Australian Nursing and Midwifery Federation v Barwon Health
[2022] FWC 2490
•19 SEPTEMBER 2022
| [2022] FWC 2490 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Application to deal with a dispute
Australian Nursing and Midwifery Federation
v
Barwon Health
(C2022/4111)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 19 SEPTEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES [s186(6)]
The Australian Nursing and Midwifery Federation (ANMF) and Barwon Health are in dispute about the appropriate rate of pay that must be paid to Karen Hewitt, a Registered Nurse employed by Barwon Health, pursuant to the Victorian Public Mental Health Services Enterprise Agreement 2020-2024 (Agreement). The ANMF applied to the Commission for it to deal with a dispute in accordance with the dispute settlement procedure of the Agreement. The parties have agreed to accept my recommendation as the settlement of the dispute and that my recommendation would respond to the following question – Does clause 111.1(b) [of the Agreement] obligate [Barwon Health] to remunerate [Ms Hewitt] at the ‘RPN2 Advanced’ rate?
The factual circumstances in which the dispute arose are not in dispute. Ms Hewitt was appointed to the classification of Psychiatric Enrolled Nurse Level 3 (PEN3) by Barwon Health in 2014. Ms Hewitt resigned from her employment with Barwon Health on 11 January 2021 and commenced employment with Melbourne Health at the Centre of Mental Health Learning as a Psychiatric Enrolled Nurse Level 4 (Educator) (PEN4). On 7 February 2022, Ms Hewitt commenced employment with Barwon Health as a Registered Nurse in its Graduate Nurse Program. Ms Hewitt was classified and paid by Barwon Health as a Registered Psychiatric Nurse Grade 2 Year 5 (RPN Grade 2 Year 5). At that time, the Victorian Public Mental Health Services Agreement 2016-2020 (2016 Agreement) applied to Ms Hewitt’s employment. Clause 95.1 of the 2016 Agreement relevantly provided that:
A newly registered nurse shall commence at RPN 2 Year 1 except in the following circumstance:
. . .
(b) was previously an enrolled nurse who completed an undergraduate course leading to registration as a Registered Nurse, in which case the Employee will commence at the RPN 2 increment immediately above the rate of pay previously applicable to the Employee when employed as an RPN.
The reference to “RPN” where last appearing in the extracted paragraph (b) above plainly appears to be a typographical error and should be read as a reference to PEN.
At the time Ms Hewitt commenced employment as an RPN with Barwon Health:
· the weekly rate of pay under the 2016 Agreement for an RPN Grade 2 Year 5 was less than that for a PEN4;
· the PEN4 classification was one available on appointment. The highest PEN classification in the incremental structure was PEN3 Year 4;
· the weekly rate of pay for a PEN3 Year 4 was less than that for an RPN Grade 2 Year 5;
· the 2016 Agreement contained an RPN Grade 2 incremental structure which transitioned from 10 increments (years 1 to 10) when the 2016 Agreement commenced operation, to eight increments (years 1 to 8) by the time Ms Hewitt commenced employment as an RPN;
· the 2016 Agreement contained an RPN Grade 2 Advanced classification, appointment to which was through an application, assessment and reclassification process, rather than automatic progression through an incremental structure;
· neither of the weekly rates of pay for an RPN Grade 2 Year 8 (the highest rates in the RPN Grade 2 incremental structure) nor for an RPN Grade 2 Advanced where higher that the weekly rate of pay for the PEN4 classification.
These circumstances continued under the Agreement with clause 111.1 replicating (save for the typographical error) clause 95.1 of the 2016 Agreement and the relevant Agreement weekly rates of pay (from 1 July 2022) providing for the following:
Classification Weekly rate of pay PEN Level 3 Year 4 $1,487.80 PEN Level 4 (Educator) $1,853.10 RPN Grade 2 Year 5 $1,554.60 RPN Grade 2 Year 8 $1,780.80 RPN Grade 2 Advanced $1,853.10
The answer to the question posed by the parties turns on the proper construction of clause 111.1(b) of the Agreement. The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the agreement remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.
Clause 111.1 of the Agreement provides:
A newly registered nurse shall commence at RPN 2 Year 1 except in the following circumstance:
(a) where an Employee has completed either:
(i) An undergraduate nurse training program with a major in mental health, an undergraduate psychiatric nurse training program in which case the Employee shall commence at RPN 2 Year 2, or
(ii) A post graduate diploma in psychiatric and/or mental health nursing in which case an Employee shall commence at RPN 2 Year 3, or
(b)was previously an enrolled nurse who completed an undergraduate course leading to registration as a Registered Nurse, in which case the Employee will commence at the RPN 2 increment immediately above the rate of pay previously applicable to the Employee when employed as an PEN.
Several observations may be made about the construction and effect of clause 111.1 of the Agreement when read in the context of the Agreement as a whole.
First, the clause operates as an exception. The general rule is that a “newly registered nurse” will commence at the RPN 2 Year 1 classification and increment. The general rule is departed from in three discrete circumstances, each of which result in the “newly registered nurse” obtaining incremental acceleration at commencement through the RPN 2 classification.
Secondly, the exception is self-evidently engaged when a newly registered nurse commences employment as such. It is a one-off acceleration which is given at the time of commencement. Ms Hewitt commenced employment as a “newly registered nurse” at a time before the Agreement commenced operation. Any entitlement to acceleration is strictly speaking to be found in clause 95.1 of the 2016 Agreement rather than in the current Agreement, although the obligation to continue to pay Ms Hewitt the appropriate incremental classification rate continues under the Agreement.
Thirdly, acceleration is through the RPN 2 incremental structure and not beyond. If the circumstance in clause 111.1(a)(i) pertains, acceleration is to the RPN 2 Year 2 increment. If the circumstance in clause 111.1(a)(ii) pertains, acceleration is to the RPN 2 Year 3 increment, and if the circumstance in clause 111.1(b) pertains, acceleration is to the RPN 2 increment which is immediately above the rate of pay previously applicable to the relevant employee when employed as a PEN.
Fourthly, the reference to the acronym “PEN” in clause 111.1(b) is a reference to “Psychiatric Enrolled Nurse (‘PEN’)” as defined in clause 9(cc) of the Agreement as follows:
“a person employed by an Employer and classified in accordance with clause 114 and registered as an Enrolled Nurse in Division 2 on the Register of Nurses of the NMBA established by the HRP Act and works within the scope of practice.
This definition is intended for use as an industrial classification and for the purpose of this Agreement only, and does not imply specialist registration. The relevant qualification applicable is dealt with under the HRP Act.”
The reference to clause 114 in the definition above is clearly erroneous since clause 114 sets out classificational definitions and indicia for Registered Psychiatric Nurses. Clause 115 of the Agreement contains classificational definitions and indicia for Psychiatric Enrolled Nurses. Thus, unless the context otherwise requires, a reference to PEN in the Agreement is intended to mean any person meeting the definition who is classified under clause 115. That includes a person who is classified under clause 115 as a PEN Level 4 – Enrolled Nurse Education Support, the PEN classification held by Ms Hewitt when last employed as a PEN. There is nothing in clause 111.1 which suggests that “PEN” is intended to have a meaning other than that found in clause 9(cc).
Fifthly, increment refers to a point of progression within a classification based on years of experience and incremental progression is confined to progression through a classification not between classifications. So much is clear from clause 71.1(e)(iv) of the Agreement which provides:
For the purpose of experience advancement under this Agreement, upon commencement with an Employer:
A. an Employee’s anniversary date is the date the Employee commenced work as a registered nurse, or enrolled nurse following registration either in Australia or internationally (subject to clause 71.1 (e)(i));
B. Years of Experience are relevant to determining the appropriate increment within a Grade, Years of Experience are calculated from the Employees anniversary date; and
C. the onus is on the Employee to demonstrate the completed Years of Experience and anniversary date. The Employer may require evidence that would satisfy a reasonable person of the claimed experience with the previous Employer/s.
Note: Experience and Years of Experience are only relevant to determining what constitutes experience (including previous experience) for the purpose of incremental progression through an Employee’s classification.
Sixthly, clause 111.1(b) appears only to have operative effect when the PEN rate of pay previously applicable to an employee is less than an increment within the RPN 2 classification.
Seventhly, the accelerated progression for which clause 111.1(b) provides is limited to progression to increments within the RPN 2 classification. So much is clear from the words “the RPN 2 increment immediately above”, which signifies the relevant increment of the RPN 2 the “newly registered nurse” will be assigned on commencement.
Eighthly, advancement to a classification beyond RPN Grade 2 Year 8 is by application and appointment. Two examples will suffice. Clause 114.9 contains descriptors for an “RPN 2 PCNS” and “RPN 2 Advanced” and relevantly provides:
“The classification of RPN 2 PCNS or RPN 2 Advanced is only available to an RPN 2 who is able to demonstrate a level of clinical practice that is of a higher level of skill than would otherwise be expected of other RPN 2 positions but less than RPN 3.
. . .
(iii) The RPN 2 PCNS is a personal classification and an RPN 2 can apply for this classification where the RPN 2 has:
A.successfully completed a specific course of training in Nursing leading to registration by the NMBA, or
B.have completed a post graduate course specific to Mental Health Nursing; and
C.has completed a minimum of 12 months experience in Mental Health Nursing at the RPN 2 level.
Whilst applicants would generally be expected to have two years' experience at the RPN 2 level to adequately meet the skill criteria an RPN 2 may apply for the PCNS classification after completion of 12 months experience.
(d)The RPN 2 Advanced is a personal classification and an RPN 2 can apply for this classification where the RPN 2:
(i)is working to units completion of a postgraduate course in Mental Health Nursing and has a minimum of two years Mental Health Nursing experience at the RPN 2 level; or
(ii)has completed a minimum of four years' experience in Mental Health Nursing at the RPN 2 level” [Underlining added]
Thus while both the RPN 2 PCNS or RPN 2 Advanced positions are within the RPN 2 classification, attainment of these positions is not though incremental progression but through application and appointment when the preconditions for appointment are satisfied. The RPN 2 PCNS or RPN 2 Advanced are each a substantive class or category of position within the general RPN2 classification. Neither is an increment to which an PRN2 may advance merely upon obtaining another year or a particular number of years of experience.
Ninthly, each classification beyond RPN 2 is by appointment not incremental progression.
Having regard to the above, the ANMF’s contention that clause 111.1(b) of the Agreement unequivocally confers an entitlement on a PEN who qualifies as an RPN that the employee must not be disadvantaged by being paid less than the rate a PEN was earning prior to commencing employment as a qualified RPN cannot be maintained. Clause 111.1(b) has an element of income protection, but it is not absolute. It has limited operation and applies only to support advanced incremental acceleration (and thus income protection) through the RPN 2 classification where there is an incremental rate of pay in the RPN classification structure which is immediately above the rate of pay previously applicable to the employee when employed as a PEN. In the instant case the rate of pay previously applicable to Ms Hewitt when employed as a PEN was, at the time of commencing as a newly registered nurse, higher than the RPN 2 Year 8 rate of pay (and indeed higher than the RPN 2 Advanced rate of pay) under the 2016 Agreement and that remains the case under the current Agreement.
Strictly speaking, clause 111.1(b) of the Agreement (and more properly clause 95.1 of the 2016 Agreement) had no operative effect on the situation pertaining to Ms Hewitt. This creates somewhat of a lacuna in clause 111.1(b), and is something which the parties may seek to resolve through bargaining for the next agreement or through an application under s 217 of the Act to vary the Agreement to remove an ambiguity or uncertainty. It is at odds with an evident purpose of the provision which allows for an accelerated incremental progression and thus providing a form of income protection, for the Agreement to make no provision for any acceleration when a previous PEN rate of pay to which a newly registered nurse was entitled is higher than the rate of pay applicable to the highest increment (Year 8) in the RPN 2 classification.
Presumably, this is why Barwon Health sought to classify Ms Hewitt as an RPN Grade 2 Year 5 as this is the increment which is immediately above the highest PEN3 increment immediately before the PEN4 classification. This was the PEN classification held by Ms Hewitt when last employed by Barwon Health. But PEN3 was not the relevant comparator for the purposes of clause 111.1(b) of the Agreement (and more properly clause 95.1 of the 2016 Agreement). The relevant comparator was the rate of pay previously applicable to Ms Hewitt when she was (last) employed as a PEN (noting the typographical error reference to RPN earlier discussed in clause 95.1 of the 2016 Agreement). When Ms Hewitt was (last) employed as a PEN, she was employed and classified as a PEN4. The comparator is the rate of pay applicable to the PEN4 classification in which she was employed.
Given the analysis above, the answer to the question posed must be “no”.
In order not to visit on Ms Hewitt an injustice by reason of the lacuna identified and without extending the operation of clause 111.1(b) of the Agreement (and more properly clause 95.1 of the 2016 Agreement) beyond that for which the words reasonably permit, I recommended as follows:
A.Ms Hewitt be reclassified to and paid at the rate of pay applicable to an RPN 2 Year 8.
B.Barwon Health pay Ms Hewitt back pay for the period since her commencement as an RPN with Barwon Health, as though she were classified as an RPN Year 8 on commencement and throughout that period.
C.The reclassification should commence from the beginning of the next full pay period commencing after the date of this recommendation.
D.The back payment should be made no later than the first pay period commencing on or after the expiration of 30 days from the date of this recommendation.
DEPUTY PRESIDENT
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