Australian Nursing and Midwifery Federation v Barwon Health
[2014] FWC 811
•5 FEBRUARY 2014
[2014] FWC 811 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Nursing and Midwifery Federation
v
Barwon Health
(C2013/5948)
Health and welfare services | |
VICE PRESIDENT WATSON | SYDNEY, 5 FEBRUARY 2014 |
Dispute in relation to Nurse to Patient Ratios, Workload, Staffing - Allowances and Consultation - Reduction in Nursing Hours - Whether a proposal that complies with the agreement has been made - whether there has been consultation in Good Faith - Principles for interpreting enterprise agreements.
Introduction
[1] This decision concerns an application for the Fair Work Commission (the Commission) to deal with a dispute. The application is made by the Australian Nursing and Midwifery Federation (ANMF) under s.739 of the Fair Work Act 2009 (the Act). The application is made in relation to changes that are proposed at two aged care facilities operated by Barwon Health. The dispute primarily concerns the interpretation of Clause 42 of the Nurses and Midwives (Victorian Public Sector)(Single Interest Employers) Enterprise Agreement 2012-2016 (the Agreement).
[2] The dispute was listed for several conferences before another member of the Commission but the parties were not able to reach a resolution. The matter was then referred for arbitration and reallocated in accordance with Clause 11.8 of the Agreement. The dispute was listed for hearing on 19 and 25 November 2013, and final submissions were made on 19 December, and subsequently in writing. At the hearing, Mr E. White, of counsel, appeared for the ANMF, and Mr G McKeown, of counsel, appeared for Barwon Health.
Background
[3] Barwon Health is a public health service, established under the Health Services Act 1988. It provides public health services including mental health services, community health services and residential aged care services. The dispute centres on a decision by Barwon Health to reduce nursing hours at two of its aged care facilities: Wallace Lodge and Alan David Lodge. These facilities are stand alone 108 bed public sector residential facilities. The intended reduction in nursing hours is 324 hours per weekly roster. The reasons for the change include proposed Federal Government aged care reforms, and a desire on the part of Barwon Health to alter the skill mix of staff on each shift in the facilities.
[4] On 28 February 2013 Anne Hague, the Director of Aged Care at Barwon Health, sent a letter to staff at the two facilities announcing the intended implementation of alterations to nursing arrangements in high level care. Nurses were asked to attend meetings to discuss the changes, and complete expression of interest forms indicating their preferred hours of work in a new roster. This was followed by an employee impact statement which was distributed to staff on 6 March 2013.
[5] Following discussions and correspondence between Barwon Health and the ANMF, the ANMF made application to the Commission to deal with the dispute on 9 September 2013. Arising from the conciliation conferences certain changes were made to Barwon Health’s proposals. The final version of the proposal is dated 9 October 2013.
[6] The final version of the proposal is a 30 page document which contains the following sections:
1. Organisational Decision
2. Rationale/Intended Benefits to Proposed Change
3. Nature of the Changes
4. Clause 42 Considerations
5. Support
Appendix A - Current Rosters - High Level Care
Appendix B - Proposed Rosters - High Level Care
Attachment A - Aged Care Indicators References
Attachment B - Research in Barwon Health’s Residential Aged Care Facilities
Attachment C - FAQs (March 2013)
[7] In section 3 of the proposal the proposed changes to current rosters were expressed to include:
“3. NATURE OF THE CHANGES
The proposed changes to 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 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”
[8] Evidence in this matter was given by:
Barwon Health
ANMF
The Issues in Dispute
[9] The dispute relates to whether Barwon Health has the ability to implement its proposed reduction in nursing hours consistent with the terms of the Agreement and more particularly whether it has complied with the consultation requirements of the Agreement. This in turn concerns the meaning and application of various clauses of the Agreement. Insofar as the dispute relates to clause 42, the limitations on the role of the Commission in relation to such a dispute, as set out in clause 42.5 below, need to be applied.
[10] The ANMF contends that roster changes must comply with clause 42 of the Agreement, Barwon Health has not followed the processes under clause 42, has not made a proposal that complies with clause 42 and has not had consultations as required by clause 42.
[11] Barwon Health contends that clause 32 is the relevant clause for the changes proposed and it has met those requirements. In the alternative it contends that if clause 42 applies, it has also met those requirements.
[12] From these various positions it will be seen that the key questions that need to be considered are as follows:
- 1. What are the appropriate terms of the agreement that apply to the changes proposed in the October 2009 document? More specifically, does clause 42 apply?
2. If clause 42 applies to the proposed changes, has a proposal been made that complies with the requirements of clause 42?
3. If a proposal has been made that complies with clause 42, has good faith consultation occurred as required by clause 42?
[13] Clause 32 of the Agreement provides:
“32 Organisational Change
32.1 Existing Organisational Change Agreements
Clause 32 is not intended to displace any more advantageous (for Employees) organisational change arrangement which is operative at the date of commencement of this Agreement.
32.2 Consultation about major change
(a) Where an Employer has made a definite decision to implement major changes in its program organisation, structure or technology that are likely to have a significant impact on Employees, the Employer shall, as early as practicable, consult with Employees, the local representatives of the Employees (such as local Union representative, before the introduction of any proposed changes.
(b) The Employer shall discuss with the affected Employees and their representatives (such as the relevant Union), amongst other things:
- the introduction of changes that are likely to have significant effect on Employees;
- the effects such changes are likely to have on Employees;
- the reasons for any proposed redundancies and measures to avert or
- adverse effects of such changes on Employees.
(c) For the purposes of such discussion, the Employer shall provide in writing to the affected Employees and their representatives (such as the relevant Union):
- all relevant information about the changes, including the nature of the changes proposed;
- reasons for any proposed redundancies and the number of Employees and categories likely to be affected; and
- the expected effects of the changes on Employees and other matters that may impact on them,
(d) The Employer is not required to disclose confidential information, the disclosure of which would be contrary to the Employer’s interests.”
[14] Clause 42 provides as follows:
“42 Workload Management/Ratios and Rosters
42.1 Other than in accordance with this clause, the ratios in Schedule C of this Agreement form the minimum nurse/midwife staffing levels to apply to all wards and units.
(a) The parties to this Agreement strongly support the need for nursing resources to be used effectively and efficiently, and recognise that nursing workload impacts on quality patient care and profoundly affects nurses/midwives work and performance.
(b) 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 quality of patient care. Nothing in this provision allows for the unilateral changing of an Employee's contract of employment.
(c) The following are considerations, where relevant, that must be addressed in any proposal to reduce, increase or redistribute nursing hours:
(i) 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
(ii) The capacity of nursing/midwifery staff to complete their duties within existing work hours; and
(iii) 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);
(iv) OH&S considerations such as physical environment and staff safety; and
(v) Nursing/Midwifery staff engagement.
42.2 Redistribution of nursing hours
(a) Where the Employer and/or the nursing staff of a particular ward or unit seek to increase or redistribute the nursing hours generated by the rations (and any additional nursing EFT allocated to that ward or unit under this or the 2007 Agreement or the 2009 Agreement), this may occur by applying the terms of this Clause 42.2.
(b) The existing staffing ratios (or agreed CWMA) may be used (as a minimum) to generate a parcel of nursing hours over a 28 day period that may be redistributed within the ward or unit. For example a Level 3 medical surgical ward of 30 beds would generate this amount of nursing hours:
Specialty | No beds | AM ratio | PM ratio | ND ratio | Beds div by AM ratio | Beds div by PM ratio | Beds div by ND ratio |
Medical Ward | |||||||
Medical | 30 | 5 | 5 | 8 | 6 | 6 | 4 |
Hours per day | 48 | 48 | 40 | ||||
Hours per week | 336 | 336 | 280 | ||||
Hours per 4 weeks | 1344 | 1344 | 1120 | ||||
Total nursing hours | 3808 | ||||||
(above example is based on automatic rounding up at 50%)
(c) The number of nursing hours generated over the 28 day period (in the example above 3,808 hours) may be redistributed to that ward’s nursing roster subject to the following principles:
(i) The full number of nursing hours generated over the 28 day period (in the example above 3,808 hours) must be utilised as nursing hours on that ward or unit within the 28 day cycle.
(ii) Nursing hours relate to direct patient care hours and do not include the additional components of in-charge, or nursing education, clinical consultancy, nurse practitioner or the like if not requiring a patient load as part of the role, and do not include coverage for any form of leave or absence.
(iii) At no time will the ward or unit have less than 2 nurses on a shift, one of whom must be a Registered Nurse, except where a ratio less than this is provided for in Schedule C.
(iv) The redistribution of hours must be based on a genuine and reasonable belief having regard to the considerations in 42.1(b) and 42.1(c), the workloads and that delivery of quality patient care will be maintained or improved by the redistribution.
(v) Short shifts (as defined) shall not be utilised other than in accordance with the terms of this Agreement.
(vi) Current shift lengths being worked by Employees shall continue to be honoured and applied unless the Employee agrees to an alternative.
(vii) Agreement requirements as to skill mix continue to apply.
(d) The employer will provide, in writing, the proposal to redistribute the nursing hours to all affected nursing staff and provide information that addresses each of the considerations referred to in 42.1(b) and 42.1(c).”
42.3 Below ratios distribution
(a) The Employer or the nursing staff may propose:
(i) not to utilise the full number of nursing hours generated over the 28 day period (in the example above 3,808 hours) as nursing hours on that ward or unit within the 28 day cycle; or
(ii) to increase the number of short shifts beyond the number referred to in clause 52.4.
(b) In these circumstances, the Employer shall provide the proposal to reduce the nursing hours (other than a reduction of rostered hours after a period of increased hours due to seasonal demand) in writing to all affected nursing staff.
The proposal will address each of the considerations in 42.1(b) and 42.1(c); and
(i) A copy of the proposal will be simultaneously forwarded to the Secretary of the ANF.
(ii) A period of up to one month will be provided for consultation.
(iii) Subject to clause 42.5, the proposal may be implemented from the beginning of the next roster period.
42.4 Alternative staffing model
(a) As an alternative to 42.2 or 42.3 above, the Employer may propose to trial an established Nursing Hours per Patient Day model like those in operation in other States.
(i) The Employer and affected Employees (or their representatives) will agree
on a trial process including the duration, scope, benchmarks, assessment
methodology and review criteria.
(ii) Such a trial must be for an agreed period of not more than 14 months, with
a complete review at 12 months.
(iii) Skill mix considerations will be consistent with the Agreement provisions
applying to the category of health service undertaking the trial.
(iv) The review criteria must include the considerations contained in clauses 42.1(b) and 42.1(c).
(v) Continuation beyond the trial period will be subject to trial criteria meeting or
exceeding pre-trial benchmarks.
(vi) An extension of the initial trial by agreement.
42.5 Resolving disputes
Where there is a dispute as to compliance with the processes provided for in this clause, either party may seek to progress the proposal through clause 11 of this Agreement. However, in exercising its powers, Fair Work Australia may only consider whether consultation in good faith has occurred having regard to the considerations in clauses 42.1(b) and 42.1(c). Accordingly, clinical aspects of the change remain the sole responsibility and accountability of the Employer and are not subject to consideration by Fair Work Australia.
42.6 Filling of vacancies
In order to ensure the effective operation of the CWMA, the process for advertising and filling of vacancies shall be as follows:
(a) Each ward/clinical unit shall immediately establish a nurse staffing profile based on EFT Employees
(b) Where a vacancy arises within that nurse staffing profile, the responsible manager/nurse-in-charge will initiate action to advertise the vacant position internally and/or externally immediately after receiving notice of resignation or termination.
(c) The Employer shall advertise all ward based vacancies that arise where the vacancy relates to a position that but for the vacancy occurring would have been ongoing, as soon as practicable (ordinarily within eight working days).
Principles of Interpretation
[15] The principles of interpretation of the Agreement are not in dispute. The leading High Court case is Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union 1 (Amcor). In that case Gummow, Hayne and Heydon JJ stated:
“30. Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”
[16] Kirby J said:
“94. However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.
96. The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’” (references omitted)
[17] Callinan J stated that there was substance in the abovementioned observations of Madgwick J in Kucks v CSR Limited 2 (Kucks). He then said:
“131. An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties. …”
[18] In Kucks, following the passage quoted above, Madgwick J went on to say:
“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
[19] A leading case in relation to the interpretation of agreements is Codelfa Construction Pty Ltd v State Rail Authority of NSW. 3 The dicta of Justice Mason, as he then was, (with whom Stephen, Aickin and Wilson JJ agreed) has frequently been adopted and applied in matters concerning the interpretation of enterprise agreements. In Codelfa His Honour said (at 352):
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”
[20] I turn to consider the questions posed by the parties in the dispute.
What are the appropriate terms of the agreement that apply to the changes proposed in the October 2009 document? More specifically, does clause 42 apply?
[21] Clause 32 is a conventional clause dealing with organisational change requiring consultation about major changes that are likely to have a significant effect on employees. It is triggered by a definite decision being made - as distinct from a proposal or an idea. It is well established that making a definite decision requires the commencement of a consultation process where the employer must keep an open mind as to changes that are appropriate having regard to the consultations. The submission of the ANMF that clause 32 does not apply because it only applies to definite decisions is contrary to the long history of interpretation of clauses of this nature. It is clear in my view that the clause applies on its face. However clause 32.1 states that clause 32 is not intended to displace any organisational change arrangement that is more advantageous to employees. The real question therefore is whether clause 42 also applies.
[22] Clause 42 is headed “Workload Management/Ratios and Rosters”. The clause requires some analysis to determine its meaning and intent. Sub-clause 42.1 emphasises the binding nature of the minimum staffing levels in Schedule C to the Agreement. Sub-clause 42.1(a) appears to be a statement of intention. Sub-clause 42.1(b) acknowledges possible deviations from the minimum nurse to patient ratios and for such purposes stipulates the primary considerations. Sub-clause 42.1(c) stipulates the considerations that must be addressed in any proposal to reduce, increase or redistribute nursing hours. Sub-clause 42.2 provides for a process to be followed for redistributing the nursing hours generated by the ratios. Sub-clause 42.3 provides for a process with respect to below ratio distributions. Sub-clause 42.4 provides for trials of alternative staffing models. Sub-clause 42.5 deals with a process for resolving disputes as to compliance with the processes under clause 42. Sub-clause 42.6 sets out a process for advertising and filling vacancies.
[23] The ANMF submits, by reference to the history of the clause, that clause 42 deals with nurse to patient ratios and variations thereto and the proposal in this matter falls within that description. Barwon Health contends that clause 32 applies and clause 42 does not because the Barwon Health proposal does not seek to vary the minimum nurse to patient ratios. The clause is difficult to interpret and no evidence of the intention of those who made the agreement assists in its interpretation. In my view it must be interpreted on its face.
[24] The proposal to reduce nursing hours across the facilities by 324 hours per week is clearly, in my view, “a proposal to reduce ... nursing hours” within the meaning of sub-clause 42.1(c). Therefore it is clear in my view that the considerations in that sub-clause must be applied to the proposal. The answer to the first question is “Yes”.
If clause 42 applies to the proposed changes, has a proposal been made that complies with the requirements of clause 42?
[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.
[26] Barwon Health submits that if a purposive interpretation is adopted to interpreting the clause there is a proposal within the meaning of clause 42.3.
[27] In my view it is clear that the 9 October proposal is a proposal that falls within the description of clause 42. It is also clear that the intent of sub-clause 42.1(b) is to highlight the importance of the impact of any proposed changes on the quality of patient care. The sub-clause does not state, and does not mean, that that the only possible motivation for changes can be an intended (positive or negative) impact on patient care. Motivation for changes is not dealt with in the clause. It would be quite unusual, to say the least, for parties to agree in an enterprise agreement, that budgetary savings cannot be a reason for an operational change that leads to a reduction in nursing hours. The wording of the clause does not bear out such an interpretation.
[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”.
If a proposal has been made that complies with clause 42, has good faith consultation occurred as required by clause 42?
[29] The ANMF submits, as an alternative to its primary submissions, that the 9 October proposal does not contain a primary consideration of the impact on patient care and does not adequately give consideration to the factors in clause 42.1(c). It makes detailed criticisms of the way in which these matters are dealt with in the 9 October proposal. It submits that Barwon Health has engaged in unfair conduct because it has sought to hide its motivation of budgetary considerations in the language of patient care.
[30] Barwon Health submits that it has engaged in consultation with the ANMF since March 2013 and during that time has consistently provided information when asked. It rejects the allegation that it has engaged in unfair conduct. It submits that the ANMF, by way of an overly technical interpretation, has sought to prevent the proposal being implemented.
[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 4.
[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.
[38] The role of the Commission in determining this dispute is limited by the terms of clause 42.3 of the Agreement to determining whether there has been consultation in good faith. It should be noted that consultation regarding these changes commenced almost a year ago. During the intervening period, numerous meetings, written communications and conciliation sessions have occurred, and ultimately the dispute has been arbitrated. In the interim, the changes to the nursing hours proposed in February 2013 have not been implemented.
[39] The changes sought to be made by Barwon Health are acknowledged to resolve some cost overrun issues within the facilities. However the process of disputing the changes by challenging the validity of the proposal and the good faith of Barwon Health in its approach to consultation, in my view, has been overly negative and designed to prevent or delay the changes rather than ensure that genuine consultation occur as required by the Agreement.
[40] In my view parties who commit to consultations have a responsibility to approach all obligations and all opportunities in a constructive manner. I am not satisfied that the ANMF has done so in the circumstances of this case. I trust that future proposals are considered and discussed in a far more constructive and expeditious manner.
VICE PRESIDENT WATSON
Appearances:
Mr E White, of counsel for the Australian Nursing and Midwifery Federation.
Mr G McKeown, of counsel for Barwon Health.
Hearing details:
2013.
Melbourne.
November 19, 25.
Sydney
December 19.
Final Written Submissions:
Mr E White, 16 and 23 December 2013.
Mr G McKeown, 12 and 20 December 2013
1 (2005) 222 CLR 241.
2 (1996) 66 IR 182.
3 (1982) 149 CLR 337
4 CEPU v Optus Administration Pty Ltd [PR912122] 4 December 2001.
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