Australian Nursing and Midwifery Federation v Barwon Health

[2014] FWCFB 2777

[2014] FWCFB 2777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision
s.739—Disputes dealt with by the FWC Australian Nursing and Midwifery Federation
v
Barwon Health
(C2014/3061)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SMITH
COMMISSIONER LEE MELBOURNE, 8 JULY 2014

Appeal against decision [[2014] FWC 811] of Vice President Watson at Sydney on 5 February 2014 in matter number C2013/5948.

CONTENTS	Paragraph
Introduction	[1]
Relevant background	[4]
(a) Nature of Barwon Health and its aged care facilities	[4]
(b) Coverage of the Agreement	[5]
(c) October 2012 review	[8]
(d) 28 February 2013 Barwon Health Letter	[11]
(e) March 2013 Employee Impact Statement (EIS)	[12]
(f) 10 April Australian Nursing and Midwifery Federation (ANMF) Letter	[14]
(g) 6 May 2013 Barwon Health letter and May 2013 EIS	[15]
(h) 13 May 2013 ANMF letter	[17]
(i) 3 July 2013 ANMF letter	[19]
(j) Indicative rosters	[20]
(k) 25 July 2013 Barwon Health letter	[21]
(l) 2 September 2013 Barwon Health email	[22]
(m) ANMF dispute application	[23]
(n) FWC conferences	[25]
(o) September 2013 proposal	[26]
(p) 1 October 2013 ANMF letter	[27]
(q) 9 October 2013 proposal	[28]
(r) 11 October 2013 ANMF letter	[30]
(s) 15 October 2013 ANMF email	[31]
(t) Arbitration listings	[32]
(u) 23 October 2013 ANMF letter	[35]
(v) 28 October 2013 Barwon Health letter	[36]
(w) 29 October 2013 ANMF letter	[37]
(x) 29 October 2013 Barwon Health letter	[38]
(y) 30 October 2013 ANMF letter	[39]
(z) 1 November 2013 ANMF letter	[40]
Clause 11 – Dispute settling procedures	[41]
Clause 42 – Workload Management/Rates and Rosters	[43]
Grounds of appeal	[44]
Consideration of the grounds of appeal	[49]
Conclusion	[93]

Introduction [1] The Australian Nursing and Midwifery Federation (ANMF) has appealed a decision 1 of Vice President Watson in which his Honour determined that consultation in good faith as required by clause 42 of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (the Agreement)2 had occurred in respect of a Barwon Health proposal to reduce the nursing hours in two of its aged care facilities.3

[2] This decision determines the appeal. In dealing with the appeal, we exercised our discretion pursuant to s.596(2)(a) of the Fair Work Act 2009 (Cth) (FW Act) to grant both the ANMF and Barwon Health permission to be represented by a lawyer. We considered it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter associated with the interpretation of clause 42 of the Agreement and the assertions of jurisdictional error.

[3] In determining this appeal we set out relevant background to the matter, relevant clauses in the Agreement and the grounds of appeal. We then consider the grounds of appeal and conclude.

Relevant background (a) Nature of Barwon Health and its aged care facilities [4] Barwon Health is a public health service established under the Health Services Act 1988 (Vic) that provides “public health services including mental health services, community health services and residential aged care services.” 4 Residential aged care services are provided by Barwon Health at its Wallace Lodge (WL) and Alan David Lodge (ADL) facilities. Each of these facilities has 108 designated high level care beds, divided between two 54 bed units.

 (b) Coverage of the Agreement [5] The Agreement has a broad coverage. It covers employers (as defined), employees (as defined) and unions named by the predecessor to the Fair Work Commission (FWC) as parties covered by the Agreement. The ANMF is so named. The agreement was approved by the predecessor to the FWC on 29 June 2012.

 [6] “Employer” is defined in clause 4 of the Agreement as “any of the health sector agencies listed in Schedule A” to the Agreement. Schedule A lists more than 130 such agencies. Amongst the agencies listed are Alfred Health, Austin Health, The Royal Children’s Hospital and The Royal Women’s Hospital, as well as Barwon Health.

[7] “Employee” is defined in clause 4 of the Agreement as “a Registered Nurse, Midwife or Enrolled Nurse, employed by an Employer bound by this Agreement.”

(c) October 2012 review

[8] In October 2012, Barwon Health engaged Health-e Workforce Solutions to review WL and ADL. The objectives of the review were to:

“• Accurately model and cost current workforce practices;

• Review and analyse the EFT and skill mix of staff;

• Analyse the roster structure and workforce management practices;

• Accurately model and cost alternate models of staffing;

• Identify system improvements; and

• Make evidence based recommendations for improved practice.” 5

[9] The key points made by the review were that:

“• The current EFT level for Barwon high age care equals 169.62 at an estimated cost of $13.52M;

• The full year effect between ‘Model Actual’ and 2012-13 budgeted was estimated at an over run of 16.44 EFT at an additional labour cost of $1.7M;

• 25% of client demand were assessed as requiring low level care;

• Sick leave trends are a major concern, with an average 11% sick leave;

• Nurse Managers are rostered ‘clinical’ although do not take a clinical load;

• Excessive ANUM hours exist in rosters;

• There are increased resources on Saturday and Sunday early shifts;

• The shift overlap, especially between early and late shifts was not used effectively;

• There is a Grade 5 position employed at Alan David Lodge;

• Budgeted EFT for 2012-13 equals 153.18 with a budget dollar of $11.8M;

• An average 3 EFT of Agency staff were employed weekly;

• On average 19.5 EFT of bank staff were employed. Resulting in a dollar effect of $413K (to 07/10/2012);

• Supplementary (Bank and Agency) staff use was trending upwards since July;

• Annual leave management was poor in both departments;

• Facility Managers expressed staff performance issues.” 6

[10] The recommendations arising from the review included the following:

“Roster Practices

1. Review rostering practices emphasising staff flexibility;

2. Adopt an agreed roster template;

3. Centralise the management of staff between departments;

4. Review roster overlap, to gain more efficiency with staff’s time and productivity;

5. Consider decreasing the shift lengths - hence overlap time on weekend shifts, as education sessions would not be conducted;

6. Review Ward Clerks roster hours and templates;

7. Introduce designated management time;

8. Review roster numbers on weekends;

9. Review sick leave budget;

10. Realign staff numbers and skill mix to reflect EBA ratios;

11. Review Ward Clerks roster hours and templates;

12. Review & streamline the roster template for Life Style Officers across both Facilities…

Performance management

26. Formalise performance management processes;

27. Implement a policy regarding clinical staff allocations between wards, for flexible rostering of clinical resources between wards;

28. Address the issue of excessive ANUMs;

29. Review the role and efficiency of the medication endorsed Enrolled Nurse;

30. Evaluate handover techniques, for example, report by exception only;

31. Presentation to staff from HR manager on entitlements, policy and processes for sick leave, leave entitlement and long service leave management.

32. Consider the replacement of sick leave shifts with 6 hour shifts [exception of night shift];

33. Suggest replacement of sick leave [Enrolled Nurse]with Patient Care Workers;

Patient allocation

34. Reassess high level and low level bed numbers & location;

35. Review patient assessment processes;

36. Introduce third tier worker - Patient Care Workers (PCWs);

37. Review the staff skill mix in relation to resident’s needs, e.g. Use of PCW’s for low level care residents”. 7

(d) 28 February 2013 Barwon Health letter [11] On or about 28 February 2013, Ms Ann Hague, the Director of Aged Care and Divisional Nursing Director for the McKellar Centre at Barwon Health, sent the following letter to staff at WL and ADL:

“In preparation for implementation of the approaching Aged Care Reforms the division is reviewing all aspects of residential aged care. The Living Better Living Longer reforms are expected to include legislative, funding and practice changes and these will be coupled with changing consumer and community expectations.

At this time, Barwon Health is committed to altering nursing rosters in High Level Care. Beyond the Commonwealth reforms, other precipitating factors include the rosters have not been reviewed since the facilities were commissioned and our current financial position is not sustainable.

Barwon Health Aged Care management invite you to attend one of the following consultative meetings to discuss the proposed changes to nursing rosters:…

Should you not be able to attend either of the sessions listed above, you can collect an information pack from your Nurse Unit Manager following the sessions.

In preparation for this meeting, please find attached an Expression of Interest form for you to complete, outlining your preferred contracted hours of employment. The information on this form will assist your manager in planning for the changes with your preference in mind…

Please complete the attached Expressions of Interest form and return to your respective Nurse Unit Manager, by Friday 15th March 2013. Should you wish to meet with your manager and an HR representative for a discussion following the information sessions, please tick the designated box on the Expression of Interest form so that your manager may schedule a time with you.” 8

(e) March 2013 Employee Impact Statement (EIS)

 [12] On 6 March 2013, Barwon Health sent an Employee Impact Statement (EIS) on the roster changes to the ANMF. The roster changes were to be released to affected staff at the consultative meetings foreshadowed in Ms Hague’s letter and scheduled for that day. The EIS was as follows:

“EMPLOYEE IMPACT STATEMENT

ORGANISATIONAL CHANGE:	Modification of nursing rosters to meet changing business and service requirements
DEPARTMENT/UNIT	McKellar Centre High Level Care
DATE:	February 2013

1. ORGANISATIONAL DECISION

In preparation for implementation of the approaching Aged Care Reforms the division is reviewing all aspects of residential aged care. The Living Better Living Longer reforms are expected to include legislative, funding and practice changes and these will be coupled with changing consumer and community expectations.

At this time, Barwon Health is committed to altering nursing rosters in High Level Care. Beyond the Commonwealth reforms, other precipitating factors include the rosters have not been reviewed since the facilities were commissioned and our current financial position is not sustainable (budget overrun ytd $850k).

The proposed changes to the rosters in High Level Care are likely to include, but not necessarily be limited to, the rotation of rostered shifts for all staff, the introduction of a permanent roster for graduate nurses and the introduction of a roster that ensures that all staff work to their scope of practice, alignment with the state based ratios and the Nurse Unit Managers to work two clinical shifts per calendar week. It is also possible that other changes will emerge, but where this is the case we will consult with the ANF prior to making any changes.

Following consultation with staff and interested parties, implementation of the new rosters will commence in April 2013.

2. RATIONALE/INTENDED BENEFITS

Following a review of current rostering practices a number of clinical and operational service risks were identified as a direct result of the imbalances in the skill mix in the operational units including

a. Associate Nurse Unit Managers working in Registered Nurse shifts

b. Registered Nurses working in Associate Nurse Unit Managers shifts

c. An imbalance of Associate Nurse Unit Managers rostered between operational units

d. No identified roster for the Graduate Nurses

e. Graduate Nurses working Enrolled Nurse shifts across the facility

f. Potential inequity for staff rostered around set shifts

g. Enrolled Nurses not having the opportunity to use their medication management skills

h. There is a requirement to remedy current imbalances in skill mix across the operational units

i. At time the Nurse Unit Managers are not cognisant of clinical requirements for residents and not able to adequately represent needs and unit processes

The intended benefits of the proposed roster modifications include:

a. Provide opportunity for professional development and quality activities

b. Balance skill mix across all shifts and across the facilities

c. Improve recruitment opportunities

d. Promote staff retention and equity of access to rostered shifts

e. Improve continuity of care and reduce clinical risk

f. Greater team morale and staff collegiality

The proposed roster modification will result in improved professional and career opportunities, redistribution of weekend shifts or previously ‘set’ shifts across all staff, a balance of skill mix across all shifts, an alignment with the state based ratios and greater continuity of nursing practice.

3. NATURE OF THE CHANGES

The proposed changes to current rosters include:

a. Implementation of best practice rostering principles and business rules to guide the roster preparation and management

b. Develop consistent rosters across 24 hours per day, 7 days a week

c. A single roster for each Lodge, taking account of resident care needs

d. An alignment with the state based ratios and skill mix provisions i.e. removal of the extra EN morning shifts on Saturdays & Sundays and the removal of the 6hr float shift on Monday to Friday morning shifts

e. Night duty staff to rotate to for an agreed period of time to enhance their opportunities for education and collegiality

f. An evendistribution of rostered rotations for all staff and Associate Nurse Unit Manager positions

g. Improved flexibility to cover and plan for annual leave, LSL and study leave

h. Structured performance management, position descriptions and leave management

i. Nurse Unit Managers to work 2 clinical shifts per calendar week

4. LIKELY IMPACT(S) ON EMPLOYEES:

The new rosters will require nurses to rotate through day, evening, and night shifts for an agreed period of time. This rotation will enable completion of annual skill updates and competencies, facilitate integration with interdisciplinary team members and provide for participation in self-development, education, projects, professional and practice changes and clinical unit activities. It is expected that those staff affected by the ratio and skill mix alignment changes will be offered redeployment.

5. CONSULTATION PROCESS

The Rosters will be posted within the week commencing the 1^st of April, commencement of the new rosters will be 2 weeks after this time, the week commencing the 15^th of April

5.1. The employees affected by this organisational change will be invited to attend a staff meeting to discuss the rationale, intended benefits and likely impacts of the roster changes. Staff will be provided with a copy of this EIS and any related information at that time.

5.2. The following unions will be consulted regarding this organisational change:

Australian Nursing Federation (Victorian Branch).

5.3. The identified union will be provided with a copy of this EIS and invited to put forward an alternative proposal that achieves the same intended benefits of the organisational change, during the consultative period. During this time they will be given reasonable opportunity to hold meetings with members to discuss the likely impacts of the organisational change and prepare a response.

5.4. Barwon Health will be available to meet with the employees affected by this organisational change and the identified union during the consultation period to discuss the organisational change and any alternative written proposals that they might want to put forward.

5.5. Barwon Health will respond to any alternative written proposal submitted by the parties during the consultation period, within 7 days.

6. SUPPORT

Employees affected by organisational change will be provided with support and assistance to consider the range of options available to them, including reasonable time release to obtain counselling support through the Employee Assistance Program.

The Employee Assistance Program provider for this organisational change is:

Provider Name:

Staff Care Clinic

Contact number:

[Deleted]

BARWON HEALTH CONTACTS

The primary contacts for this organisational change are:

Ann Hague Director Aged Care

Bree Bushell or Louise Brown Human Resources Business Partner.” 9

[13] Attached to the EIS were the current and proposed rosters. The ANMF was advised by Barwon Health that the proposed rosters incorporated both units within each of WL and ADL. 10

(f) 10 April 2013 ANMF letter [14] During March 2013 there were exchanges of emails between Barwon Health and the ANMF over the proposed rosters. On 10 April 2013, the ANMF wrote to Barwon Health advising that the EIS had to be processed in accordance with clause 42 of the Agreement and maintaining the EIS did not address the relevant considerations in clause 42.1(c) of the Agreement.

 (g) 6 May 2013 Barwon Health letter and May 2013 EIS [15] In a letter dated 6 May 2013, Barwon Health responded as follows:

“RE: MODIFICATION OF NURSING ROSTERS – MCKELLAR CENTRE

I refer to Barry Megennis’ letter of 10 April 2013 and the reference to clause 42 of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (‘the Agreement’).

I accept that some elements of the proposed change may fall within the scope of clause 42 and welcome the opportunity to address the considerations of clause 42.1(c) as requested. I should also refer to sub-clause (a) which states that nursing resources should be used effectively and efficiently, recognising that nursing workload impacts on quality patient (or, in this case, resident) care and profoundly affects nurses’ work and performance.

The proposed change is intended to positively impact these factors.

Whilst the Employee Impact Statement (‘EIS’) does identify unsustainable cost issues, current rostering arrangements are not directed to best outcomes for either residents or nurses.

Consistent with sub-clause (b), the proposed change seeks to address this. Primarily, it does so through skill mix. Getting skill mix right is at the heart of the proposal.

Regarding the considerations at 42.1(c), I shall address each in turn. Please note that although several units are the subject of the proposal, given that they are all high care residential aged care units, the considerations do not impact differently.

PATIENT PROFILE

The proposed changes to the roster are intending to create a skill mix appropriate to the resident profile. We do not believe the current roster does this.

As residential aged care units, there is general consistency regarding factors such as case mix, age, complexity and length of stay. The throughput considerations referred to in the Agreement are not relevant. The purpose of the proposed change is to implement a roster that properly takes resident profile into account.

CAPACITY OF NURSING STAFF TO COMPLETE THEIR DUTIES WITHIN EXISTING WORK HOURS

An appropriate skill mix is intended to positively impact on this consideration. At point 2 of the EIS, the intended benefits are listed. These, in broad terms, concern a better working environment. I am mindful that the proposal does involve a limited reduction in nursing hours (although maintaining EBA agreed ratio levels), namely the removal of the extra EN morning shifts on Saturday and Sunday and the removal of the 6 hour float shift on Monday to Friday morning shift in Alan David Lodge, and a reduction and redistribution of hours in Wallace Lodge. After consideration, it is likely that these measures were introduced as a substitute for addressing skill mix issues.

QUALITY OF CARE/CLINICAL RISK

When reviewing nurse sensitive indicators, a review of significant absenteeism across the organisation was undertaken during late 2012. This review highlighted that both Wallace Lodge and Alan David Lodge had significant absenteeism levels.

This has, in part, prompted our decision to propose these changes to ensure that our employees are able to meet their workload requirements in an ongoing fashion. Put another way, these nurse sensitive indicators have highlighted the need for change. As you will be aware, information regarding such indicators is collected and reviewed on an on-going basis. I would be happy to discuss this with you further.

OH&S CONSIDERATIONS

There is no change to physical environment. A roster with a skill mix that is calculated to support appropriate outcomes for residents is intended to result in a safer working environment. This principle underpins clause 42, including clause 42.1(a), and in this instance assists in reducing absenteeism levels across the units.

NURSING/MIDWIFERY STAFF ENGAGEMENT

Barwon Health has commenced a thorough consultation process, including:

• The development of a Change Impact Statement, a copy of which has been provided to ANF and affected employees,

• A request that staff advise of roster preferences so that these can be taken into account,

• Facilitation by Workforce Partnerships of individual meetings for staff and their respective manager to discuss personal circumstances which may impact on their ability to work certain days/shifts

• On-going communication with employees and ANF, including responding to staff queries in an expeditious manner.

Further, Barwon Health will make EAP services available to affected staff.

It should be noted that staff have raised concerns about a lack of equity in current arrangements.

The Employee Impact Statement sets out both the reasons and intended benefits of the proposed change at point 2 and I am mindful that these are consistent with clause 42 and, in particular, clause 42.1(c).

I am mindful that clause 42 refers to a written proposal being provided both to employees and their representative. For the sake of completeness, a copy of this correspondence will be provided to affected staff. Together with the Employee Impact Statement, this shall constitute the Proposal for the purpose of clause 42.

As always, it is Barwon Health’s position that we wish to work through these issues in an amicable manner.” 11

[16] The EIS attached was similar to that of 6 March 2013, although there was an increase in the nurse unit manager hours in the proposed rosters.

 (h) 13 May 2013 ANMF letter [17] On 13 May 2013 the ANMF advised Barwon Health that it did not consider the proposal of 6 May 2013 met the terms of clause 42 of the Agreement in that it did not adequately address each of the provisions of clause 42.1(c) of the Agreement. 12 The proposal of 6 May 2013 was provided to affected staff by Barwon Health on 13 May 2013.

 [18] Barwon Health then met with the ANMF regarding the proposal throughout May and June 2013.

(i) 3 July 2013 ANMF letter [19] On 3 July 2013, the ANMF sent the following letter to Barwon Health:

“ RE: ORGANISATIONAL CHANGE – WORKLOAD MANAGEMENT

We refer to your correspondence of 6 May 2013 setting out a proposed organisational change relating to a modification of nursing rosters at the McKellar Centre. We further refer to the meetings that we have held with you relating to the proposal to modify the nursing rosters at the McKellar Centre.

As you are aware, we have consistently asserted that the proposal does not satisfy the provisions of the industrial instrument that covers each of our organisations.

1. Clause 42

You have suggested that the change described falls within the auspices of cl. 42 of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (Agreement) for reason that the change relates a below ratios or CWMA distribution.

We advise that the four-week consultation referred to in cl. 42.3(b) cannot commence until a change proposal which addresses the considerations contained in cl. 42.1(b) and (c) is provided. We note that the requirement to address each of the considerations is a substantive requirement demanding significantly more than mere reference to those matters. In order to ‘address’ each of those ‘considerations’, the proposal must include relevant information/data on which you rely to inform the proposal, thus establishing the nature and extent of its impact on patient or resident care.

We are of the view that your material fails to address the considerations contained within cl. 42.1(c)(i)-(v) by reference to the impact on patient/resident care and nurses workload.

We note that the changes concerned involve the removal of 148 nursing hours per week from Alan David Lodge and 176 nursing hours per week from Wallace lodge.

The requirement under Clause 42 is that a proposal address the impact of the changes proposed. For example in relation to cl. 42.1(c)(i), information concerning the ACFI classification of each resident and detailed admission and discharge data for the period from 1 April 2012 to date should be prepared, and related to the changes proposed in order to assess whether those changes are consistent with the demands placed on staff by reference to the ACFI classification and the admission and discharge data.

In relation to cl. 42.1(c)(ii), it can be expected that a proposal would, for example, demonstrate how nursing staff will be able to complete their duties within existing working hours noting the extent of the reduction in nursing hours. This might involve an articulation of specific duties that are currently performed by nurses that will no longer be required to be performed for residents of each of Alan David Lodge and Wallace Lodge. Similarly, a proposal under Clause 42 could be expected to clearly specify the impact of the changes on the quality of patient/resident care in each Lodge by reference to appropriate objective quality measures.

We also note your obligations under health and safety law to consult with HSRs and affected employees.

In relation to cl. 42.1(c)(iii), your material indicates that nursing absenteeism was a significant factor related to quality of care and clinical risk. Consistently with the approach outlined above a proposal could be expected to demonstrate how the changes proposed, in this case an overall reduction of nursing hours from the roster at Alan David Lodge and Wallace Lodge, will address the issue of absenteeism and its impact on quality of care.

Your proposal further alludes to the collection and review by Barwon Health of information relevant to nurse sensitive indicators. Can you please provide full details of the indicators that you collect and review. It would be expected that a Clause 42 proposal would provide information as to how each of them will be impacted insofar as it relates to the quality of care to be prospectively provided to the residents at McKellar Centre were the reduction in nursing hours to proceed.

Similar observations can be made about the other considerations in Clause 42.1(c) and we do not suggest that the matters to which we have referred above are exhaustive of the material necessary to address those Clause 42.1(c) ‘considerations’.

We attach copy correspondence by email exchanged between the undersigned and the Executive Director, Human Resources, Perry Muncaster dated 5 June 2006 that confirmed the assessed and agreed needs for nursing hours for Wallace Lodge. As you are aware, a similar assessed and agreed needs for nursing hours at Alan David Lodge was reached in 2007 upon the commissioning of the new Alan David Lodge in 2007. In addressing your obligations under Clause 42, we further request that you specifically address how the assessed and agreed need for nursing hours in 2006 and 2007 have materially altered to the extent that the proposed reduction in nursing hours will not impact on the quality of patient/resident care in each facility.

We seek a response to this correspondence at your earliest convenience, including acknowledgement that the current material is not compliant with Clause 42, in that it does not constitute a ‘proposal’ for the purposes of that Clause. We also seek an undertaking that the proposed change will not be implemented at this time.

In addition, we remind you that cl. 42 does not allow for the unilateral changing of an Employee's contract of employment. It is the view of ANF (Vic Branch) that the changes proposed will require amendments to current contractual arrangements which have not been agreed.

2. Proposed Rosters

At our meeting on 20 June 2013 we undertook to provide to you concerns held by individual ANF members in relation to the rosters circulated on 14 June 2013 for Wallace Lodge and Alan David Lodge. We note that we provided that material to you on 1 July 2013 and attach it again to this correspondence for ease of reference.

The spread sheets detail the specific concerns of individual ANF members and note that you have indicated that these matters will further be considered by relevant McKellar Centre management in drafting further rosters for consideration by the ANF (VB) and our members. We understand that you estimate this may take a further 2 weeks and that the further amended rosters will again be circulated on a draft and without prejudice basis (particularly as to our views regarding Clause 42) to the ANF (VB) and our members.

3. Organisational Change Agreement

We note that you advised at our meeting on 20 June 2013 that Barwon Health proposed that the payment of any salary maintenance arising from any proposed modification of nursing rosters would be limited to a 6 month period. We confirm that ANF (VB) advised that this period was unacceptable and that salary maintenance should be payable for a 12 month period. We invite you to reconsider your view on this matter and to advise the ANF (VB) of the position your organisation holds on this point, particularly in light of the expressed view of the Barwon Health Executive Director Human Resources, Perry Muncaster, outlined in the Agreement reached between the ANF and Barwon Health on 5 June 2006 as referenced above.

4. Enrolled Nurses – Change of Shift Allowance

We note that we requested at our meeting on 20 June 2013 details concerning the application of Cl. 58.1– Change of Shift Allowance at the McKellar Centre, with specific details for each of Wallace Lodge (both Bay and Garden) and Alan David Lodge (both Otways and Bellarine) and would be grateful for the provision of that information.

5. Associate Nurse Unit Managers

We note that we requested at our meeting on 20 June 2013 details concerning the application of Cl. 43.2 – Registered Nurse – Associate Nurse Unit Managers at the McKellar Centre, with specific details for each of Wallace Lodge (both Bay and Garden) and Alan David Lodge (both Otways and Bellarine) and would be grateful for the provision of that information.

We request that details be provided as to the number of permanent EFT of ANUMs appointed on a monthly basis for the period from 1 June 2007 to date.” 13

(j) Indicative rosters

[20] On 15 July 2013, Barwon Health provided each of the staff affected by the proposal with their indicative roster over a four week period. The indicative roster was provided to the staff for their review and consideration by 26 July 2013. The indicative rosters were sent to the ANMF on 25 July 2013. 14

 (k) 25 July 2013 Barwon Health letter [21] On 25 July 2013 Barwon Health also wrote to the ANMF as follows:

“RE: REQUEST FOR FURTHER INFORMATION – MCKELLAR CENTRE CLAUSE 42 CHANGES

I refer to your letter of 3 July 2013 requesting further information regarding the proposed clause 42 changes at our Alan David Lodge and Wallace Lodge Aged Care Facilities. I will address each in order below.

1. CLAUSE 42

I note that the ANF seeks Barwon Health to ‘address’ further the requirements of information as per the requirements under Clause 42.1(b) and (c). This request is in addition to the information supplied by Barwon Health to the ANF in response to requests made in April and May 2013.

As always, and through our consultation meetings held during May and June 2013 regarding this change arrangement, Barwon Health wishes to maintain and provide the relevant consultation with our employees and their representatives regarding the proposed changes.

As we continue to provide consultation and information in good faith, it is becomingly increasingly unclear as to the specific information requirements of the ANF to make an informed decision to progress the consultation process re the proposed changes. Barwon Health maintains its position that it has provided sufficient relevant information as per the requirements of the Enterprise Agreement.

The letter dated 3 July has many ‘examples’ of relevant data that may be provided, but does not articulate the need nor direct relevance of the information; in what form or to what detail.

As previously advised, Barwon Health believes it has provided sufficient information to the ANF re this matter. However, to continue in the spirit of good faith consultation, Barwon Health is willing to provide additional relevant information, but seeks from the ANF clarification of the following:

• What specific information is being sought by the ANF in respect to the requirements of Clause 42 for this change proposal - additional to that already requested and responded to;
• In what format should the information be presented;
• Why this particular information is requested (ie, the relevance to the principles at cl 42.1(c));
• What use the ANF will put this information to; and
• For all points of information requested, agreement from the ANF that it will not use the information provided by Barwon Health for any purpose or in any forum outside this consultation process.

The provision of the above will then provide consistent consultation points regarding our change proposal.

Further I note that you refer to an email from Mr Perry Muncaster from 2006 regarding the implementation of rosters at that time. As previously advised in our meeting held 6 June 2013, any organisation has a right to review its workplace practices.

2. PROPOSED ROSTERS

As per your letter dated 3 July 2013, the draft rosters have been reviewed and reissued to employees for their further consideration. I have sought these be forwarded to yourself as well.

3. ORGANISATIONAL CHANGE AGREEMENT

Barwon Health’s current position remains at salary maintenance of 6 months.

4. ENROLLED NURSES – CHANGE OF SHIFT ALLOWANCE

Barwon Health believes this is outside the scope of this organisational change, and will respond to this query separately.

5. ASSOCIATE NURSE UNIT MANAGER APPOINTMENTS

Barwon Health notes the request for information regarding the appointment of ANUMs within the Alan David Lodge and Wallace Lodge on a monthly basis dating back to 1 June 2007.

As previously advised, we seek the clarification of the requirement of this information, and in particular the length and breadth of information requested.

As such, we again request that you advise:

• Why this particular information is requested;
• What use the ANF will put this information to; and
• For all points of information provided, agreement from the ANF that it will not use the information provided by Barwon Health for any purpose or in any forum outside this consultation process.

As previously stated, Barwon Health maintains that the Employee Impact Statement and the further correspondence of 6 May 2013 issued to staff sets out both the reasons and intended benefits of the proposed change. I am mindful that these are consistent with clause 42 and, in particular, clause 42.1(c).

As advised at the time that these shall constitute the Proposal for the purpose of clause 42.

As such, Barwon Health maintains that the consultation process should proceed given the information provided to date meets the proposal requirements under the Enterprise Agreement.

As always, it is Barwon Health’s position that we wish to work through these issues in an amicable manner.” 15

(l) 2 September 2013 Barwon Health email [22] Barwon Health and the ANMF met on 21 August 2013. On 2 September 2013, Barwon Health sent an email to the ANMF as follows:

“In note that as per our meeting of 21 August 2013, the ANMF were to prepare and submit a letter to Barwon Health regarding the current proposed changes within the Wallace Lodge and Allan David Lodge facilities.

Given that the ANMF has not presented any further information regarding this change proposal, Barwon Health advises that as per Clause 42, the organisation considers we have now met the consultation requirements, and will implement the changes from the next roster period.

I am unavailable for the rest of this week, please contact Ann Hague or Paula Lee (Workforce Business Partner) re this matter.” 16

(m) ANMF dispute application

 [23] On 9 September 2013, the ANMF made an application 17 to the FWC to deal with a dispute between the ANMF and Barwon Health pursuant to the dispute settlement procedure in the Agreement. In the application the ANMF stated that:

“The dispute concerns compliance with the processes identified in Clause 42 and whether consultation in good faith can occur in the absence of the considerations, identified in clause 42.1, being addressed by Barwon Health in their change proposal.” 18

[24] On 12 September 2013 Barwon Health advised the ANMF that the status quo would remain throughout the dispute settlement procedure process.

 (n) FWC conferences [25] The FWC conducted conferences on the dispute application on 18 September 2013, 2 October 2013 and 14 October 2013.

 (o) September 2013 proposal [26] On 25 September 2013, Barwon Health sent a further revised “clause 42 change proposal” to the ANF seeking to address matters raised by the ANF at the first conference conducted by the FWC.

 (p) 1 October 2013 ANMF letter [27] The ANMF responded to Barwon Health on the further revised proposal on 1 October 2013 as follows:

“Re: C2013/5948 – ANMF AND BARWON HEALTH

I write in response to the document provided to the ANMF by Barwon Health on 25 September 2013, arising from the above proceedings before Deputy President Hamilton.

BACKGROUND

As you are aware, the crux of the matter at this point is whether or not a proposal has been generated by Barwon Health that meets the requirements of Clause 42 of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016. (“The EBA”)

The genesis of Clause 42 was a meeting held during negations for the new agreement between the ANMF, the VHIA, representatives of Government and eminent nurse researcher Professor Christine Duffield. In that meeting we discussed the research that had been published that linked staffing levels and skill mix to patient outcomes. These were generally in the form of measurable impacts on patient care referred to as ‘nursing sensitive’ indicators or outcomes. These were well understood and already measured by health services, and reported to and monitored by the Australian Commission on Safety and Quality in Healthcare. Further negotiation added references to occupational health and safety, workloads and staff engagement.

From the perspective of the ANMF, the clause allowed ‘evidence based’ deviations from the “Current Workload Management Arrangement” (CWMA) where evidence was available regarding its impact and such evidence showed that there would be no negative consequences on patient care, OHS, staff engagement and work could still be completed within paid time. In addition, such a proposal could not result in the health service not honouring its contractual obligations to its employees.

Hence any proposal, to be compliant, is required to address each of the named considerations.

The ANMF rejects the assertion by Barwon Health that the agreed additional staffing levels “were required to ensure a smooth transition to the new homes”.The additional staffing was not at any time regarded as transitional.

ANMF POSITION ON BARWON HEALTH REVISED PROPOSAL

The ANMF has reviewed the proposal in detail, and does not believe the proposal meets the requirements of Clause 42, and hence is not a clause 42 proposal.

Detailed reasons are provided below. In summary these include:

A. The proposal is not for the primary purpose required under Clause 42

B. The proposal does not address, or properly address, each relevant consideration under Clause 42

C. The proposal has regard to irrelevant considerations

D. The proposal includes effects that would breach employee contracts of employment

E. Barwon Health is not complying with existing EBA obligations that impact on Clause 42 and the proposal does not comply with other EBA requirements that cannot be varied by Clause 42.

A. THE PROPOSAL IS NOT FOR THE PRIMARY PURPOSE REQUIRED UNDER CLAUSE 42

Clause 42.1(b) stated that the primary considerations will be the impact on quality of patient care.

I note the stated purpose of the proposed change is “to implement a roster that properly takes resident profile into account”. I also note, as detailed later, that Barwon Health is silent on resident profile as a relevant consideration.

Other stated purposes are

• to redistribute ‘the current roster patterns to provide a better balance of skill mix across all shifts, and alignment with the state based ratios to provide greater continuity of nursing practice.’



• ‘Following a review of current rostering practices a number of clinical and operational service risks were identified as a direct result of the imbalances in the skill mix in the operational units including: …’



• ‘Barwon Health has committed to altering the current nursing rosters to meet business and service requirements and to provide an equitable skill mix across the operational units in High Level Care.’



• ‘At this time, Barwon Health is committed to altering the nursing rosters in High Level Care. Beyond the Commonwealth reforms, other precipitating factors include the rosters have not been reviewed since the facilities were commissioned and our current financial position is not sustainable.’ Emphasis added.

It is abundantly clear from Barwon Health’s proposal that the primary consideration is cost savings. In approaching the proposal from this angle, the proposal fundamentally deviates from the stated and intended purpose of Clause 42. Having arrived at a decision to save money, the proposal then sets out to explain the impact. A clause 42 proposal must commence with a hypothesis that patient care will be improved, or at least not be negatively impacted on by the proposal.

B. THE PROPOSAL DOES NOT ADDRESS, OR PROPERLY ADDRESS, EACH RELEVANT CONSIDERATION UNDER CLAUSE 42

The measures for this under clause 42 are:

• Patient Profile – consideration of patient case mix, age of patient, complexity, length of stay and throughput of patients in the clinical setting e.g. emergency admissions, elective admissions and transfers to/from critical care areas; and



• The capacity of nursing/midwifery staff to complete their duties within existing work hours; and



• Quality of care/clinical risk, including nurse sensitive adverse outcomes such as falls (with or without injury), urinary tract infections, pneumonia, decubitus ulcers, thrombosis, sepsis and medication errors (with or without patient consequences);



• OH&S considerations such as physical environment and staff safety; and



• Nursing/Midwifery staff engagement.

Responding to each in turn, ANMF advises:

1. Patient Profile

Relevantly, Barwon Health claim to address this consideration as follows:

Residents in residential aged care usually present as having significant multimorbitities which are complex and heterogeneous. Monitoring clinical indicators that are targeted at single indicators may result in care that is fragmented and poorly co-ordinated and produce care plans that are inefficient, ineffective or even harmful. The proposed changes as identified within this proposal are relevant to Aged Care facilities and nursing.

Many of the factors to be addressed within the Cl42 are predominately Acute Care specific, and as such this proposal attempts to address the requirements of Cl42 with an Aged Care focus.

As residential aged care units, there is general consistency regarding factors such as case mix, age, complexity and length of stay. The throughput considerations referred to in the Agreement are not relevant.

The ANMF asserts that the patient profile at each site is not typical of an aged care facility. The Barwon Health proposal has no regard to the atypical patient profile, and its complexity, including:

• A quadriplegic patient, with or without a tracheostomy.



• A bariatric patient, with associated comorbities requiring complex nursing care



• A young patient with complex dressings and chronic disease process. The nursing of the young person requires specific skills and knowledge appropriate to the age, functionality and capacity of the resident.



• Late stage palliative care admissions



• Acquired Brain Injury Patient (Drug/alcohol overdoses, Motor vehicle accidents, CVA’s) also typically young people



• Down’s syndrome.



• Birth defects – leading to Anterior Venous Malformation, with subsequent haemorrhage. Early adult group



• Cerebral Palsy



• Dementia patients (younger adults are being diagnosed with dementia)



• Post Cardiac arrest with poor outcomes leading to functional defects.



• Multiple Sclerosis

2. The capacity of nursing/midwifery staff to complete their duties within existing work hours

The following are excerpts from the proposal that are said to, or do, impact on this consideration:

An appropriate skill mix is intended to positively impact on this consideration. At point 2 of this proposal, the intended benefits are listed. Being mindful of the workload management priorities, Barwon Health has established “How We Work” Committees at both facilities. These committees have been established to provide employees the opportunity to have input into their workplace practices to ensure consistent and appropriate capacity to perform.

These committees have been in discussions regarding the roster changes since May 2013, and continue to progress to ensure appropriate distribution of tasks based on the rostering arrangements.

How will we cope with less staff?

As discussed at the Meetings on the 7th of March, we are interested to hear of potential solutions and changes to managing the care of residents in this changing environment. If you have a suggestion or an alternative proposal that achieves the same intended benefits of these organisational changes, please discuss them with your colleagues and with your Nurse Unit Manager.

If we don’t get all documentation done during the shift who will?

Documentation is a required part of care. The responsibility for the completion of the necessary documentation remains with all staff. This has not changed.

How is the 6 hour shift going to manage finishing at 8.30pm when we haven’t even finished putting residents to bed?

There is the need to balance the work requirements across all shifts. This will ensure that all care needs are met in the most timely and expedient manner for residents and staff alike. If you have a suggestion or an alternative proposal that achieves the same intended benefits of these organisation changes, please discuss them with your colleagues and with your Nurse Unit Manager.

It can hardly be asserted by Barwon Health with any accuracy that they have addressed this consideration merely by identifying it and inviting staff to make suggestions.

3. Quality Care/Clinical Risk

The ANMF agrees with Barwon Health that “Safe and appropriate nursing care of residents requiring high level care is essential to ensure early identification and response to the dynamic needs of residents”.

We note that Barwon Health undertake regular monitoring and analysis of four indicators, which in their view provide alerts to a range of underlying issues related to the health and wellbeing of residents:

Falls with fractures:

An elderly person with a facture is at high risk of complications. While medical advances have resulted in improved outcomes for the elderly, the potential for pain, loss of mobility, loss of condition, and loss of confidence remains. Nurses’ responsibility in continuously identifying and working with residents to prevent falls is essential.

Pressure injuries:

Pressure injuries are caused by the intensity and duration of pressure; and/or the skins ability to tolerate pressure. The role of nurses in assessing and addressing the risk of pressure injury requires sound judgement and consistent practice.

Unplanned weight loss:

There are many underlying reasons why a resident may have unplanned weight loss. Nurses’ are able to detect changes in eating and drinking patterns and address issues related to meals, depression, comorbities and lifestyle issues.

Restraint

The use of restraint is highly questionable in an environment where human rights are highly valued. However, inadvertent restraint such as the way a resident is seated at a table can be considered to be a form of restraint. Intelligent regular auditing is required to ensure practices are consistent the Charter of Resident Rights as described in the Aged Care Act 1997.

The clause 42 requirement explicitly includes:

• falls (with or without injury)



• urinary tract infections,



• pneumonia,



• decubitus ulcers,



• thrombosis,



• sepsis and



• medication errors (with or without patient consequences);

These are consistent with published research on adverse patient outcome prevention.

Examples of published research focussed on aged care include:

• Relationship of Nursing Personnel and Nursing Home Care Quality (2004) Jane E Bostik, Journal of Nursing Care Quality, Vol 19, No 2, pp130-136



• Nurse Staffing Patterns and Quality of care in Nursing Homes (2004) Weech-Maldonado et al, Healthcare Management Review, 29(2), pp107-116



• Horns, S.D., Buerhaus, P., Bergstrom, N. & Smout, R.J. (2005). RN staffing time and outcomes of long-stay nursing home residents. American Journal of Nursing, 105(11), 58-71.

Due to the acute medical needs of many of your nursing home patients (some of which are described above), we strongly dispute that published research on the effects of staffing and skill mix on medical patients are irrelevant. Relevant research includes:

• Each additional patient added to nurses workload associated with 7% increase in risk of dying within 30 days of admission. Each additional patient added to nurses workload associated with a 7% increase likelihood of failure to rescue. (Aiken et al 2002)



• High patient turnover (4%), below target staffing (2%) on a shift increase the risk of dying (Needleman et.al. 2011)



• Effects of New Zealand’s health reengineering on nursing and patient outcomes, McCloskey & Diers (2005), where nurse hours declined by 36%:



• Significant increases in complications for patients;



• central nervous system complications,



• wound infection,



• pulmonary failure,



• physiological and metabolic derangement,



• urinary tract infections,



• Sepsis,



• Pressure injuries.



• The impact of implementing a NHPPD Staffing Method:



• 25% decrease in mortality rate



• Medical 24%



• Surgical 25%

Twigg, D., Duffield, C., Bremner, A., Rapley, P., & Finn, J. (2011). The impact of the nursing hours per patient day (NHPPD) staffing method on patient outcomes: a retrospective analysis of patient and staffing data. International Journal of Nursing Studies, 48, 540-548.

The Barwon Health proposal fails to mention a number of these, partly mentions some but on every occasion gives absolutely no indication on what the impact of the proposed change will be on any of the indicators.

4. OH&S considerations such as physical environment and staff safety

The proposal states the following, which are either stated to be OHS consideration, or fall presumably under OHS considerations:

New electric lo-lo and ‘floor-line’ beds

Provision of ceiling tracks and hoists in all rooms

Acquisition of specialised bariatric equipment and pressure relieving mattresses

How will we cope with less staff?

As discussed at the Meetings on the 7th of March, we are interested to hear of potential solutions and changes to managing the care of residents in this changing environment. If you have a suggestion or an alternative proposal that achieves the same intended benefits of these organisational changes, please discuss them with your colleagues and with your Nurse Unit Manager.

If we don’t get all the documentation done during the shift who will?

Documentation is a required part of care. The responsibility for the completion of the necessary documentation remains with all staff. This has not changed.

As appropriate skill mix is intended to positively impact on this consideration. At point 2 of this proposal, the intended benefits are listed.

Being mindful of the workload management priorities, Barwon Health has established ‘How We Work’ Committees at both facilities.

These committees have been established to provide employees the opportunity to have input into their workplace practices to ensure consistent and appropriate capacity to perform.

These committees have been in discussions regarding the roster changes since May 2013, and continue to progress to ensure appropriate distribution of tasks based on the rostering arrangements.

There is no change to physical environment in this instance.

A roster with a skill mix that is calculated to support appropriate outcomes for residents is intended to result in a safer working environment. This principle underpins clause 42, including clause 42.1(a), and through the ‘How We Work’ Committees, Barwon Health is committed to ensuring that appropriate OHS standards are maintained.

Furthermore, a review of significant absenteeism across the organisation was undertaken during late 2012. This review highlighted that both Wallace Lodge and Alan David Lodge had significant absenteeism levels being (on rank of the approx. 200 business units across Barwon Health):

As exhibited, both facilities ranked in the top 35 business units to have significant absenteeism across the organisation. In particular both ends of Wallace Lodge were within the top 10 business units.

Barwon Health considered that with this significant absenteeism, there could also be OHS issues such as workload increases, lower resident support and non-adherence to process.

As such, Barwon Health considers that the changes to the roster will assist in addressing the absenteeism statistics through addressing workload and staffing pressures to provide consistent health and wellbeing outcomes to the employees of the facilities.

Some of the above are merely restating past intervention and are not relevant to the prospective risks of the proposal. Others are recognising a hazard (unable to complete duties, leading to stress) while making no allowance for how it is addressed.

Absenteeism is difficult to categorise as without knowledge of the cause, it could be a consequence of anything, and could indeed be exacerbated by the proposal. Prima facie a proposal that requires nurses to ‘do the same with less’ staff would not be conducive to reducing absenteeism.

The proposal does not describe how Barwon Health will provide a safe system of work to ensure that nursing staff are not exposed to stress and fatigue due to a decrease of nursing hours.

The introduction of equipment listed under OHS (lo-lo beds, hoists and bariatric equipment) is for staff and patient safety. These initiatives are only successful in minimising the OHS risk if there is adequate staffing to ensure that the process is completed correctly and that no breach of procedure occurs.

Barwon have identified that absenteeism has a negative impact in OHS (workload, resident support and adherence to processes) but have failed to detail as to how a reduction in nursing hours will not result in the same or perhaps exacerbate OHS shortfalls.

When there is a potential for OHS risk, an employer should undertake a ‘risk assessment’. As part of Barwon Health’s obligations under OHS law the ANMF presumes this has occurred and requests:

• A copy of the risk assessment/s



• Minutes of consultations with HSRs relating to the risk assessment



• Any measures considered to remove any identified risk

5. Nursing/Midwifery staff engagement

A considerable amount of information is provided by Barwon Health under the heading ‘staff engagement’. It would appear from the information provided that Barwon Health has confused ‘engagement’ with ‘consultation’.

Staff engagement in the context of Clause 42 relates to, for example, any impact on recruitment and retention of employees, staff satisfaction and the like.

Relevant parts of the proposal dealing with engagement include:

Arranging for employees to seek particular shifts for ‘personal circumstances where personal issues may have precluded them from attending the proposed shifts’

‘It will also provide improved professional and career opportunities, redistribution of weekend shifts or previously ‘set’ shifts across all staff, and collegiality’

‘Improve recruitment opportunities’

‘Promote staff retention and equity of access to rostered shifts’

‘Greater team morale and staff collegiality’

‘Provide opportunity for professional development and quality activities’

‘Potential inequity for staff rostered around set shifts’

‘Enrolled Nurses not having the opportunity to use their medication management Skills’

However each of the above is an assertion, without any evidence that the proposed change will positively impact on employees or resident care.

C. THE PROPOSAL HAS REGARD TO IRRELEVANT CONSIDERATIONS

‘An alignment with the state based ratios and skill mix provisions i.e. removal of the extra EN morning shifts on Saturdays & Sundays and the removal of the 6hr float shift on Monday to Friday morning shifts’

‘The implementation of the Aged Care Reforms and therefore the division is reviewing all aspects of residential aged care. The Living Longer Living Better national reforms are expected to include legislative, funding and practice changes’

‘Additional training and support for medicine administration by Enrolled Nurses which has led to a new scope of practice for individual Enrolled Nurses’

‘New electronic documentation system leading to a decreased documentation burden’

‘Systematic training for all nurses in computer literacy’

‘Additional study days, two per person, despite rostering across the 26 hour day’

‘Additional educational support on Resident Comprehensive Assessment and Dementia specific training for the elderly’

‘New Dose Administration Aid drug delivery system (pre-packaged sachet delivery system)’

‘Collaboration between pharmacists and aged care on medication review’

‘Commencement of a Residential In-reach Service with a Nurse Practitioner Candidate and Gerontologist to support the management of frail residents’

‘Review of the Allied Health resources and referral systems’

‘Increased non nursing employees (lifestyle officers) and resources’

‘Employment of a Pastoral Care Officer’

‘Implementation of best practice rostering principles and business rules to guide the roster preparation and management’

‘Develop consistent rosters across 24 hours per day, 7 days a week’

‘Improved flexibility to cover and plan for annual leave, long service leave and study leave’

‘Structured performance management, position descriptions and leave management’

‘Nurse Unit Managers to work 2 clinical shifts per calendar week’

‘No identified roster for the Graduate Nurses’

‘Graduate Nurses working Enrolled Nurse shifts across the facility’

‘At times the Nurse Unit Managers are not cognisant of clinical requirements for residents and not able to adequately represent resident needs and unit processes’

The ANMF is not asserting that these are not important, simply that they are not directly relevant to a Clause 42 proposal, and indeed to any reduction in hours.

D. THE PROPOSAL INCLUDES EFFECTS THAT WOULD BREACH EMPLOYEE CONTRACTS OF EMPLOYMENT

‘A single roster for each Lodge, taking into account of resident care needs’

‘Night duty staff to rotate to for an agreed period of time to enhance their opportunities for education and collegiality, along with an even distribution of rostered rotations for all staff and Associate Nurse Unit Manager positions’

Any affected nursing staff will be accommodated in the new roster where vacancies have occurred, thus meaning no loss of employment through this process.

The new rosters will require nurses to rotate through day, evening, and night shifts for an agreed period of time. You have been invited to submit an Expression of Interest to your NUM to outline your preferred contracted hours and any restrictions you may have regarding particular shifts / days.

The EBA sets out certain obligations on Barwon Health relevant to this issue, in particular:

1. Clause 37(c) On commencement of employment, each Employer shall provide each Employee with a letter of appointment containing the information set out in Appendix 1.

2. Appendix 1 - The letter of appointment will contain the following information:

a. The workplace/campus/location where the person is to be situated.

b. Fortnightly hours will be [insert] and for part timers (by mutual agreement) additional shifts may be added. Shifts will be worked in accordance with roster. Payment of additional shifts will not be at casual rates.

c. If you agree to work regular additional shifts your letter of appointment will be varied accordingly.

As a consequence of the above, Barwon Health nursing staff should have letters of appointment that set out information including the excerpts above. Some employees will have letters of appointment that contain more detailed information (e.g. days of the week, night shift) or alternatively will have answered advertisements that set out the shifts they were to work, and accepted employment on that basis.

The ANMF asserts that:

• deviations from those, in the absence of mutual agreement, are a breach of the employee’s contract with Barwon Health.



• Any proposal that includes breaches of employee contracts cannot be a proposal within the meaning of Clause 42.

E. THE PROPOSAL DOES NOT COMPLY WITH OTHER EBA REQUIREMENTS THAT CANNOT BE VARIED BY CLAUSE

Clause 42, and in particular Clause 42.3, note the items that may be varied under that provision
• not to utilise the full number of nursing hours on that ward or unit; or



• to increase the number of short shifts beyond the number referred to in clause 52.4 of the EBA.




‘A single roster for each Lodge, taking account of resident care needs’

‘There is no change to physical environment in this instance’

‘Night duty staff to rotate to for an agreed period of time to enhance their opportunities for education and collegiality, along with an even distribution of rostered rotations for all staff and Associate Nurse Unit Manager positions’

‘Associate Nurse Unit Managers working in Registered Nurse shifts’

‘Registered Nurses working in Associate Nurse Unit Managers shifts’

‘An imbalance of Associate Nurse Unit Managers rostered between operational units’

The existing concerns briefly outlined above in the Barwon Health proposal appear to be as a consequence of existing non-compliance with the EBA.

The above indicate an intention to deviate from the following obligations which are not amendable to such deviation under Clause 42.

1. Clause 43.1 requires one EFT Nurse Unit Manager (NUM) appointed in each ward/unit of each campus/facility of each hospital/network;

2. Clause 43.2 requires ANUMs to be appointed to undertake in-charge functions during the off duty periods of the NUM. Sub-clause (c) requires all 24 hours a day, seven days per week areas, to appoint five EFT ANUM shift positions of which four out of the five must be permanently appointed. The 5th EFT of ANUM may be permanently appointed to, or may be utilised to provide non-appointed nurses which experience as an ANUM.

Our reading of the proposed roster suggests that the two units that make up each facility are to be treated as one for rostering purposes, and for appointment of a NUM and ANUMs contrary to the above obligation and in direct breach of the EBA.

The ANMF notes a separate obligation to have a Registered Nurse classified at Grade 5 appointed to be in charge of each campus in all off duty periods of the DON.

CONCLUSION

For the reasons detailed above (and we reserve the right to raise other issues) the ANMF does not accept that this is a proposal as required by Clause 42, and is not a proposal under Clause 42 as it breaches the obligation under Clause 42.

We will discuss this further at the report back before His Honour DP Hamilton at FWC on Wednesday 2 October 2013.” 19

(q) 9 October 2013 proposal

[28] On 9 October 2013, Barwon Health provided a yet further revised proposal to the ANMF aimed at taking into account matters raised by the ANMF. The 9 October 2013 proposal is as follows:

“REVISED CLAUSE 42 CHANGE PROPOSAL AND ANMF QUERIES RESPONSE

BARWON HEALTH

ORGANISATIONAL

CHANGE:

Modification of nursing rosters to meet changing business and service requirements

DEPARTMENT/UNIT:

McKellar Centre High Level Care

DATE:

9 October 2013

1. ORGANISATIONAL DECISION

In 2006 a local area agreement was reached with ANMF due to the level of change that was occurring across the Aged Care Program. This change involved:

• amalgamation of several homes into two newly built centralised facilities (108 beds per facilities);

• new computerised documentation system;

• new equipment;

• newly formed nursing teams and work practices; and

• commissioning of the new capital infrastructure.

At the time it was agreed that the additional staffing levels were required to ensure a smooth transition to the new homes. Over the past six years since the residents and staff moved into the new facilities a range of service developments have occurred within the Aged Care Division.

Today, Barwon Health are preparing for the implementation of the Aged Care Reforms and therefore the division is reviewing all aspects of residential aged care. The Living Longer Living Better national reforms are expected to include legislative, funding and practice changes, and these will be coupled with changing consumer and community expectations.

In regards to these expectations, Barwon Health have implemented a number of key initiatives since 2006 to improve resident care and quality of their stay, and assistance to nursing staff.

As such, given the improvement initiatives have been fully embedded within both Wallace Lodge and Allan David Lodge, Barwon Health proposes that the “above ratio” nursing hours be reduced by 324 hours across both facilities per week to meet current EBA ratio nursing hours, and redistribution of the current roster patterns to provide a better balance of skill mix across all shifts, and alignment with the state based ratios to provide greater continuity of nursing practice.

Response to ANMF re: Background

The ANMF have stated in their correspondence of 1 October 2013 that the above ratio hours were “not at any time regarded as transitional” (Page 1 – ANMF response).

The debate around transitional or otherwise is not a factor in these considerations, given that the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (the EA) provides for ‘nursing resources should be used effectively and efficiently, recognising that nursing workload impacts on quality patient care and profoundly affects nurses’ work and performance’ (Cl. 42.1(a)) and ‘when considering a deviation from the minimum nurse to patient ratios as provided for under these clauses, the primary considerations will be the impact on patient care’ (Cl. 42.1(b)). Where there is a deviation from the current roster, Barwon Health is not seeking to deviate from the ratios specified in the EA.

As such, changes to the EA can be determined at any time under these clauses, of which Barwon Health has chosen to initiate.

2. RATIONALE/INTENDED BENEFITS TO PROPOSED CHANGE

Following a review of current rostering practices a number of clinical and operational service risks were identified as a direct result of the imbalances in the skill mix in the operational units including:

a. Associate Nurse Unit Managers working in Registered Nurse shifts

b. Registered Nurses working in Associate Nurse Unit Managers shifts

c. An imbalance of Associate Nurse Unit Managers rostered between operational units

d. No identified roster for the Graduate Nurses

e. Graduate Nurses working Enrolled Nurse shifts across the facility

f. Potential inequity for staff rostered around set shifts

g. Enrolled Nurses not having the opportunity to use their medication management skills

h. At times the Nurse Unit Managers are not cognisant of clinical requirements for residents and not able to adequately represent resident needs and unit processes

The intended benefits of the proposed roster modifications include:

a. Balance skill mix across all shifts and across the facilities

b. Ensure maintenance of EBA ratio levels within each facility

c. Improve continuity of care and reduce clinical risk

d. Improve recruitment opportunities

e. Promote staff retention and equity of access to rostered shifts

f. Greater team morale and staff collegiality

g. Provide opportunity for professional development and quality activities

Response to ANMF page 2 re: Proposal not meeting Primary Purpose

The ANMF state that the proposal does not meet the stated primary purpose of Cl. 42.1(b) being that the primary considerations will be the impact on patient care (page 2 – ANMF response). Instead the ANMF propositions ‘that the primary consideration is cost savings’.

Barwon Health does not argue that one of the outcomes of these changes may resolve some cost overrun issues within the facilities.

Although, as exhibited clearly above Section 2, and further within this proposal at later stages, Barwon Health maintains that our resident care and quality of life, plus the quality of employment for our nursing staff are the fundamental principals within these changes.

3. NATURE OF THE CHANGES

The proposed changes to the current rosters include:

a) A reduction of 324 hours (across both facilities) per week in above ratio nursing hours

b) An alignment with the state based ratios and skill mix provisions i.e. removal of the extra EN morning shifts on Saturdays & Sundays and the removal of the 6hr float shift on Monday to Friday morning shifts

c) A single roster for each Lodge, taking account of the resident care needs

d) Implementation of best practice rostering principles and business rules to guide the roster preparation and management

e) Develop consistent rosters across 24 hours per day, 7 days a week

f) Night duty staff to rotate to for an agreed period of time to enhance their opportunities for education and collegiality, along with an even distribution of rostered rotations for all staff and Associate Nurse Unit Manager positions

g) Improved flexibility to cover and plan for annual leave, long service leave and study leave

h) Structured performance management, position descriptions and leave management

i) Nurse Unit Managers to work 2 clinical shifts per calendar week

The current and proposed rosters can be found at Appendices A & B

Response to ANMF re: Not Complying with other EBA provisions

The ANMF (page 11 - ANMF response Section E) state that the changes proposed do not comply with the provisions of the EA. Barwon Health is fully aware of the requirements under the EA.

The ANMF state ‘The above indicate an intention to deviate from the following obligations...under Clause 42.’

In response to these concerns, Barwon Health assures the ANMF that there is no intention to deviate from the agreed obligations. In particular, the ANMF have raised concerns being ‘Our reading of the proposed roster suggests that the two units that make up the facility are to be treated as one for rostering purposes...’

This is not the case, and each facility will have two separate ends, staffed on the requirements of the EBA (ie two FTE NUM’s, etc).

The confusion re this matter may have been the presentation in the rosters as ‘one’ although the hours clearly show the FTE requirements of the EBA are met.

4. CLAUSE 42 CONSIDERATIONS

Residents in residential aged care usually present as having significant multimorbitities which are complex and heterogeneous. Monitoring clinical indicators that are targeted at single indicators may result in care that is fragmented and poorly co-ordinated and produce care plans that are inefficient, ineffective or even harmful.

The ANMF in their correspondence of 1 October 2013 ascertains that the relevant ‘nursing sensitive indicators’ be based on the measures as reported and monitored by the Australian Commission on Safety and Quality in Healthcare (page 1).

From this statement, it is evident the ANMF do not fully comprehend the requirements within an Aged Care Setting, as these indicators are not relevant within the Aged Care environment. In particular:

1. Aged Care Facilities fall under the requirements of the Aged Care Act 1997 (Cth), and are specifically required to be accredited under this Act.

2. The Accreditation Standards are detailed in the Quality of Care Principles 1997.

There are four standards:

Standard one: Management systems, staffing and organisational development

Standard two: Health and personal care

Standard three: Resident lifestyle

Standard four: Physical environment and safe systems

Each standard consists of a principle and a number of expected outcomes. Standard one has an ‘intention’ which indicates it acts as the umbrella for the other three Standards.

There are 44 expected outcomes across the four Standards. Homes must comply with all 44 expected outcomes at all times.

As such, and as previously advised, the proposal seeks to address the requirements of an Aged Care setting, as opposed to an Acute based setting. Barwon Health like other public sector residential high care have passed accreditation based upon the Aged Care Act

4.1 RESIDENT (PATIENT) PROFILE – Cl.42.1(c)(i)

This clause has a set of indicators of patient profiles e.g. patient case mix, age of patient, complexity, length of stay and throughput, etc which are appropriate to an acute care setting.

As residential aged care units, there is general consistency regarding factors such as case mix, age, complexity and length of stay. The throughput considerations referred to in the Agreement are not relevant.

The proposed changes to the roster are intended to create a skill mix appropriate to the resident profile. We do not believe the current roster does this.

Response to ANMF re: Resident Profile

Acute care hospitals are not good environments for the management of care for older people; indeed older people are more likely to experience adverse events, functional decline, increased confusion, and delirium without being adequately diagnosed and treated (Edvardsson & Nay, 2010). Hospitals are structured and organised to address acute situations and then patients are discharged to their home with or without home based support.

It appears however that the ANMF case relies on understanding of hospitals rather than long term care environments.

For a person to be assessed as eligible for admission into a Nursing Home, an assessment by the Aged Care Assessment Team needs to occur. The Aged Care Assessment Service (ACAS) helps the elderly and their carers determine what kind of care will best meet their long term needs when they are no longer able to manage in their home.

The Aged Care Assessment team cannot assess a person as eligible for admission to a nursing home unless the person is medically stable. i.e. not undergoing treatment for any acute illness, or any other reversible conditions, which may alter their level of care.

The person must also be functionally stable, and if not it may be recommended that they undertake rehabilitation in the first instance.

There are no emergency admissions of residents to Nursing Homes; nor transfers from critical areas to the Nursing Homes.

On the contrary, the transfer of residents to Geelong Hospital from Barwon Health Nursing Home occurs when a resident exhibits acute symptoms requiring acute assessment and/or treatment. In Aged Care residents receive their medical care from a General Practitioner whose aim is to promote health and to prevent and reduce the loss of function from illness, injury and disability.

Nursing, in Residential Aged Care Facilities is concerned with chronic, complex conditions, disabilities and increasingly a palliative approach to care. When a resident is admitted to a nursing home, staff engage the resident in a, a well-developed, systematic pathway of assessments to identify their clinical and lifestyle needs.

That is, there is a focus on lifestyle, social engagement and a comfortable environment to support residents in maximising choice and participation in the community.

There is little evidence to date to base staffing levels upon in aged care (Castle 2008). Flexibility and a diverse skills mix will take account of resident mix/needs (which vary over time), the building design, the qualifications, scope of practice and experience of staff, access to experts, career support for staff, family involvement and other contextual factors.

In 2010 the Department of Health, Aged Care Branch, recommended a set of principles to reflect contemporary practice, improve quality outcomes for residents and increase staff satisfaction in residential aged care. Barwon Health has used this guide in revising the rosters.

An Australian study was designed and published to identify which staffing models are associated with the best resident and staff outcomes. The conclusions of this study were that it should be regarded with caution and there is little clear evidence for the effective use of any specific model of care in residential aged care to benefit either residents or care staff. They argue for more research in this area is clearly needed. Hodgkinson, Brent, Haesler, Emily J., Nay, Rhonda, O’Donnell, Megan H. and McAuliffe, Linda P. (2011) Effectiveness of staffing models in residential, subacute, extended aged care settings on patient and staff outcomes. Cochrane Database of Systematic Reviews, 6:CD006563.1-CD006563.27.

While the clinical profile of residents is not that of patients in an acute hospital, the profile is, however, complex. The complexity of resident needs is managed through a well-developed and consultative process of assessment, care planning, evaluation and adjustments to care plans. To further assist residents in avoiding acute conditions, the Aged Care Program has invested in developing the role of a Nurse Practitioner. The Nurse Practitioner (Candidate) works with nursing staff to reduce resident deterioration, deconditioning and functional decline.

As indicated, and as determined by an Aged Care Assessment Service, Nursing Homes are an appropriate environment for residents with high care and complex needs who are unable or choose not to stay in their own homes. In accordance, Barwon Health (like other public health agencies) does provide care in Nursing Homes which meets the clinical and lifestyle needs for adult residents of all ages with conditions such as:

• Acquired Brain Injury

• Bariatric conditions

• Cerebral palsy

• Chronic and disabling disease

• Complex wounds

• Congenital defects

• Dementia

• Downs syndrome

• Late stage palliation

• Multiple Sclerosis

• Quadriplegia

• Tracheostomy

With regard to resident profile as indicated above, staff are provided with planned education regarding care and appropriate use of equipment, prior to and on admission of a resident with complex needs.

The purpose of the proposed change is to implement a roster that properly takes a resident profile into account.

4.2 CAPACITY OF NURSING STAFF TO COMPLETE THEIR DUTIES WITHIN EXISTING WORK HOURS - Cl. 42.1(c)(ii)

[77] With respect to occupational health and safety (OH&S) considerations such as physical environment and staff safety, the 9 October 2013 proposal points to the proposed staffing levels being no less than those agreed for other aged care facilities covered by the Agreement and, therefore, prima face meeting OH&S requirements. It also considers that Barwon Health’s ongoing investment in equipment to support and aid nursing staff in their work environment at WL and ADL and the OH&S systems and committees that cover WL and ADL will deal with OH&S considerations associated with the proposal. 44

[78] The 9 October 2013 proposal provides for nursing staff engagement through, amongst other things, one on one sessions of affected employees with facility managers and a Workforce Partnership representative, nursing staff involvement in the “How We Work” committees covering WL and ADL, and the Employee Assistance Program. 45

[79] In our view, it was not necessary for the 9 October 2013 proposal to further address clauses 42.1(b) and 42.1(c) by reference to the separate wards or units of WL and ADL. This is because it sets out the current rosters in the separate wards and units at WL and ADL and the proposed rosters, and goes on to separately identify the changes. 46 In addition it clearly indicates that the two units making up each of WL and ADL are not to be treated as one for rostering purposes, and each of WL and ADL will have two separate ends which are staffed on the requirements of the Agreement.47

[80] In those circumstances we do not think the Vice President can be regarded as having erred in not separately dealing with the ANMF’s submission that the 9 October 2013 EIS is not a proposal conformable with clause 42 in that it does not address the considerations contained in clauses 42.1(c) by reference to the separate wards or units of each of WL and ADL.

[81] In respect of good faith consultation, and in addressing the third question posed by him, the Vice President says and determines as follows:

“[31] The sole question that the parties have empowered the Commission to determine in relation to a dispute over the application of clause 42 of the Agreement is whether good faith consultation has occurred, having regard to the considerations in clauses 42.1(b) and 42.1(c).

[32] In my view, the nature of good faith consultation first requires the proposed changes to be clear, so that all concerned know and understand what is proposed. This will usually be achieved by clear initial communications and a responsive approach to requests for further clarification or information relevant to the proposal. For the purposes of clause 42, it also requires the considerations in clause 42.1(c) to be addressed in the proposal.

[33] Secondly there must be an opportunity given to affected employees and their representatives to discuss and make representations in relation to the proposals. Thirdly, there must be a consideration of the matters raised on behalf of affected employees. Consultation is not a perfunctory process. It must be a genuine attempt to communicate intentions and consider concerns. Equally it is not a joint decision-making process or a negative or frustrating barrier to the prerogative of management to make decisions.

[34] I have considered each of these requirements against the evidence led in this matter. Barwon Health commenced its communication to employees in February 2013. Over a period of several months, it has met with employee representatives, produced a number of revised documents, provided additional information in response to requests from the ANMF and participated in conciliation proceedings before the Commission. The terms of the 9 October proposal are detailed. I reject the contention of the ANMF that it contains insufficient detail. It expressly deals with the nature of the changes, the rationale and the clause 42.1(c) factors. I also reject the contention that the 9 October proposal is not honest and open. It deals with issues of patient care because it is required to do so. Its rationale can be a different matter and it clearly is in this case. I do not consider that any of these circumstances demonstrate a lack of good faith in Barwon Health’s approach to the provision of information for the purposes of consultation. In my view Barwon Health has clearly met the first requirement of good faith consultation.

[35] It is also clear in my view that in participating in meetings with the ANMF and discussing its proposals with them, including by way of conciliation before the Commission, Barwon Health has complied with the second requirement of good faith consultation.

[36] The ANMF contends that the primary budgetary motivation also means that no consultation has occurred. There has been no impediment on the ANMF bringing forward whatever concerns it has had with the proposals. The evidence has not disclosed any refusal to consider matters that have been raised. In my view the third requirement for good faith consultation has been met. The answer to the third question is “Yes”.

Conclusions

[37] For the above reasons I consider that in proposing a reduction in nursing hours Barwon Health is required to comply with the clause 42 of the Agreement. In my view its 9 October proposal, developed from consultation with the ANMF and conciliation in the Commission, is a proposal that complies with the requirements of clause 42. I further conclude that Barwon health has addressed the factors in clause 42 and has engaged in good faith consultation in relation to its proposal.” 48 (Endnotes omitted.)

[82] In doing so the Vice President effectively considers that consultation in good faith has occurred having regard to the considerations in clauses 42.1(b) and 42.1(c) of the Agreement in respect of the 9 October proposal, being Barwon Health’s proposal to reduce nursing hours at WL and ADL.

[83] Again, on this aspect, we think the Vice President was right.

[84] The ANMF’s contention that consultation in good faith had not occurred having regard to the considerations in clauses 42.1(b) and 42.1(c) was further based on there being insufficient detail in the 9 October 2013 proposal and on what it said was Barwon Health’s lack of openness as to its primary motivation, being budgetary considerations, for the 9 October 2013 proposal.

[85] In support of its insufficient detail basis, the ANMF referred to the evidence of several witnesses. This evidence was follows:

(a) Ms Leanne Thomas, a Registered Nurse Division 1 at ADL, who said the following in her witness statement or under cross-examination:

• “Barwon Health have subsequently circulated another document relating to the staffing reductions and changes proposed which seems to seek to justify the changes. However, there has not been any attempt by management in the documents or in discussions to deal with the real and practical effect of the staffing changes on the daily routine and care provided to our residents, or on staff themselves.”  49

• “In terms of situation - and I’m only talking about your own personal situation here - you were consulted in terms of the proposed changes?--- We were told that a six-hour shift would be removed. We weren’t told how that was going to impact on ourselves, our workload and our residents.”  50

• “In terms of where you say in the middle of paragraph 8, ‘The proposal has caused significant distress to the nursing staff at Alan David Lodge,’ it’s correct, is it not, to say that there has been considerable consultation between staff members and management over this new roster? --- No. Regarding our days of work and the hours we work, yes. But not how we’re going to implement it.”  51

(b) Ms Heather Furness, an enrolled nurse at ADL, who said in her witness statement that:

• “In my experience at Alan David Lodge it is inevitable that the changes in ratios outlined will negatively impact on both residents and nursing staff.”  52

(c) Ms Bronwyn Patrick, a Registered Nurse Division 1 at ADL, who said in her witness statement that:

• “Under the Barwon Health proposal the NUM will be rostered for 3 management days and 2 clinical shift days. This means that on the 2 days when the NUM is rostered a clinical shift she will be allocated and responsible for the care and supervision of a number of residents, along with the direct supervision of other Registered Nurses and Enrolled Nurses. Neither the Barwon Health documentation about the reduction in ratios and staffing nor any discussions about them have dealt with the inevitable impact of these changes, and in particular the 2 clinical shifts for the NUM, on the quality of resident care or on staff.”  53

(d) Ms Judy McMahon, an Acting Nurse Unit Manager at WL, who said the following in her witness statement or in examination-in-chief:

• “The documentation in respect of the changes provided by Barwon Health does not deal with what I see as the inevitable impact of the changes on resident care and nursing workloads. Accordingly it has not been possible to have real discussion with management about the changes. The documentation seems to have avoided the major issue for nurses, namely the impact of the changes on the quality of resident care.”  54

• “Can I ask you to read paragraph 6 of Ms Patrick’s statement? --- ‘Under Barwon Health’s proposal, the - - -
Do you agree with what Ms Patrick says in paragraph 6? --- Yes, I do.”  55

[86] We are not persuaded by the further bases advanced by the ANMF for considering that consultation in good faith has not occurred having regard to the considerations in clauses 42.1(b) and 42.1(c) in respect of the 9 October 2013 proposal.

[87] We have already indicated that, in our view, the 9 October 2013 proposal was sufficiently detailed to meet the requirements of clause 42.3 of the Agreement. As such, we consider Barwon Health’s provision of the 9 October 2013 proposal was sufficient to commence the up to one month period of consultation provided for in clause 42.3(b)(ii) of the Agreement, and met at least the initial requirements for the “consultation in good faith” provided for in clause 42.5 of the Agreement.

[88] Given the actions leading up to the 9 October 2013 proposal, the budgetary motivation behind it should have been well known to those affected. There was no requirement in clause 42 for the 9 October 2013 proposal to adequately address the budgetary motivation or budgetary matters. We also think the 9 October 2013 proposal adequately addresses the matters raised in the evidence referred to by the ANMF in support of its insufficient detail basis.

[89] In the circumstances, we consider consultation in good faith has occurred having regard to the considerations in clauses 42.1(b) and 42.1(c) in respect of Barwon Health’s proposal to reduce nursing hours at WL and ADL as set out in the 9 October 2013 proposal.

[90] With respect to the adequacy of the Vice President’s reasons for decision, the ANMF referred to Pollard v RRR Corporation Pty Ltd. 56 In Pollard, McColl JA, with whom Ipp JA and Bryson AJA agreed, said:

“Obligation to give reasons

56 The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge’s reasons must, ‘as a minimum…be adequate for the exercise of a facility of appeal’: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 – 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’: Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713).

57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA.

58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.

59 The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘“enter into” the issues canvassed and explain why one case is preferred over another’; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.

60 Various observations have been made about the extent to which reasons should deal with the evidence. None is exhaustive; the test of adequacy, as I have earlier said, is relative. It is sufficient for the purposes of this case, to note the following.

61 The general proposition was stated by Samuels JA in Mifsud (at 728):

‘…[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only “disappointed” but “disturbed” – to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634.’

In similar vein, Gray J (with whom Fullagar and Tadgell JJ agreed) has said ‘[t]o have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant’: Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (at 18).

62 In Beale (at 443) Meagher JA referred to the requirement that a judge should refer to evidence which is important or critical to the proper determination of the matter as the first of the three fundamental elements of a statement of reasons. While his Honour explained that it was unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, he added that where such evidence was not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it, referring to North Sydney Council v Ligon 302; see also TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ (Mason P and Grove J agreeing). Meagher JA added that ‘[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.’

63 Where, as in the present case, there is documentary material arguably supporting a party’s case, that material must be considered in the judge's reasons in a satisfactory way: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [94]) per Kirby J.

64 Bald conclusionary statements should be eschewed. As Ipp JA said in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]):

‘28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: “I believe Mr X but not Mr Y and judgment follows accordingly”. That is not the way in which our legal system operates.’

65 Finally, where credit issues are involved it is necessary to explain why one witness’s evidence is preferred to another’s. ‘[B]ald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision’: Palmer v Clarke (1989) 19 NSWLR 158 (at 170) per Kirby P (Samuels JA agreeing).

66 Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA57; (2005) 79 ALJR 1816 (at [130] – [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).

67 Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale (at 444) per Meagher JA applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported). In the latter case where the trial judge accepted the respondent's version of what occurred, Sheller JA (with whom Handley JA agreed) said, ‘[i]f there had been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell would suggest that a new trial must follow’: Mesiti (BC9403342 at 9); see also Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 (at 284). In some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge: see Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 (at [37]) per Nettle JA.”

[91] Whilst some aspects of his Honour’s reasons for decision were short, we think the reasons for decision were adequate. Further, as we have indicated, we concur with the Vice President’s determination that consultation in good faith has occurred having regard to the considerations in clauses 42.1(b) and 42.1(c) of the Agreement in respect of the 9 October 2013 proposal, being Barwon Health’s proposal to reduce nursing hours at WL and ADL.

[92] In our view, no appealable error in his Honour’s decision has been established.

Conclusion

[93] We are not persuaded we should grant leave to appeal in this matter. For the reasons we have given in considering the grounds of appeal, we are not satisfied the Vice President’s decision was affected by appealable error. Nor are we satisfied it is in the public interest for us to grant leave to appeal.

[94] In respect of us granting permission to appeal, the ANMF submitted that:

“49. It is in the public interest that permission to appeal be granted in that the decision contains jurisdictional error, the failure to consider and determine the case advanced by the Appellant involves a substantial injustice to the Appellant and its members, the subject matter of the appeal concerns an important provision of the Agreement applicable to the entire Victorian Public Sector Nursing workforce and their employers, the determination is the first arbitral consideration by the Fair Work Commission as to necessary steps for compliance with clause 42 and it is in the public interest that permission to appeal be granted so as to secure and maintain confidence in the processes of the Fair Work Commission and the proper exercise of its jurisdiction.” 57

[95] Their public interest considerations are essentially premised on the Vice President’s decision having been affected by appealable error. We have already indicated we are not satisfied the decision was affected by appealable error. To the extent they raise the wide application of an important provision of the Agreement, and confidence in its arbitral consideration, we have also indicated we concur with his Honour’s decision.

[96] Not being satisfied there is any proper basis upon which to grant leave to appeal, we refuse leave to appeal and, to the extent necessary, dismiss the appeal. An order 58 to that effect is being issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

E. White of Counsel for the Australian Nursing and Midwifery Federation.

G. McKeown of Counsel for Barwon Health.

Hearing details:

2014.

Melbourne:

April 15.

Final written submissions:

Australian Nursing and Midwifery Federation: 19 June and 1 July 2014.

Barwon Health: 26 June 2014

 1   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811.

 2   AE895073.
 
3   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811 at [36] and [37].
 
4   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811 at [3].
 
5   Appeal Book at p.548.
 
6   Appeal Book at p.573.
 7   Appeal Book at pp.573-574.
 
8   Appeal Book at p.581 -582.
 9   Appeal Book at pp.345-348.
 
10   Appeal Book at p.587.
 11   Appeal Book at pp.610-611.
 
12   Appeal Book at p.629.
 13   Appeal Book at pp.659-661.
 14   Appeal Book at pp.687-694.
 15   Appeal Book at pp.696-697.
 
16   Appeal Book at p.700.
 17   Appeal Book at pp.705-767.
 18   Appeal Book at p.707.
 
19   Appeal Book at pp.811-822.
 20   Appeal Book at pp.827-849.
 21   Appeal Book at pp.850-852.
 22   Appeal Book at p.852.
 23   Appeal Book at pp.853-856.
 
24   Appeal Book at pp.858-861.
 
25   Appeal Book at p.863.
 
26   Appeal Book at p.865.
 
27   Appeal Book at pp.867-869.
 
28   Appeal Book at pp.873-874.
 
29   Appeal Book at pp.876-878.
 30   Appeal Book at pp. 881-883.
 
31   Appeal Book at pp.885-886.
 32   Appeal Book at pp.888-889.
 33   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811.
 
34   Ibid.
 35   Ibid.
 
36   Appeal Book at p.965. See also appeal exhibit W1 at paragraph 17(a).
 
37   Appeal Book at p.966. See also appeal exhibit W1 at paragraphs 17(b) and 26.
 
38   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811 at [34].
 
39   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811 at [37].
 
40   Appeal Book at pp.827-830.
 41   Appeal Book at pp.831-833.
 42   Appeal Book at pp.833-835.
 
43   Appeal Book at pp.835-837.
 
44   Appeal Book at pp.839-840.
 45   Appeal Book at pp.840-841.
 46   Appeal Book at pp.843-849.
 47   Appeal Book at p.830.
 
48   Australian Nursing and Midwifery Federation v Barwon Health, [2014] FWC 811.
 
49   Appeal Book at p.490.
 50   Appeal Book at p.105.
 
51   Appeal Book at p.108.
 
52   Appeal Book at p.495.
 
53   Appeal Book at p.501.
 
54   Appeal Book at p.499.
 55   Appeal Book at p.120.
 56   [2009] NSWCA 110.
 
57   Appeal exhibit W1.
 
58   Australian Nursing and Midwifery Federation v Barwon Health, PR552782.

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