Australian Nursing Federation v Alfred Health

[2013] FWC 3285

[2013] FWC 3285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Nursing Federation
v
Alfred Health
(C2013/2547)

(C2013/2760)

COMMISSIONER GREGORY MELBOURNE, 31 MAY 2013

Alleged dispute in relation to Consultation.

Introduction

[1] This matter concerns two disputes notified by the Australian Nursing Federation (the ANF) in response to a “proposal” by Alfred Health (the Respondent) within the meaning of Clause 42 of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012 – 2016 1 (the Agreement). Leave was granted to Mr E. White of Counsel to appear on behalf of the Applicant and to Mr P. Wheelahan of Counsel to appear on behalf of the Respondent. The matters had previously been dealt with in conference on two occasions but were unable to be resolved.

The Issue to be Decided

[2] The Respondent has proposed changes to existing staffing arrangements. It wants to implement a night nursing team to provide a means of redistributing nursing resources among seven wards based on clinical need. It has developed a “proposal” in support of the implementation of these changes. It is acknowledged by both parties that implementation of this proposed change is to be introduced in accordance with clause 42 of the Agreement. The Respondent submits it has done all things necessary to comply with those requirements and has, accordingly, engaged in good faith consultation as required by sub clause 42.1(b) and (c) of the Agreement.

[3] The Applicant submits in response there has been no proposal properly made within the meaning of sub clause 42.1(b) and (c) of the Agreement and, therefore, there has not been good faith consultation engaged in by the Respondent.

[4] As indicated, it is common ground between the parties that the matter is to be determined on the basis of the meaning and intent of clause 42 of the Agreement, in particular, sub clause 42.1(c) which deals with the considerations, where relevant, that must be addressed in any “proposal”, and sub clause 42.3(b) which deals with how that proposal is to be made known to affected staff and the consultation processes that then follows. Clause 42.5 continues to detail what is to occur when the parties are in dispute about a proposal. That process enables the Commission to be involved, however, its powers in those circumstances are confined to whether consultation in good faith has occurred having regard to the considerations in clause 42.1(b) and (c).

[5] The relevant parts of clause 42 “Workload Management/Ratios and Rosters” are as follows:

“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.

...

42.3 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.

...

42.5 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.” 2

[6] The Respondent’s “proposal” is contained in a document dated 19 December 2012 and headed “Employee Impact Statement Hospital After Hours Workforce Model” 3. The introduction to that document indicates:

“This proposal describes the organisational changes within Alfred Hospital to implement a new after hours service model to improve treatment and care of patients at night.” 4

However, the Applicant contends the document does not constitute a “proposal” in accordance with sub clause 42.1(c) because it has not addressed the considerations in that sub clause “where relevant, that must be addressed in any proposal to reduce, increase or redistribute nursing hours.” 5 Accordingly, in its submission there can be no progression of a proposal in accordance with sub clause 42.3(b).

[7] The issue that accordingly fell to be determined at the outset of the proceedings was whether the document dated 19 December 2012 and headed “Employee Impact Statement Hospital After Hours Workforce Model” constitutes a “proposal” within the meaning of clause 42 of the Agreement. In the alternative if the document is found to constitute a proposal within the meaning of that clause then has the Respondent engaged in consultation in good faith about that proposal within the meaning of sub clause 42.3.

[8] However, the witness evidence in the proceedings raised a further issue for consideration. That evidence indicated the employer had not complied with the requirements of clause 42.3(b) which provides in part “....the Employer shall provide the proposal to reduce the nursing hours ... in writing to all affected nursing staff.” 6 Accordingly, the consequence of this omission is also required to be considered and determined.

The Submissions and Evidence

[9] For reasons that will become clear this decision only refers to limited parts of the evidence and submissions of the parties, being those matters considered to be relevant to the determination of the matter.

[10] Ms Janet Weir–Phyland is the Director of Nursing at Alfred Health and was called as a witness by the Respondent. Her evidence detailed the processes in regard to the development of the Respondent’s proposal to change existing staffing arrangements in the after hours service provided by nursing staff in various wards at the Alfred Hospital. She was also cross-examined at some length about the array of data and information available to the Respondent in regard to a range of matters including patient care, staffing profiles and nurse sensitive outcomes.

[11] At PN777 the following exchange took place toward the conclusion of that cross examination:

“All right. Now can I suggest - well, can I ask you the question is it the case that whilst the Alfred contends there has been a range of discussions with staff, the nurses affected by the proposal were not given the Employee Impact Statement Hospital After Hours Workplace Model document?---No, they were given a one page summary document.” 7

[12] And further at PN779:

“Now first of all, Ms Weir-Phyland, the Employee Impact Statement Hospital After Hours Workplace Model which I'm just showing you now, that's the document - I take it your evidence is that that document wasn't given to affected staff but a one page summary was; is that right?---Correct. That's correct.” 8

[13] The witness subsequently confirmed a one page summary was provided to the affected nursing staff rather than the complete Impact Statement or proposal document. In re-examination she also said the full proposal document was not posted on staff notice boards, but instead:

“The information that went to staff was the one page document.” 9

[14] The Applicant made reference in response to sub clause 42.3(b) of the Agreement, which has already been detailed, and states in part:

“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.” 10

[15] It continued to submit, “It is now clear that that proposal was not provided to the affected staff in writing” and “...the proposal on which the Alfred relied, that of the document of 18 December, was not provided to the affected staff. Not provided at all and not provided in writing.” 11

[16] In its submission it was accordingly now open to the Commission to deal with and determine the matter on that basis alone, given that the proposal was not provided to the affected nursing staff, as required by clause 42.3(b).

[17] Counsel for the Respondent stated in response “If you then find that the proposal within the meaning of the agreement was not provided to all staff, I agree with my learned friend that would be fatal...” 12. However, the Respondent did not concede evidentiary the point; it simply acknowledged instead that a finding in those terms, based on the evidence, would be “fatal.” However, it also submitted in order to make a finding about whether the proposal had been provided to all staff it was first necessary to find it was, in fact, a “proposal” that met the requirements of clause 42.1(b). In its submission that was the appropriate “chronology of the findings”13 or the appropriate “steps in the process”14.

Consideration

[18] It is self evident that issues to do with staffing and nurse/patient ratios have been and remain of fundamental importance to the parties. They go to aspects of the relationship that have been contentious and a significant focus in negotiations over an extended period. In this context the evidence and submissions indicated that the existing provisions in the current Agreement are the first occasion on which an agreement between the parties has not contained a final right of veto for the Applicant in respect to proposed changes to nurse/patient ratios, since provisions dealing with those matters were first included in an agreement between the parties in 2000. The evidence also indicated that the “proposal” by the Respondent was the first to have been initiated since the current agreement was approved by the Tribunal in June, 2012.

[19] In those circumstances any proposal for change pursuant to Clause 42 is obviously going to attract close scrutiny. The relevant parts of Clause 42 have already been set out in detail and are not restated. They provide, firstly, in sub clause 42.1(b) that:

“When considering a deviation from the minimum nurse to patient ratios....the primary considerations will be the impact on quality of patient care.” 15

Sub clause 42.1(c) then continues to set out a series of considerations that must be addressed, where relevant, in any proposal for change to existing arrangements.

[20] Clause 42.3 deals specifically with “Below ratios distribution” and paragraph (b) requires that:

“the Employer shall provide the proposal to reduce the nursing hours... in writing to all affected nursing staff.” 16

As indicated, the evidence of the Director of Nursing is that this was not done. The submissions of both the Applicant and Respondent acknowledge this failure would be fatal to any proposal developed in accordance with Clause 42. However, the Respondent submits this does not preclude and, indeed, might require a finding at first instance that a “proposal” otherwise exists, before it can be determined whether it has been provided to the affected employees.

[21] I am not satisfied that this is the appropriate way to deal with the matter. Clause 42 requires a proposal addressing the relevant considerations be developed. It then requires that it be provided to “all affected nursing staff” 17 before a period of consultation occurs. I am satisfied that without the proposal being provided in writing to all affected staff a fundamental step in the process has been disregarded. Accordingly, there can be no progression toward implementation of that proposal, regardless of its content or intent. It follows that it does not require a finding about the existence of a valid proposal or not, pursuant to clause 42.1(c), before coming to this conclusion.

[22] I therefore determine that the Respondent has not complied with the requirements of clause 42 and clause 42.3(b), in particular, in the context of its desire to change existing staffing arrangements in order to implement a new after hours service in various wards at the Alfred Hospital. I am satisfied on that basis alone that there can be no progression of that initiative at this time pursuant to clause 42.3(b)(i), (ii) and (iii).

COMMISSIONER

Appearances:

Mr E. White of Counsel appeared on behalf of the Applicant.

Mr P. Wheelahan of Counsel appeared on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

2 and 3 April.

 1   Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012 – 2016 (AE895073)

 2   Ibid at cl.42

 3   Exhibit AH1

 4   Ibid at page 1

 5   AE895073 at cl.42.1(c)

 6   Ibid at cl.42.3(c)

 7   Transcript at PN777

 8   Ibid at PN779

 9   Ibid at PN816

 10   AE895073 at cl.42.3(b)

 11   Transcript at PN944

 12   Ibid at PN1058

 13   Ibid at PN1060

 14   Ibid

 15   AE895073 at cl.42.1(b)

 16   Ibid at cl.42.3(b)

 17   Ibid

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