Australian Nursing and Midwifery Federation v Barwon Health

[2014] FWCFB 3868

[2014] FWCFB 3868

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Nursing and Midwifery Federation
v
Barwon Health
(C2014/3061)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SMITH
COMMISSIONER LEE MELBOURNE, 11 JUNE 2014

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

[1] This statement calls for further submissions in respect of the appeal made by the Australian Nursing and Midwifery Federation (ANMF) against 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] In the decision, his Honour said:

“[25] The ANMF contends that the proposal of 9 October 2013 does not conform with sub-clause 42.1(b) or 42.3(b) and therefore no proposal has been made for the purposes of triggering consultation required by clause 42. It contends that the evidence establishes that the proposals are generated because of the budgetary benefits of reducing staff and this does not conform with the requirement in sub-clause 42.1(b) that the primary considerations will be the impact on quality of patient care...

[28] Nor, in my view, does the evidence establish that the intent of those who were involved in the negotiation of the agreement was to limit the rationale of changes as distinct from identifying the factors that are to be taken into account in its evaluation. Indeed the evidence of Paul Gilbert suggests that the intention of clause 42 was that changes needed to be considered against a set of recognised nurse sensitive indicators as an acceptable test of whether proposals would have an impact on patient care when implemented. This suggests that sub-clauses 42.1(b) and (c) must be read together and bear upon the nature of evaluation rather than the permissible motivations for a change. In my view the interpretation contended for by the ANMF must be rejected. The answer to this question must be ‘Yes’.” (Underlining added)

[3] In his witness statement of 1 March 2013, which was before the Vice President, Mr Gilbert said:

“24. The proposed clause was designed to require that any proposed deviation from nurse-to-patient ratios be tested against a set of recognised nurse sensitive indicators, to ensure that the proposed change would not have an adverse impact on patient care when implemented. Other indicators included staff satisfaction, workload and occupational health and safety.” (Appeal Book at p.234)

[4] In written submissions in the appeal, Barwon Health said the following in respect of clause 42 of the Agreement:

“28. Importantly, his Honour was of the view clauses 42.1(b) and 42.1(c) could not be read together. It was open to his Honour to form such a view on the wording of the clauses in question. Clause 42.1(b) begins, ‘When considering a deviation...’ (emphasis added). This is in contrast to the opening words of Clause 42.1(c), ‘The following considerations, where relevant, that must be addressed in any proposal to reduce...’ (emphasis added). The wording in clause 42.1(b) is such that it applies to any consideration of a deviation and prior to any decision. In contrast, clause 42.1(c)operates post decision as it refers to what must be included in a proposal for change.” (Appeal exhibit M1, underlining added)

[5] The Full Bench in the appeal seeks submissions from the ANMF and Barwon Health as to:

(a) whether clauses 42.1(b) and 42.1(c) of the Agreement should be read together; and

(b) whether clauses 42.1(b) and 42.1(c) have no role outside of clauses 42.2 to 42.5 of the Agreement, with clauses 42.2 to 42.5 setting out what is required in respect of clauses 42.1(b) and 42.1(c).

[6] In its submissions Barwon Health may wish to elaborate on the basis for their submission that “his Honour was of the view clauses 42.1(b) and 42.1(c) could not be read together.”

[7] The ANMF submissions on the above matters should be filed in the Fair Work Commission (FWC), and served on Barwon Health, by 19 June 2014.

[8] The Barwon Health submissions on the above matters should be filed in the FWC, and served on the ANMF, by 26 June 2014.

[9] Any submissions by the ANMF in reply should be filed in the FWC, and served on Barwon Health, by 1 July 2014.

[10] The Full Bench proposes to deal with the appeal having regard to all of the submissions before it.

SENIOR DEPUTY PRESIDENT

 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].

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