Australian Nursing and Midwifery Federation v Royal Children's Hospital
[2017] FCA 59
•3 February 2017
FEDERAL COURT OF AUSTRALIA
Australian Nursing and Midwifery Federation v Royal Children’s Hospital [2017] FCA 59
File number(s): VID 132 of 2016 Judge(s): NORTH J Date of judgment: 3 February 2017 Catchwords: INDUSTRIAL LAW – construction of enterprise agreement – whether or not definition of experience limited to experience under enterprise agreement Legislation: Health Practitioners Regulation National Law 2009
Nurses and Midwives Act 1991 (NSW)
Date of hearing: 13 December 2016 Date of last submissions: 20 December 2016 Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 25 Counsel for the Applicants: Mr J McKenna Solicitor for the Applicants: Ryan Carlisle Thomas Counsel for the Respondent: Mr M Rinaldi Solicitor for the Respondent: K & L Gates ORDERS
VID 132 of 2016 BETWEEN: AUSTRALIAN NURSING AND MIDWIFERY FEDERATION
First Applicant
KATRINA SCHILLI
Second Applicant
AND: ROYAL CHILDREN'S HOSPITAL
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
3 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The answer to the following question:
By reason of the matters alleged in paragraphs 1 to 5 of the statement of claim [which are reflected, omitting additional particulars in some paragraphs, in paragraphs 1 to 5 of the agreed statement of facts set out in [4] of the reasons for judgment], was the respondent obliged to recognise the second applicant’s employment as a Registered Nurse at the Royal Hospital for Women in New South Wales as “Experience” for the purpose of calculating her “Years of Experience” pursuant to cl. 40.9 and Schedule B to the Nurses and Midwives (Victorian Public Section) (Single Interest Employers) Enterprise Agreement 2012 – 2016;
is yes.
2.The proceeding is adjourned to a case management hearing on 17 March 2017 at 10:15am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
On 10 February 2016, the Australian Nursing and Midwifery Federation, the first applicant, and Katrina Schilli, the second applicant, filed an originating application alleging that the respondent, the Royal Children’s Hospital, had underpaid the second applicant in her employment by the respondent as a registered nurse.
The applicants seek declarations of contravention, penalties, and orders for underpayment and interest to be paid to the second applicant.
At the centre of the dispute between the parties is a question of construction of the enterprise agreement governing the employment of the second applicant. In order to have that threshold issue determined, on 29 July 2016, the Court ordered by consent that a separate question be heard and determined pursuant to rule 30.01 of the Federal Court of Australia Rules 2011. On 31 August 2016, the parties filed a statement of agreed facts.
The statement of agreed facts is as follows:
1The Respondent is and was at all relevant times:
(a) A public health service;
(b)A body corporate established under s 65 of the Health Services Act 1988 (Vic);
(c) Operating a hospital at 50 Flemington Road, Parkville Victoria;
(d) Engaging nurses to do work for reward; and
(e)Bound by the terms of the Nurses and Midwives (Victorian Public Sector)(Single Interest Employers) Enterprise Agreement 2012 – 2016 (Agreement). …
2The First Applicant is and was at all material times:
(a)An organisation registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009;
(b)An employee organisation within the meaning of the Fair Work Act 2009 (FW Act);
(c)Covered by the Agreement; and
(d)Entitled to bring proceedings against the Respondent for a contravention of the Agreement.
3The Second Applicant:
(a)Is registered in Division 1 of the Register of Nurses of the Nursing and Midwifery Board of Australia established under the Health Practitioners Regulation National Law Act 2009 (National Law);
(b)Became a Registered Nurse pursuant to the Nurses and Midwives Act 1991 (NSW) on 22 December 2008 and was, from that time, entitled to apply for mutual recognition of her registration as a Registered Nurse in another state or territory;
(c)Commenced employment on a full time basis as a Registered Nurse on 27 January 2009 at the Royal Hospital for Women in New South Wales; and
(d)Has, since 27 January 2009 worked as Registered Nurse an average of three shifts per week or more in each year.
4The Agreement is and was at all material times an enterprise agreement within the meaning of the Fair Work Act 2009 (FW Act).
5On or about 12 November 2012 the First Applicant commenced employment with the Respondent:
(a) On a full-time basis;
(b) As a Registered Nurse Grade 2 Year 3; and
(c) At the rate of $1,035.00 per week.
6At all times since 12 November 2012 the First Applicant has continued in her employment with the Respondent:
(a) On a full-time basis; and
(b) As a Registered Nurse Grade 2.
The parties were agreed that the statement of agreed facts contained an error at [5(b)] which should have stated: “As a Registered Nurse Grade 2 Year 4”.
The separate question is:
By reason of the matters alleged in paragraphs 1 to 5 of the statement of claim, was the respondent obliged to recognise the second applicant’s employment as a Registered Nurse at the Royal Hospital for Women in New South Wales as “Experience” for the purpose of calculating her “Years of Experience” pursuant to cl. 40.9 and Schedule B to the Nurses and Midwives (Victorian Public Section) (Single Interest Employers) Enterprise Agreement 2012 – 2016?
Paragraphs 1 to 5 of the statement of claim referred to in the separate question are reflected, omitting additional particulars in some paragraphs, in paragraphs 1 to 5 of the agreed statement of facts set out above.
Under the Agreement the wage rate for a Grade 2 Registered Nurse employed by the respondent depends on the level of experience of the nurse. The issue between the parties is whether, as the respondent says, the only experience taken into account is experience as an employee under the Agreement, or, as the applicants say, whether relevant experience includes experience as a nurse at the same or higher level wherever that experience was gained, including, as in the case of the second applicant, experience gained interstate.
Accordingly, the respondent argues that it was correct to progress the second applicant’s pay to the next annual increment under the Agreement on the anniversary of her employment with the respondent, namely, 12 November of each year. The applicants argue that the respondent should have progressed the second applicant’s pay on the anniversary of her prior employment in New South Wales, namely 27 January of each year.
The Agreement applies only to employers in the Victorian Public Sector. The employers bound to the Agreement are listed in Schedule A of the Agreement.
The terms of the Agreement relevant to the determination of the separate question are as follows:
36 Salary and Allowances
(a) The weekly salaries over the life of the Agreement and certain allowances are set out in Schedule B.
Schedule B sets out the pay levels for Grade 2 Registered Nurses in ten annual increments from Grade 2 Year 1 to Grade 2 Year 10.
Classification within Grade 2 is dealt with by cl 40.9(a) which provides:
40.9 Grade 2
(a)A Registered Nurse in the first or subsequent Years of Experience as a Registered Nurse and not elsewhere classified.
It is common ground that the second applicant does not fall into any other classification.
“Registered Nurse” is defined in cl 4(x) as follows:
Registered Nurse means a person registered in Division 1 on the Register of Nurses or a person registered as a Midwife on the Register of Midwives of the Nursing and Midwifery Board of Australia established under the Health Practitioners Regulation National Law Act 2009 but does not include a Registered Nurse who is employed solely or predominantly in the provision of public mental health services.
A “Year of Experience” is defined in cl 4(m) as follows:
a Year of Experience means Experience gained from working an average of three shifts or more per week in a year. If the Employee averages less than three shifts per week or 48 hours per fortnight (whichever is the lesser), the Employee will need to complete an additional year to advance. Where in this Agreement there is a reference to a number of Years of Experience greater than one, then each such Year of Experience must be calculated by reference to the definition of one Year of Experience in order to determine whether an Employee has attained the requisite number of Years of Experience.
“Experience” is defined in cl 4(l) as follows:
Experience means service and experience following registration in a grade or sub-grade at least equal to that in which the Employee is employed (or to be employed). Where an Employee has previously been employed in a higher grade or sub-grade, service and experience in that higher grade or sub-grade will count as service and experience in the lower grade or sub-grade for the purposes of determining an Employee’s Experience.
[Emphasis added]
The construction issue focuses on the first sentence in the definition of Experience in cl 4(l).
The first inquiry is what is the ordinary meaning for the words used. The respondent says that the reference to grades and sub-grades is a reference to those terms as used in the Agreement and, hence, the experience referred to is experience from employment under the Agreement, namely, employment with a Victorian Public Sector employer listed in Schedule A of the Agreement.
This approach, however, does not give sufficient attention to the context in which the words are used. The reference to grades and sub-grades is for the purpose of classifying Grade 2 nurses by reference to their experience so that their pay levels reflect the experience they bring to the employment. There is no rational basis disclosed in this proceeding to distinguish experience gained from employment as a Grade 2 Registered Nurse under the Agreement from experience gained at that level elsewhere in Victoria, interstate, or overseas, as a basis for positioning the Grade 2 nurse within the classification.
If the relevant experience is limited to experience from employment under the Agreement then a nurse with say thirty years’ experience in the private sector in Victoria, or in any employment interstate, would not count for the purpose of classification and hence pay levels. That nurse applying for a Grade 2 position in Victoria for the first time would start as a Grade 2 Year 1 Registered Nurse. Ordinarily the respondent would not be able to attract experienced Grade 2 Registered Nurses from the private sector in Victoria or elsewhere. That seems an unlikely outcome. It may be that the present case is an example of this, because despite the respondent’s contentions, the second applicant was employed by the respondent as a Grade 2 Year 4 nurse.
Further, if the relevant experience is experience from employment under the Agreement, some bizarre results would follow. The agreement operated from 6 July 2012. Grade 2 Registered Nurses already employed by the respondent prior to that date were not employed under the Agreement until 6 July 2012. The Agreement has a nominal expiry date of 31 March 2016. The respondent’s argument means that the only experience counted is experience which commences on 6 July 2012. A Grade 2 Registered Nurse who had worked for the respondent in that capacity for twenty years prior to 6 July 2012, would, under the Agreement read in this way, only be entitled to a Grade 2 Year 1 pay rate when the Agreement commenced. If the Agreement expired on the nominal expiry date after less than four years there is no point in having wage rates for levels beyond Year 4. Yet, the Agreement provides for ten annual increments.
The respondent contends that the applicants’ proposed construction should not be accepted because the Agreement does not provide a mechanism by which a grade or sub-grade classification from the private sector or interstate might be deemed equivalent to the relevant grade or sub-grade under the Agreement. However the registration of nurses is governed by the Health Practitioners Regulation National Law 2009 (the National Law). That allows for mutual recognition of interstate registration of nurses throughout Australia. Such a scheme recognises the portability of the qualification. The Agreement was made at a time when the National Law was in operation. If the Agreement intended the relevant experience to be limited to experience obtained from employment under the Agreement it is likely that the position would have been made explicit by, for instance, referring to experience in a grade as experience “under this Agreement”. Further, a joint note on qualification as a registered nurse in New South Wales and Victoria provided by the parties after the hearing at the request of the Court notes that even before the operation of the National Law, qualification as a registered nurse in both jurisdictions followed national competency standards and a national framework published by the Australian Nursing and Midwifery Council, then the peak national nursing and midwifery organisation. Relevantly, that framework recommended that accreditation for courses for registered nurses be limited to a university-based bachelor degree, a recommendation that was reflected in both the New South Wales and Victorian registration schemes.
It follows from this construction that the relevant experience commences when the employment at the relevant grade or sub-grade commenced, not on the date when the experience from employment under the Agreement commenced. In the case of the second applicant, her relevant experience commenced on 27 January 2009, when she started work as a Registered Nurse at the Royal Hospital for Women in NSW. She is entitled to progress to the next yearly increment under the Agreement on 27 January each year. The respondent was not entitled to wait until the anniversary of the second applicant’s employment with the respondent, namely, 12 November, to pay the second applicant at the rate of the next yearly increment provided in Schedule B of the employment.
It follows from these reasons for judgment that the answer to the separate question is yes.
As there are further issues to be considered as a consequence of the answer to the separate question, the proceeding is adjourned for a case management hearing on 17 March 2017 at 10:15am.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 3 February 2017
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