.8.
30.There is no generalised unfairness or non-beneficial operation generally that operates from this interpretation. Clause 79.8 does not purport to operate more broadly than the circumstance of post-registration students; it is not designed to preserve the monetary remuneration, employment benefits and terms and conditions of employment specified in the 2012 EA (i.e. to displace the entirety of the operation of the 2016 EA) more generally. Rather, all it does is to simply preserve one limited circumstance in the employment relationship during the balance of a fixed term contract of employment that may exist before the 2016 EA came into operation. There is no other obvious work for cl 79.8 to do in the circumstances; what otherwise are “current arrangements” when viewed in the context of cl 79 more generally,[21] which concerns the obligation of payment of substantive salary? That is the whole subject matter of cl 79; it is not adverting to any other terms and conditions under the employment relationship more generally (e.g. flexible work). The words are not relevantly ambiguous.[22]
[17] Visscher v Giudice (2009) 239 CLR 361 at [13] (Gummow J) & [71] (Heydon, Crennan, Kiefel & Bell JJ); Wardman v Macquarie Bank Limited (2023) 322 IR 278 at [126] (Wheelahan J).
[18] Byrne v Australian Airlines Ltd (1994) 185 CLR 410 at 419 (Brennan CJ, Dawson & Toohey JJ); Wardman v Macquarie Bank Limited (2023) 322 IR 278 at [126] (Wheelahan J).
[19] Toyota Motor Corporation Australia Limited v Marmara (2014) 222 FCR 152 at [89]-[90] (Jessup, Tracey & Perram JJ); Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2021) 289 FCR 308 at [94] (White J).
[20] Byrne v Australian Airlines Ltd (1994) 185 CLR 410 at 421 (Brennan CJ, Dawson & Toohey JJ); Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95 at [18] (French J); Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2021) 289 FCR 308 at [95] (White J); Wardman v Macquarie Bank Limited (2023) 322 IR 278 at [126] (Wheelahan J).
[21] JCU v Ridd at [65(i)].
[22] JCU v Ridd at [65(vi)].
The applicant’s submissions in reply
By agreement of the parties, provision was made for filing submissions in reply which the applicant did on 27 March 2024. The applicant’s reply submissions included the following:
The interpretation of the 2016 Agreement
7.The principles governing the interpretation of enterprise agreements appear to be uncontentious. The Respondent at RS [23] (and footnote 53) identifies the principles concerning statutory construction of industrial agreements in an industrial context. The Respondent specifically refers to and adopts paragraph [65] of James Cook University v Ridd[23] as a pithy and useful summary. Whilst it is submitted that the interpretation of enterprise agreements and statutory construction give rise to different considerations, the Applicants take no issue with the reasons at [65] of JCU v Ridd.
[23] JCU v Ridd at [65].
8.That said, the Applicants do not accept that the Respondent’s submissions involve a proper application of those principles. Four issues arise from the purported application of these principles at RS [30].
9.First, it is suggested that “all [cl 79.8 of the 2016 Agreement] does is to simply preserve one limited circumstance in the employment relationship …”. For the reasons identified at AS [31], it was open to the parties to specifically identify that the entitlement to payment for clinical placements under cl 79.4 did not apply to a post-registration student who had not been entitled to such payments before the commencement of the 2016 Agreement. Having not done so, it now falls to the Court to determine the circumstances that were preserved by the parties.
10.Second, as to the “other obvious work for cl 79.8 to do in the circumstances”, the Applicants refer to AS [15] and [16] and the industrial context identified at AS [33]. The “obvious work” for cl 79.8 to do was to prevent employers from altering practices around the provision of clinical placements to post-registration students to avoid the obligation to pay for the performance of that work.
11.Third, it is not correct that the “whole subject matter” of cl 79 concerns the obligation of payment of substantive salary. The subject matter of cl 79 as identified in the title to the clause is “Post-registration students”. The provisions of this clause include an entitlement for such employees to be paid for clinical placement/supervised experience (under cl 79.4) and to be paid for supervised experience (but not clinical placement under cl 79.5). However, the subject matter of cl 79 also extends beyond payments of substantive salary to:
a.preserving an employee’s grade or increment for work that is not a direct requirement of post-registration study (cl 79.6); and
b.the recognition of service for the purpose of Years of Experience as a Registered Nurse/ Midwife (cl 79.7).
12.In any event, the Applicants’ construction of cl 79.8 also relates to the payment of a post-registration student’ Substantive Salary for the performance of clinical placements/ supervised experience.
13.Fourth, the Respondent cites JCU v Ridd at [65(vi)] in support of a submission that the words of cl 79.8 are not relevantly ambiguous. Paragraph 65(vi) of JCU v Ridd provides (citations omitted):
A generous construction is preferred over a strictly literal approach […], but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” […].
The respondent’s submissions in reply
On 27 March 2024, the respondent also filed its submissions in reply. The submissions included the following:
4The Applicants’ submission that the focus of “current arrangements” only pertains to ensuring that an employer does “not cease to facilitate” an employee’s (already arranged) clinical placement after the commencement of the 2016 EA ignores the import of cl 79.4 in its terms, which is that any entitlement to payment for “periods of clinical placement” is in accordance with the employment arrangement. Contrary to the Applicants’ PS (at [15]-[16]), cl 79.8 says nothing in its terms about any specific obligation on the employer to preserve (i.e. not change, alter) the “same custom and manner as in place before the commencement of the [2016 EA]”. Viewed holistically, cl 79 is solely concerned with the extent of the payment entitlements (derived from “Substantive Salary” (cl 79.3)) that arise for those “post-registration students” (cl 79.1) for those who are – as part of their “employment arrangement” (cl 79.4) or not (cl 79.5) – undertaking “post-registration study” (cl 79.2). Clause 79.4 and cl 79.5 confirm that the focus of cl 79.4 is what the employer is obliged to pay the “post-registration student” as part of the Employment Arrangements for the correct classification/grading of their work; it is designed to ensure that there is no incorrect classification/grading to avoid a lower former of payment of wages by reference to doing clinical placements.
5The Applicants’ also submit that cl 79.6 is similar in its terms to cl 79.8 to support their interpretation referred to at [4] above. But cl 79.6 is quite prescriptive as to what it is seeking to ensure is unaffected and by express reference to cl 79.4 and cl 79.5 (“Nothing in subclauses 79.4 or 79.5 above affects”), not the whole clause as in cl 79.8 (“Nothing in this clause will affect)”. Clause 79.6 makes clear that an employee’s “otherwise applicable” grade[24] or increment for the work performed “during the period of study that is not a direct requirement of the post-registration study is not” taken to affect what ought to be their grade or increment for their classification of work as a Registered Nurse/Midwife (see, too, cl 79.7).[25] If cl 79.8 were to be interpreted as only preserving what clinical placements (and supervised experience) were in place as the Applicants’ submit, those words would likely have been specifically identified in cl 79.8 more specifically, particularly given the express use of “clinical placement” in cl 79.4 and 79.5. The Applicants’ interpretation is not supported by text or context or purpose of the provision either; it being open to follow the same format of style of prescription as in cl 79.6, or (better yet) specifically identify that cl 79.8 only preserves arrangements for clinical placements, and the entitlement in cl 79.4 arises regardless of any agreed arrangement beforehand concerning clinical placements. It does not say this or have a meaning to this effect. Clause 79.8 has more work to do than the Applicants’ suggest by reference to the surrounding provisions within cl 79.1-79.7. The Applicants’ suggestion that other provisions of the EA (which are not clearly referred to in cl 79.8) are also potentially undermined such as “flexible work arrangements” is met by the same force of reasoning.[26]
[24] Note the reference to “grading, sub-grading and Years of Experience as a Registered Nurse” in 2012 EA cl 40.2(b).
[25] Cf Applicants’ PS at [27].
[26] Cf Applicants’ PS at [32]; Barwon Health’s PS at [30].
SUBMISSIONS BEFORE THE COURT
At the hearing on 15 April 2024, Counsel for the applicants and the respondent adopted the detail of their written submissions referred to earlier and supplemented those with brief oral submissions.
Counsel for the applicants noted that there was no express exclusion from payment in the 2016 Agreement. Given that clause 79.8 could only have one meaning, the meaning that the respondent opted for would be contrary to the objects of the FW Act to allow collective arrangements to be undermined by individual (reverse grandfathered) arrangements. Instead, Counsel for the applicant contended the better interpretation of “current arrangements” was that it addressed preservation of the custom and manner of how post registration student arrangements and clinical placements were performed or arranged. It was submitted that contrary to the position taken by the respondent such a construction was consistent with protecting a benefit, the rest of clause 79 and the 2016 Agreement and the FW Act.
Counsel for the respondent acknowledged that the Court was provided with no assistance by way of any evidence from the parties about the disputed clause and was confronted with a binary proposition. Despite the impression created by some of the arguments made in his client’s written submissions[27] Counsel for the respondent disavowed any argument based on “express incorporation” or some “overarching preservation”. Counsel for the respondent submitted that there was no obligation under the 2012 Agreement or letter of appointment for the payment for clinical placements and this was, the “current arrangements” “preserved by dint of clause 79.8” should be the preferred interpretation arrived at when the “entire” sentence of clause 79.8 was read as a whole in the context of the rest of clause 79 and the 2016 Agreement.
[27] See for example paragraphs [22] & [29] of the respondent’s submissions.
CONSIDERATION
As the competing submissions of Counsel for each of the parties illustrates, the resolution of the question of construction is not without difficulty.
Ordinary meaning
I have already referred to, the parties’ written submissions relevant to this matter. Importantly the respondent agreed that “current arrangements” in clause 79.8 was not specifically defined and the applicants maintained the use of that phrase was “ambiguous”. I agree.
The criticisms the respondent made of the applicants’ submissions on this matter, at paragraph [4] and [5] of its submissions in reply, could equally be made of the respondent’s own submissions.
Given the words are ambiguous it is not possible to say that the words are incapable of carrying the meaning contended for by the applicants. The meaning that the respondent argues for is difficult to reconcile with the broad language used when a more precise definition was called for.
The relevant terms of the 2012 Agreement and the 2016 Agreement have been set out earlier. There was no express exclusion from payment in the 2016 Agreement rather, there was an express inclusion. As the applicants said in submissions it was open to the parties to specifically identify that the entitlement to payment for clinical placements under cl 79.4 did not apply to a post-registration student who had not been entitled to such payments before the commencement of the 2016 Agreement. They did not do so. The meaning of that omission should be taken into account.
Context from the underpinning legislative regime
Firstly, it is important to note that s.51(1) of the FW Act states that an enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to a person. Section 51(2) provides that an enterprise agreement does not give a person an entitlement unless the agreement applies to the person.
An enterprise agreement can only apply to person when it is in operation (s.52). The 2012 Agreement did not apply to any of the employees in question after it was replaced. It did not apply to the respondent either, because the 2016 Agreement, which has the same scope and application clause, wholly replaced it, meaning that since that time the 2012 Agreement has not applied to any of its employees.
Section 54 tells us that an agreement that applies to no-one ceases to operate, and s.58 states that it can never operate again. Because the 2012 Agreement is (and has been) inoperative, and applied to no-one, since it was replaced, it does not give a person an entitlement and cannot impose an obligation. There is no provision for any subsidiary, extra-operational effect of an enterprise agreement all of which tells against the meaning contended for by the respondent.
Furthermore, it would appear to be antithetical to the objects of the legislative framework to allow for an express (generally available) benefit provided for in a collective agreement to be undermined by an individual arrangement and there being no specific identification of that possibility. In contrast the meaning contended for by the applicants (including for the reasons referred to in paragraph 34 above) was more conformable with the FW Act.
Context from clause 79 of the 2016 Agreement
Again, the contentions of each of the parties relevant to this matter are readily ascertainable from the extracts set out above. If cl 79.8 were to be interpreted as the respondent contends it is difficult to accept (in such a comprehensive and prescriptive agreement) that would not have been specifically identified.
The subject matter of cl 79 as identified in the title to the clause is “Post-registration students”. The provisions of this clause include an entitlement for such employees to be paid for clinical placement/supervised experience (under cl 79.4) and to be paid for supervised experience (but not clinical placement under cl 79.5). However, the subject matter of cl 79 also extends beyond payments of substantive salary to:
(a)preserving an employee’s grade or increment for work that is not a direct requirement of post-registration study (cl 79.6); and
(b)the recognition of service for the purpose of Years of Experience as a Registered Nurse/ Midwife (cl 79.7).
Clause 79 speaks of rights and entitlements. A construction that was consistent with the preservation of the custom and manner of how post registration student arrangements were performed is explicable in that context. As is clear from the applicants’ submissions the meaning they contended for is more consistent with the general nature of that clause as a whole.
Context from 2016 Agreement
As was noted in submissions, clause 6.1 of the 2016 Agreement (“Incidence and Application”) provides that: The terms of this Agreement will apply to the work and employment of all Employees, except where expressly stated otherwise. Applying that provision to cl 79.4, an employee like the second applicant would be entitled to be paid her Substantive Salary for her periods of work performing clinical placements, unless the 2016 Agreement expressly stated otherwise.
Clause 79.8 does not expressly state that an Employee in the second applicant’s position would not be entitled to payment. Other parts of the 2016 Agreement there are references to various other “arrangements” and types of “arrangement”. These arrangements reflect an understanding or agreement about how work is to be performed. All these arguments tell in favour of the construction adopted by the applicants including that at paragraph [34] above.
Industrial context and purpose
Contrary to the argument made by the respondent, and as was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420 – 421 (albeit in relation to awards) an enterprise agreement creates rights and obligations which are statutory in character and operate in addition to the rights and obligations under a contract and, where inconsistent, no doubt displace them.[28] The applicants contended their preferred meaning (referred to at inter alia paragraph [34]) was consistent with the industrial context and purpose and recognised the change in the default position for payment introduced by the 2016 Agreement and so protected against avoidance rather than allowed for it.
[28] See also discussion in Jermiin v Commonwealth Scientific And Industrial Research Organisation [2021] FCCA 549 at [101] – [117] in relation to interaction between enterprise agreement and contract of employment.
A further difficulty confronting the respondent’s argument is there is Full Court authority to the effect that any term of a contract which purports to put employee in a worse position than under an award or industrial instrument (i.e. an enterprise agreement) is unenforceable: McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105; [2005] FCAFC 46 at [48] and [50] (Black CJ and Moore J, Lander J agreeing) and Regional Express Holdings Ltd v Clarke [2007] FCA 957; (2007) 165 IR 251 at [56] (Gordon J).
Ultimately, as there was no suggestion the 2012 Agreement was expressly incorporated into the second applicant’s contract of employment, the circular nature of the argument made by the respondent in support of its contended meaning fails to grapple with the statutory reality. The 2012 Agreement ceased to exist and the contract of employment (set out in the letter of appointment) was always subject to (and supplemented by) any more beneficial arrangements in a statutory instrument such as the 2016 Agreement.
CONCLUSION
The interpretation advanced by the applicants is, in my opinion, the correct interpretation. The ordinary meaning of the words used supports this interpretation. The interpretation is consistent with the industrial context and purpose of the arrangements in clause 79 and the 2016 Agreement. Moreover, the interpretation is consistent with the requirements of, and approach taken in, the legislation and also with the characteristics of the statutory arrangements which are in place with respect to enterprise agreements.
The statement of claim set out the declaratory and other relief sought by the applicant. However, as I did not hear from the parties on that issue, I will invite the parties to provide proposed orders consistent with these reasons. Otherwise, and as requested by Counsel, the matter will be listed for directions on a date to be fixed to program the determination of the question of penalty.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 30 April 2024ANNEXURE A
STATEMENT OF AGREED FACTS
1.In accordance with the orders made by consent by Registrar Wilson dated 15 May 2023, the parties agree on the following facts for the purpose of the final hearing in this proceeding fixed for 8 April 2024 for the purpose of s 191 of the Evidence Act 1995 (Cth).
THE PARTIES
Barwon Health
2. Barwon Health (the Respondent) is and was at all relevant times:
(a) a public health service;
(b)a body corporate established under section 65P of the Health Services Act 1988 (Vic);
(c)a national system employer within the meaning of sections 14(1)(a), 42 and 301 of the Fair Work Act 2009 (Cth) (FW Act)
(d)is the employer of persons whose names are listed in the ‘Register of Nurses’ established under section 95(1) of the Health Practitioner Regulation National Law Act 2009 (Qld), which applies to the Respondent by reason of section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic);
(e)between 29 February 2016 and 25 June 2017, the employer of Leah Sampson (Second Applicant); and
(f)operated the Women’s and Children’s Wards University Hospital Geelong located at Bellarine Street in Geelong (Women and Children’s Wards).
The Australian Nursing and Midwifery Federation
3.The Australian Nursing and Midwifery Federation (First Applicant) is and was at all relevant times:
(a)an organisation registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth);
(b) an employee organisation within the meaning of section 12 of the FW Act; and
(c)a person with standing to bring this proceeding pursuant to section 539(2) of the FW Act.
The Second Applicant
4. The Second Applicant is and was at all material times:
(a) a registered nurse in Victoria;
(b) between 29 February 2016 and 25 June 2017, employed by the Respondent:
i. in the position of Registered Nurse/Postgraduate Student Midwife; and
ii. on a part-time basis.
iii. to work at the Women and Children’s Wards.
(c) undertaking post-registration study in midwifery; and
(d)an employee of the Respondent within the meaning of sections 13, 42 and 301 of the FW Act.
INDUSTRIAL INSTRUMENTS
5.At all relevant times, the Respondent was required to comply with the FW Act and the Fair Work Regulations 2009 (Cth) in respect of its employment of the Second Applicant.
2012 Agreement
6.From 6 July 2012 to 22 December 2016, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012 – 2016 (2012 Agreement) applied to and covered:
(a)the Respondent in respect of its employment of some of its employees, including the Second Applicant; and
(b) the First Applicant.
7. The 2012 Agreement is attached as “Schedule 1” to this Statement of Agreed Facts.
8.The Second Applicant was a midwifery student within the meaning of that expression in clause 40 of the 2012 Agreement.
2016 Agreement
9.From 23 December 2016 to 22 February 2022, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016 – 2020 (2016 Agreement) applied to and covered:
(a)the Respondent in respect of its employment of some of its employees, including the Second Applicant; and
(b) the First Applicant.
10. The 2016 Agreement is attached as “Schedule 2” to this Statement of Agreed Facts.
11.The Second Applicant was a post-registration student within the meaning of that expression in clause 79 of the 2016 Agreement.
SECOND APPLICANT
Employment Agreement
12.The Second Applicant commenced employment with the Respondent on 29 February 2016, pursuant to a written contract of employment between the Respondent and the Second Applicant and a position description annexed thereto (the Employment Agreement).
13.The Employment Agreement is attached as “Schedule 3” to this Statement of Agreed Facts.
Clinical placements
14.In accordance with clause 40.2(b) of the 2012 Agreement, between 29 February 2016 and 22 December 2016, the Second Applicant was not entitled to be paid by the Respondent for clinical placements that she performed at the Women and Children’s Wards.
15. Between 29 February 2016 and 25 June 2017:
(a) the Second Applicant performed:
i.clinical placements at the Women and Children’s Wards within the meaning of that expression in clause 79.4 of the 2016 Agreement y; and
ii.the clinical placement hours with the Respondent as set out in ‘Annexure A’ of the Statement of Claim dated 16 December 2022.the Respondent did not pay the Second Applicant for the clinical placement hours set out in ‘Annexure A’ of the Statement of Claim dated 16 December 2022.
Rate of pay
16. Between 23 December 2016 and 31 March 2017, the Applicant was:
(a) classified as a Registered Nurse, Grade 2, Year 3 under the 2016 Agreement;
(b)entitled to be paid, and was paid for her work as a Registered Nurse, by the Respondent:
i.a base hourly rate of $30.67 for ordinary hours of work in accordance with Appendix 2 to the 2016 Agreement;
ii.an hourly rate of $46.01 for rostered time of ordinary duty performed between midnight on Friday and midnight on Sunday in accordance with clause 48.1 of the Agreement;
iii.a shift allowance of $27.10 where her rostered hours commenced between 6.00pm and 6.30am in accordance with clause 34(a) of the 2016 Agreement; and
iv.superannuation at the rate of 9.5% on all ordinary time earnings in accordance with clause 27.5 of the 2016 Agreement.
17. Between 31 March 2017 and 25 June 2017, the Second Applicant was:
(a) classified as a Registered Nurse, Grade 2, Year 3 under the 2016 Agreement;
(b)entitled to be paid, and was paid, for her work as a Registered Nurse, by the Respondent:
i.a base hourly rate of $31.60 for ordinary hours of work in accordance with Appendix 2 to the 2016 Agreement;
ii.an hourly rate of $47.40 for rostered time of ordinary duty performed between midnight on Friday and midnight on Sunday in accordance with clause 48.1 of the Agreement;
iii.a shift allowance of $27.90 where her rostered hours commenced between 6.00pm and 6.30am in accordance with clause 34(a) of the 2016 Agreement; and
iv.superannuation at the rate of 9.5% on all ordinary time earnings in accordance with clause 27.5 of the 2016 Agreement.
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