Australian Nursing Federation v Bairnsdale Regional Health Service
[2011] FWA 631
•10 FEBRUARY 2011
[2011] FWA 631 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Australian Nursing Federation
v
Bairnsdale Regional Health Service
(C2010/3176)
COMMISSIONER GOOLEY | MELBOURNE, 10 FEBRUARY 2011 |
Alleged dispute concerning staffing ratios in the Emergency Department.
Introduction
[1] The Australian Nursing Federation (ANF) notified a dispute to Fair Work Australia about the staffing of the Emergency Department (ED) at Bairnsdale Regional Health Service (BRHS). The dispute was referred to conciliation on 30 March 2010 and 28 April 2010 but the dispute was not able to be resolved.
[2] Due to the sharing of staff on Night Duty (ND) between the Gabo ward and the ED the staffing levels in the Gabo ward were also in dispute.
[3] Directions were issued for the filing of material and a hearing was held on 3 and 4 August 2010 in Bairnsdale. As part of the hearing an inspection of the ED and Gabo ward was conducted. A further hearing was held on 29 September 2010 in Melbourne.
[4] Mr Denis O’Callaghan appeared for the ANF and Mr Richard Corboy from the Victorian Hospital Industrial Association appeared for BRHS.
[5] Witness statements were provided for the following witnesses called by the ANF:
- Phillip Somerville Associate Charge Nurse ED BRHS 1
Mary Heard Registered Nurse ED BRHS 2
Dr Philip Sewell Visiting Medical Officer BRHS 3
Deborah Taylor Enrolled Nurse Gabo ward and ED BRHS 4
Shane Rickerby Industrial Relations Organiser ANF 5
[6] Witness statements were provided for the following witnesses called by BRHS:
- Wayne Sullivan Chief Executive Officer BRHS 6
Vicki Farthing Director of Nursing BRHS 7
Dr Ka Chun Tse Director of Medical Services BRHS 8
Julie Lawrence Interim Unit Manager ED BRHS 9
[7] Mr Rickerby was not required for cross examination. All the other witnesses supplemented their witness statements with additional oral evidence and were cross examined.
[8] Further documentary evidence was tendered by the ANF and BRHS.
[9] Submissions were filed on behalf of the ANF 10 and BRHS.11
The matter in dispute
[10] There are two matters in dispute between the parties:
- Staffing ratios in the ED; and
- Staffing ratios in the Gabo ward in particular whether Gabo ward is a high dependency unit.
The industrial instrument
[11] The ANF and BRHS are parties to and bound by the Nurses (Victorian Public Health Sector) Multi Business Agreement 2007 -2011 (the 2007 Agreement) 12. The Nurses (Victorian Public Health Sector) Multi Business Agreement 2004-2007 (the 2004 Agreement) was varied and extended pursuant to clause 2A(1)(a) and (b) of Schedule 7 of the Workplace Relations Act 1996 on 19 June 2009.
[12] The 2007 Agreement provides at clause 8 for the interpretation of the 2007 Agreement:
“8.1 This Agreement incorporates the Settlement between the Parties (as defined in the Deed entered into between the Parties dated 19 February 2008), and the provisions of the Nurses (Victorian Health Services) Award 2000 as at 15 December 2005, to the extent that such provisions are not inconsistent with the terms of the Settlement. Where clauses have been re-written and there is a dispute at a later date as to their intent or meaning, regard will be had to the antecedent documents and decisions arising from them.”
[13] The 2007 Agreement at Schedule C provides for nurse/patient ratios.
[14] Part 1A of Schedule C provides the ratios for general medical surgical wards, ante/post natal & aged care.
[15] Relevantly BRHS is a level 3 hospital for the purpose of these ratios and it is required to have the following ratios:
General Medical/Surgical | AM | 1:5 + I/C |
PM | 1:6+ I/C | |
ND | 1:10 |
[16] Part IB of Schedule C provides guidance for the interpretation of the ratios as follows:
“1 General Medical/Surgical Wards
(a) The following information is intended to assist in the interpretation of the methodology used to apply the nurse/patient ratios. Further, it is recognised that any application of the nurse/patient ratios must be flexible so that hospitals are able to adjust to variations in bed occupancy (up and down), subject to the meeting of the agreed nurse/patient ratios, and compliance with other requirements of this Agreement and employment contracts. The following information applies with respect to all ratios set out in Schedule C within wards and level 2 nurseries.
(b) The methodology used to apply the nurse/patient ratio needs to be consistent with the principle of ensuring that the number of nurses available is commensurate with the number of patients requiring care. Average occupancy may not reflect variations in patient numbers and therefore may not match staff to periods of peak demand.
(c) Consequently, the nurse/patient ratio should be calculated on actual patient numbers in a given ward or unit. If a hospital has a particular ward of 30 beds and only 26 beds are generally occupied, the four "unused" beds may only be used when additional staff are available to meet the ratio requirements.
(d) While the nurse/patient ratio set out in Schedule C will apply to the number of beds that are generally occupied, any occupancy of additional beds is subject to:
(i) additional beds being available; and
(ii) nurses being rostered to the level required to meet the nurse/patient ratio for the duration of the occupancy of additional beds.
In this context, "rostered" does not require the application of normal Award notice periods.
(e) Where demand requires fewer beds, staffing may be adjusted down or redeployed prior the commencement of shifts, subject to compliance with relevant provisions in awards, certified agreements or an individual's employment contract.
(f) Where the application of the nurse/patient ratio results in a number of nurses, plus an additional requirement of more than 0.5%, rounding up shall be required.
(g) Where the application of the nurse/patient ratio results in a number of nurses, plus an additional requirement of 0.5% or less rounding down shall be regarded as being in compliance with the ratio.
(h) Where the application of the nurses ratio results in a number of nurses, plus an additional requirement of 0.5%, prima facie rounding down shall occur. This is subject to the following safeguards:
(i) patient care is not to be compromised;
(ii) if the number of patients outside the nurse/patient ratio exceeds 50% of the requirement to appoint an additional nurse, a further nurse must be appointed.
(i) On night duty shifts, and in aged care wards, it may be appropriate to appoint a floater to make up the part nurse/patient ratio.
(j) The ratios in the Hospitals listed below may be reached with a mixture of Registered Nurses Divisions 1 and 2 and are not restricted to limitations on use of Division 2 nurses prescribed in clause 42.1.
(BRHS is one such hospital)
(k) Where there is a dispute pre-ratio staffing shall be taken as being indicative of patient care requirements, subject to the right of review by the hospital. Otherwise the prima facie position will be rounding down, to be determined by the hospital in the event of disagreement at the local level, subject to a right of review of the decision by the ANF through the Monitoring Committee.”
[17] Part IV of Schedule C sets the ratios for EDs as follows:
“Health services operating an Emergency Department will roster to those departments in accordance with the requirements described below for various Groups.
Group 3 and Group 4 Emergency Department staffing requirements are based on data for the immediately preceding 12-month history of presentations.
Where there is a seasonal fluctuation, a hospital may staff at the level of a particular Group for part of the year, and as another Group for the remainder or other part of the year, depending on the number and pattern of presentations.”
[18] Relevantly BRHS is in Group 2A. This requires a staffing level as follows:
Ratios | AM | 1:3 + In-charge+ Triage |
PM | 1:3 + In-charge+ Triage | |
ND | 1:3 + In-charge+ Triage |
[19] Part VI of Schedule C sets the ratios for High Dependency Units. High Dependency Units are not defined in the 2007 Agreement.
[20] For BRHS the ratios are as follows:
AM | 1:3 |
PM | 1:3 |
ND | 1:3 |
The determination and orders sought:
[21] The ANF seeks the following determinations in relation to the ED dispute:
1. There is a capacity of nine patients in the ED and that capacity is regularly reached particularly during the period of the PM shift.
2. Given that the capacity of the ED is nine patients, that the appropriate number of nurses to be rostered on each shift is five.
[22] The ANF seeks an order that BRHS increases the number of nurses rostered in accordance with the determination above.
[23] The ANF seeks the following determinations in relation to the Gabo dispute:
1. That Gabo Unit includes at least two HDU beds, or, in the alternative, at least two coronary care beds;
2. That given the status of the Gabo Unit, the appropriate number of nursing staff to be rostered on ND shift is three.
[24] The ANF seeks an order that BRHS increase the number of full time nursing shifts on ND from two and a half to three.
[25] In its submissions the BRHS asks Fair Work Australia to determine that BRHS has the responsibility to:
(1) manage its ED and to roster accordingly under the 2007 EBA; and
(2) determine the level of medical services it offers.
[26] Further BRHS submitted that the area in BRHS previously known as HDU should not be recognised or identified as such. The ratios would only apply if there was a HDU established in the future or if agreed at the local level these HDU ratios apply only when there is a patient of higher nursing need recognised by BRHS occupying the monitored bed.
Jurisdiction of Fair Work Australia
[27] It is not disputed that the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provides Fair Work Australia with the jurisdiction to deal with this dispute.
[28] Consequently Fair Work Australia exercises jurisdiction pursuant to section 170LW of the Workplace Relations Act 1996 as it stood prior to 26 March 2006.
[29] It is not in dispute between the parties that this is a dispute over the application of the Agreement and that Fair Work Australia has the power to arbitrate the dispute.
[30] The 2007 Agreement provides at clause 11 for the resolution of disputes about a matter arising under this Agreement in accordance with the provisions set out in clause 11. It is not disputed that the procedures in clause 11 have been complied with. Clause 11.8 provides that the Commission, and therefore Fair Work Australia, is able, if requested by a party, to determine the dispute by arbitration. Such a request was made by the ANF.
[31] A Full Bench of Fair Work Australia in Deakin University v S Rametta 13 discussed the power of Fair Work Australia to make orders pursuant to section 170LW of the Workplace Relations Act 1996.14 It held that the dispute resolution procedure authorised Fair Work Australia “to make decisions as to the legal rights and liabilities of the parties to the Agreement and to give an opinion as to whether the actions or conduct (of the parties involved in the dispute) accords with the provision(s) of the Agreement and whether it has been applied in accordance with its terms.”15
Characterisation of the dispute
[32] It is not contested that this is a dispute about the application of the 2007 Agreement. Clearly a dispute over how the staffing ratios apply in the ED and the Gabo ward at BRHS is a dispute over the application of the Agreement.
THE ED DISPUTE
Evidence not in dispute between the parties
[33] There was no dispute that the ED comprises nine treatment areas. There are six cubicles which include the resuscitation area which can hold two patients and five other cubicles. While there could be two patients in the resuscitation room it only contains one trolley most of the time. 16 In addition there is a plaster room, a seclusion room and a treatment room. There is also a triage assessment room. The triage assessment room was not counted as a treatment area in this dispute.
[34] Triage is a process whereby the patient is examined by a triage nurse and categorised. A category 1 patient (resuscitation) must be seen by a doctor immediately; a category 2 patient (emergency) must be seen by a doctor within ten minutes; a category 3 patient (urgent) must be seen by a doctor within thirty minutes; a category 4 patient (semi-urgent) must be seen by a doctor within sixty minutes; and a category 5 patient must be seen by a doctor within one hundred and twenty minutes.
[35] When a patient presents to the ED she or he is triaged and is either placed in a cubicle for treatment or returned to the ED waiting room until she or he is admitted to a cubicle for treatment. The triage nurse oversees the patients in the waiting room. There is no limit to the number of patients a triage nurse may be supervising in the waiting room. The triage nurse must monitor the patients in the waiting room regularly and if necessary re-triage them if their condition deteriorates.
[36] While a patient is admitted to BRHS when they attend the ED and see the triage nurse she or he is not treated as a patient for the purposes of the ratio until she or he is admitted to a cubicle for treatment.
[37] The following categories of patients presented to the ED at BRHS from 1 July 2008 to 31 March 2009 17:
Table 1
Category 1 | .3% |
Category 2 | 3.3% |
Category 3 | 25.6% |
Category 4 | 53.3% |
Category 5 | 17.4% |
[38] Figures 18 were also provided which showed the distribution of the ED presentations for 2009/10 across the days of the week as follows:
Table 2
0000-0700 | 0700-1530 | 1530-2300 | 2300-2400 | Total | % of annual attendances | |
Monday | 203 | 1433 | 895 | 49 | 2580 | 15.35 |
Tuesday | 214 | 1224 | 883 | 59 | 2380 | 14.16 |
Wednesday | 195 | 1192 | 881 | 51 | 2319 | 13.79 |
Thursday | 175 | 1134 | 885 | 54 | 2248 | 13.37 |
Friday | 211 | 1228 | 802 | 63 | 2304 | 13.70 |
Saturday | 262 | 1219 | 851 | 56 | 2388 | 14.20 |
Sunday | 304 | 1326 | 904 | 59 | 2593 | 15.42 |
Total | 1564 | 8756 | 6101 | 391 | 16812 |
[39] These figures showed that the busiest time in the ED in terms of presentations was between 0700 and 1530 when 52.08% of presentations occurred. The next busiest was between 1500-2300 when 36.29% of presentations occurred and the least busy time was between 2300-0700 when 11.63% of presentations occurred. 19
[40] Figures 20 were also provided for 2009/10 which showed the times of separation from the ED as follows:
Time | Total Number | % of total separations |
0000-0700 | 2099 | 12.86 |
0700-1530 | 6577 | 40.29 |
1500-2300 | 7092 | 43.44 |
2300-2400 | 558 | 3.42 |
Total | 16326 |
[41] Separations during the night shift totalled 2657 or 16.27% of separations.
[42] Currently the ED is staffed on the basis that there are six patients in the ED during the AM and PM shifts. Therefore there are two nurses plus one triage nurse and one nurse in charge. For ND there are 2.5 nurses on duty. This includes the triage nurse and the nurse in charge. The .5 nurse is rostered in Gabo ward for the other half of the shift. 21
[43] It is accepted by BRHS that, even if their submissions are accepted by the Tribunal, the minimum number of staff that should be rostered on ND is three which is one nurse plus a triage nurse and a nurse in charge.
The evidence of the ANF
[44] The ANF submitted that, as the ED has a capacity for nine patients, there should be three nurses rostered plus a nurse in charge and a triage nurse on each shift, seven days per week. 22
[45] The ANF’s evidence was that all nine treatment areas in the ED are used. 23 The ANF produced figures derived from data provided by BRHS to support their submission that the number of patients being treated at times exceeds six and has at times at times exceeded nine patients.24
[46] Mr Somerville is a registered nurse with significant experience. He has worked permanently in the ED at BRHS from 2006. It was his evidence that he had never been instructed to limit the number of patients being treated during the AM and PM shifts to six. 25 Mr Somerville, when in charge of the AM and PM shifts, allocates one nurse to the resuscitation cubicle and cubicles 3 and 4, another to cubicles 5,6 and 7 and one nurse to the back three cubicles. He is then both triage nurse and nurse in charge on these shifts.26 It was his evidence that when he is on the ND shift it is not unusual for the front areas of the ED to be full and to have people still waiting in the waiting room.27 It was his evidence that they are unable to get the Gabo ward nurse to attend the ED before midnight and at the end of the night shift and this is when the ED is busiest.28
[47] In cross examination Mr Corboy put to Mr Somerville the figures relied upon by BRHS to support BRHS’s submissions that the number of presentations do not warrant the number of staff sought by the ANF. Mr Somerville’s response was that the figures at table 1 were largely meaningless. He said that what was needed was “a statistical analysis of the times that those categories are actually in beds... in terms of nursing hours per bed that are required for those different categories.” 29 It was his evidence that categories 2 and 3 spend more time in beds in the ED than categories 4 and 5 and “even though they’re underrepresented in presentations, they’re overrepresented in bed hours and that explains the discrepancy to a large extent.”30
[48] Mr Somerville did not resile from his views about the figures presented by the BRHS. 31
[49] Ms Heard is a registered nurse with significant experience. She has worked in the ED at BRHS for the past seven years. 32
[50] It was her evidence that, while on the ND shift, the Gabo ward nurse was usually not in the ED for the first four hours of the shift and at the end of the shift. 33 It was her evidence that the evening shift is the busiest time in the ED and when she comes on for night shift there are “often four to five patients in the ED and some in the waiting room.”34 She said that sometimes the supervisor will assist but not all supervisors are ED trained and therefore their assistance is limited.35 It was her evidence that on half of the PM shifts the six cubicles and the three other treatment areas are occupied by patients.36 She also said she had never been directed to limit the number of patients admitted to the ED to six.37
[51] Further it was her evidence that you could not limit the number of patients being treated to six because if you have more than six people who are category 2’s and 3’s “you can’t put them in the waiting room.” 38 She said that if the patient is category 1 or 2 then she or he is taken straight in and if she or he is category 3 she leaves her or him in the triage room while she discusses with the nurse in charge what should happen. Category 4 and 5 are left in the waiting room until a doctor is available.39 Ms Heard also pointed out that category 4 and 5 patients have to, at some point, come into the department to be treated.40 She also gave evidence that they “frequently take patients out of cubicles and rearrange the place and put them outside when there’s a higher urgency.”41
[52] Dr Sewell is a medical practitioner and a visiting medical officer at the BRHS. He has been at BRHS for the last eight years. It was his evidence that he has seen more than six patients in the ED on multiple occasions. 42 It was also his evidence that it would not be realistic to limit the number of patients to six.
[53] Ms Taylor is an enrolled nurse who has extensive experience. She has worked at BRHS for fourteen years and for the last nine years she has worked the ND shift. Her work is split between the Gabo ward and the ED. It was her evidence that she commences her shift in the Gabo ward where she receives handover and then relieves tea breaks in the ED and the Gabo ward and is back in the Gabo ward for the morning handover. 43 It was her evidence that she is generally unable to leave the Gabo ward due to workloads and if she is not able to attend the ED then the supervisor attends in her place.44 It was her evidence that when she attends the ED there are six or more patients present.45
[54] The ANF tendered a graphical representation of the ED occupancy for the first week of each month from July 2009 to June 2010. 46 Mr O’Callaghan explained that the graph was derived from the raw data provided by BRHS and the ANF counted the number of patients in the ED and the number of patients being treated at each half hour.47 So a patient who was admitted at 1.10 and discharged at 1.15 would not have been included. 48 Mr O’Callaghan submitted that the ANF data underrepresented the number of patients in the ED.
[55] Mr Rickerby’s statement exhibited a number of documents.
[56] The ANF tendered evidence about staffing levels in the ED at Sale and East Gippsland Hospitals to support its claim for additional staffing.
The evidence of BRHS
[57] Mr Sullivan, the CEO of BRHS, has extensive nursing and management experience. He has been the CEO since November 2007. It was his evidence that BRHS “only expect and require the utilising of six cubicles in morning (AM) and afternoon (PM) shifts and four cubicles on night shift (ND).” 49 It was his evidence that staff do not comply with this and will admit patients to other areas. It was his evidence that “there is no clinical or operational need for more than six cubicles to be utilised” and “should demand dictate we have capacity to operate more than six and would staff accordingly.”50
[58] It was his evidence that the ratios in the 2007 Agreement are patient to staff ratios and in the ED it is cubicles to nurse ratios. 51
[59] It was his evidence that the 50% rule applied to the ED and therefore there was sufficient staffing on the AM and PM shifts for seven cubicles to be used and for the ratios to be complied with. 52 It was his evidence in cross examination that there was capacity to provide additional staffing from other wards and departments if the ED had excess demand.53 It was his view that it is “easier to staff up for the exception than to staff for the exception.”54
[60] Ms Farthing is a registered nurse with extensive experience who has worked at BRHS since 2004. She has been the Director of Nursing since October 2008. It was her evidence that the number of patients presenting to the ED do not warrant the number of staff sought by the ANF. 55
[61] She gave evidence that she had developed an ED patient flow protocol (the protocol) for managing the ED 56 where nurses work six cubicles on AM and PM shifts and four cubicles on night shift. It was her view that the other treatment areas should only be used in exceptional circumstances. It is her view that if the cubicles are full, and there is a need to admit a higher category patient than category 4 or 5, patients should be sent back to the waiting room.57 It was Ms Farthing’s evidence that she discussed the protocol with the interim nurse unit manager and that the interim nurse unit manager had discussed the protocol with the ED staff.58
[62] Attached to Ms Farthing’s witness statement 59 were graphical representations of presentations to the ED for November and December 2009 and January 2010. The tables show each patient by category, the time she or he presented to triage, the time she or he was admitted to a cubicle for treatment and the time of discharge.
[63] It was Ms Farthing’s evidence that the decision, that BRHS operate to six cubicles on the AM and PM shifts and four on the ND shift, was based on historical data of presentations to the ED over the last three financial years. 60 She also gave evidence that if there was a need for additional staff that staff could be provided to the ED.61
[64] Ms Farthing was critical of the ANF data 62 as she said it did not disclose categories of patients and it was her evidence that an examination of the raw data disclosed inaccuracies in the ANF data.63 She did not provide any examples of these inaccuracies and no submissions were made that pointed to any inaccuracies.
[65] Ms Lawrence is a registered nurse with extensive experience who has been employed at BRHS from 2006. She was the Unit Manager of the Gabo ward and from April 2010 was the Interim Unit Manager in the ED.
[66] It was her evidence that when she is on duty she works six cubicles and staff accordingly. She gave evidence that at times of high demand patients are admitted to the other treatment areas. 64 Ms Lawrence’s evidence was that she has never been given a directive to limit the number of patients to six.65 It was her evidence that such a directive would be “potentially life threatening to quite a few people that came in and incredibly distressful for myself and my staff.”66 Ms Lawrence had seen the protocol for the ED but she had not discussed the protocol with the ED staff.67
Submissions of the ANF
[67] The ANF submitted that traditionally EDs had been staffed on the number of cubicles because number of cubicles reflected the anticipated patient demand. The other treatment areas were used for more specialist interventions after which the patient was returned to a cubicle. However due to increased demands, EDs treat the other patient treatment areas as cubicles and where this occurs the ED should be staffed as though the treatment areas were cubicles.
[68] It was submitted that at BRHS the nine treatment areas are frequently filled to capacity particularly on the PM shift. The ANF also submitted that BRHS had not limited the number of patients admitted to the ED. The ANF submitted that BRHS has never directed the nurses in the ED not to admit more than six patients.
[69] The ANF submitted that it is open for the Tribunal to conclude that the ratios apply to cubicles, not patients, and as there is no definition of cubicle in the 2007 Agreement, a broad definition should be given.
[70] In response to the statistical evidence of the BRHS, the ANF submitted that their analysis showed that “there are generally seven peaks. There are sometime eight peaks, but on those seven days there are frequently seven peaks. At those times of the seven peaks are times when it is most likely that the emergency department is at greater than a capacity - or a number of patients greater than six.” 68 It was submitted that the peak tended to occur across the PM shift.
[71] The ANF submitted that the BRHS knows that there is a reasonable likelihood that the number of patients will exceed six. 69
[72] In response to the submissions of BRHS that the afterhours co-ordinator can be brought in to assist on the ND shift if the numbers go over four, the ANF submitted that this person cannot count towards the ratio as they are supernumerary. No detailed submissions were put on this issue.
[73] The ANF also submitted that the 50% rule has no application in the ED but made no detailed submissions on this point.
Submissions of BRHS
[74] It was BRHS’s primary submission that it is the responsibility of BRHS to determine the number of treatment areas in the ED. 70 BRHS submitted that the pattern of presentations to the ED did not support the ANF’s claim.
[75] Mr Corboy submitted that the Tribunal in determining this dispute can have regard to the previous decisions of the Australian Industrial Relations Commission about nurse patient ratios. Mr Corboy referred to the decision of Commissioner Blair on 31 August 2000 71 and two subsequent recommendations of Commissioner Blair on 13 March 200172 and 27 March 2001.73 He also referred to a further decision and recommendation of Senior Deputy President Watson on 13 December 2001.74
[76] Mr Corboy said that the ratios refer to patients not beds. 75 Mr Corboy further submitted that in applying the ratios a 50% rule applies.76 So for example if there are seven patients in the ED then a 1:3 ratio requires 2.33 staff. As .33 staff is less than .5 staff there is no need to roster an additional nurse. However if there were eight patients, then the number of staff required is 2.67 staff. As .67 staff is more than .5 staff an additional nurse would be required. He further submitted that using the preceding twelve month history of presentations to determine the appropriate ratios was consistent with those recommendations.
[77] Mr Corboy submitted that the industrial instrument does not require that all cubicles be maintained and staffed. 77 He further submitted that the data relied upon by the ANF to support its claim that all nine treatment areas were used was either emotional or skewed.78 He submitted that the evidence shows that the number of actual bed numbers at eight or above was in a very small period of time.79
[78] Mr Corboy submitted that it was unreasonable to require BRHS to staff to a maximum contingency. He submitted that it was uncontested evidence that the average number of presentations for the night shift was six. He submitted that the ANF witness evidence was unreliable. 80
[79] Mr Corboy submitted that if the number of patients being treated exceeded four on the ND shift, the afterhour’s co-ordinator should be contacted. He submitted that during the AM and PM shifts there are additional staff who can be called upon to work in the ED if the number of patients being treated exceeded seven.
[80] Mr Corboy submitted that, given 70% of presentations to the ED are non urgent, the protocol proposed by Ms Farthing would see the ED properly manage its workload within the triage protocols. While not expressly put in Mr Corboy’s submissions it was BRHS’s contention that there were times when the number of patients in the ED exceeded six (or seven) because category 4 and 5 patients were being admitted when they could have been made to wait under the supervision of the triage nurse for a longer period. 81
Principles of Construction
[81] Vice President Lawler set out detail in Watson v ACT Department of Disability Housing and Community Services the legal principles to be adopted when construing awards and agreements. 82 A Full Bench in The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited83 cited Vice President Lawler with approval and made reference to the decision of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited.84 Logan J said:
“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language.”
[82] The Full Bench concluded that “the extract from Watson and the approach of Logan J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may be properly understood.”
[83] I adopt the approach endorsed by the Full Bench.
History of the Clause
[84] Commissioner Blair’s initial recommendation 85 arose from an industrial dispute about nurse patient ratios. In that decision Commissioner Blair recommended that Accident and Emergency Departments be staffed as follows:
“AM shift | 1:3 + In Charge + Triage |
PM Shift | 1:3 + In Charge + Triage |
ND Shift | 1:3 + In Charge + Triage” |
[85] In that decision Commissioner Blair included the following safeguard:
“3. Possible resolution (there would need to be discussion with the ANF) could include, where appropriate, where patient care would not be compromised:
(i) In some instances the number of patients in a ward may not be equally divisible by the ratio (e.g. a 1:4 ratio in a 30 bed ward would result in a need for 6.5 nurses.) Where the number of patients outside the ratio exceed 50% of the requirement to appoint an additional nurse, a further nurse must be appointed. The Agreement Implementation Committee could decide. Where the number of patients outside the ratio is 50% or less and where patient care would not be compromised, agreement could be reached to appoint for example, 6 nurses rather than 7.
(ii) On some night duty shifts, and in aged care wards, it may be appropriate to appoint what the Commission understands to be called a floater to make up the part ratio, for example in two wards each of 22 beds, 5 nurses are to be appointed in each ward plus a nurse “floating” between the two wards.”
[86] In his recommendation of 13 March 2001 86 Commissioner Blair amended the ratios for Category B & C Hospitals as follows:
“3. The amended ratios for Category B & C Hospitals are as follows:-
- In small hospitals that have Accident and Emergency Departments where there a less than four presentations per shift there should be two RN Div 1s plus one “floater” per shift as staffing for that facility including Accident and Emergency. The “floater” may be a RN Div 1 or Div 2. In these hospitals there is no dedicated staff rostered in Accident and Emergency Departments.
- Where there are four presentations but less than 12 presentations per shift there should be one RN Div 1 plus one RN Div 1 in charge per shift rostered in Accident and Emergency.
- Where there are between 13 and 20 presentations per shift there should be two RN Div 1’s plus one RN Div 1 in charge per shift in Accident and Emergency.
- If there are more than 20 presentations per shift there should be three RN Div 1’s plus one RN Div 1 in charge in Accident and Emergency.
- The staffing profile referred to in clauses 2, 3 and 4 must be on a dedicated basis for the whole of the shift.
- In hospitals where seasonal adjustment is not required, the ratios should be based on the average presentations over the previous 12 months for each shift i.e. AM, PM and Night Duty.”
[87] In his recommendation of 27 March 2010 87 Commissioner Blair made recommendations about the ratios but this decision did not deal with accident and emergency departments. However Commissioner Blair found that the parties “are not seeking to staff unoccupied beds.”88
[88] On 23 August 2001, a Heads of Agreement was signed by the parties. While this document was not in evidence before me at the hearing I requested a copy from the parties as it was referred to in the subsequent recommendation of Senior Deputy President Watson.
[89] That document provided as follows at clause 1:
“The amended ratios annexed and marked “A” to the Agreement will apply throughout public health sector agencies, for which provision is made in the annexure, for the life of the section 170LC certified agreement (“MECA”) which is to be made to give effect to the Agreement, the amended ratios, the non ratio recommendations in print S9958 and subsequent recommendations, statements or purported orders of Commissioner Blair except as provided for in paragraph 2 of the Agreement.”
[90] The Heads of Agreement provided that for non group 1 hospitals EDs with more than 5000 presentations per annum that the ratios were as follows:
“AM | 1:3 plus In Charge |
PM | 1:3 plus In Charge |
ND | 1:3 plus In Charge |
Where these units have previously had a triage nurse these positions remain.
Ratios refer to nurses required for the average number of patients in the unit at any one time. To be based on previous twelve month history of presentations and the total number of patient hours per shift.”
[91] The Heads of Agreement did not mention the 50% rule.
[92] In his decision and recommendation of 13 December 2001 89 Senior Deputy President Watson said that the Heads of Agreement reflected and incorporated the recommendations of Commissioner Blair in PR902692.
[93] One issue that arose for consideration by Senior Deputy President Watson was whether the “principles set out as a note to the Heads of Agreement Agreed Nurse-Patient Ratios for General Medical/Surgical Wards applied to all ratios unless otherwise specified or to general medical/surgical wards only.”
[94] Senior Deputy President Watson said “The application of the principles reflected in my recommendation extends the principles to other ratios where there is little contention but not generally. I have declined to apply the principles generally on the basis that the discussion and submissions in relation to other possible areas (other than areas specifically dealt with) in the circumstances in other areas. In my view it would be unwise to apply a general principle to such areas in the absence of specific information.” 90
[95] Further in relation to accident and emergency Senior Deputy President Watson relevantly provided that:
“[52] The night duty presentations formula applies only to Group 1 Accident and Emergency Departments as per Heads of Agreement. Group 1 staffing levels are adjusted for presentations and cubicle/trolley occupancy for the immediate preceding 12 month period. If an accident and emergency facility has a designated short stay admission area (or areas), ward ratios shall apply where full assessment and admission has occurred, in respect of such patients.
[53] Group 2 staffing requirements reflecting presentations and cubicle/trolley occupancy or average patient numbers relate to "per shift", and are based on data for the immediate preceding 12 month history of presentations.
[54] Funding issues as between hospitals and DHS arising from data or the year upon which funding was allocated, and ratio requirement based on data for the immediate preceding 12 month period, and other issues arising from variations in activity levels, are a matter for resolution between the hospitals and DHS. The resolution of funding issues between the DHS and the hospitals will not affect the staffing obligations arising from the Heads of Agreement.
[55] Where there is a seasonal fluctuation, a hospital may staff at the level of a Group 3 category hospital for part of the year, and as a Group 2 category hospital for part of the year, depending on the number of presentations. 91”
[96] The parties then entered into an agreement namely the Nurses (Victorian Public Sector) Multiple Employer Agreement 2000-2004 92 (the 2000 Agreement) which was certified on 7 April 2003.
[97] Schedule C of the 2000 Agreement dealt with nurse patient ratios.
[98] Part 1B of the Schedule C is headed interpretation. Clause 1 of Part 1B is headed general medical/surgical wards. Subclause 1(a) provides that “the information applies with respect to all ratios set out in Schedule C within wards and level 2 nurseries.”
[99] Sub-clauses 1(f), (g) and (h) of Part 1B set out the 50% rule.
[100] There is no suggestion that the provisions in Part 1B apply to EDs.
[101] Relevantly the 2000 Agreement provided at Schedule C Part IV as follows:
“Group 2
Accident and Emergency Departments not in Group 1 with over 500 presentations per annum.
AM | 1:3 plus In Charge |
PM | 1:3 plus In Charge |
ND | 1:3 plus In Charge |
Where these units have previously had a triage nurse these positions remain.
Group 2 staffing requirements reflecting presentations and cubicle/trolley occupancy or average patient numbers relate to “per shift”, and are based on data for the immediate proceeding 12 month history of presentations.”
[102] A replacement agreement was made in 2005 namely the Nurses (Victorian Public Sector) Multiple Employer Agreement 2004-2007 (the 2004 Agreement).
[103] There was no change to Schedule 1B clause 1 or to the ratios in the ED.
[104] The 2007 Agreement changed BRHS’s ED from group 2 to group 2A but this change is not relevant to this application.
[105] Schedule C Part IV provides as follows:
“Health services operating an Emergency Department will roster to those departments in accordance with the requirements described below for the various Groups. Group 3 and Group 4 Emergency Department staffing requirements are based on data for the immediately preceding 12-month history of presentations. Where there is a seasonal fluctuation, a hospital may staff at the level of a particular Group for part of the year, and as another Group for the remainder or other part of the year, depending on the number and pattern of presentations.”
[106] The words at the end of paragraph [102] above are not included in the 2007 Agreement. As such, there is no longer a provision in Part IV that sets out how staffing requirements for group 2A hospital EDs are to be calculated. Neither party explained this omission.
Findings
[107] The starting point in resolving a dispute over the application of the 2007 Agreement is the 2007 Agreement itself. The ratios in the 2007 Agreement for the ED are clear. What is in dispute is how you count patients and whether the 50% rule applies.
[108] It is clear that a patient admitted to the ED as part of the triage process does not count for the purpose of the ratios until she or he is admitted to a cubicle for treatment. Prior to that the patient is under the supervision of the triage nurse.
[109] It is submitted that clause 8.1 of the 2007 Agreement directs me to the decisions and recommendations of Senior Deputy President Watson and Commissioner Blair. I consider that those decisions are part of the context which I must have regard to when settling this dispute.
[110] BRHS submitted that it has six cubicles in the ED and that patients should only be admitted to those six cubicles during the AM and PM shifts. BRHS contend that if the protocol prepared by BRHS was complied with then the need to admit patients to the three other treatment areas would be minimised. Further BRHS contend that, on the basis of the presentations over the previous twelve months, additional staffing is not warranted.
[111] It is clear that some staff in the ED treat the seclusion room, the plaster room and the treatment room as equivalent to the cubicles. It was Mr Somerville’s evidence that when he is in charge he allocates a nurse to these treatment areas as a matter of course and deals with the staffing shortfall by doing the triage and in charge jobs himself.
[112] It is also clear that other staff attempt to limit the number of admissions to six but that this is not always possible.
[113] I accept the contentions of BRHS that it cannot be required to staff to the maximum capacity of the ED.
[114] I have examined the data provided by both the ANF and BRHS and while the data shows that there are times when there are more than six patients in the ED this is not the normal pattern. I accept the data of the ANF that there will be an occasion on each day that the number of patients admitted to the ED is more than six.
[115] While I accept the evidence of the ANF witnesses that category 4 and 5 patients must eventually be treated, I also accept that the data produced by BRHS shows that category 4 and 5 patients are admitted to the ED when there are already six patients being treated. It is BRHS’s contention that this should not occur and that category 4 and 5 patients should remain in the waiting room until a cubicle is free.
[116] I accept that if the protocol was adopted this would limit but not eliminate the number of times that there would be more than six patients being treated.
[117] While BRHS is entitled to develop a protocol to deal with admissions to the ED the difficulty arises when the category 4 and 5 patients have already been admitted to a cubicle and a higher category patient arrives. The protocol provides that the Nurse in Charge is to contact the Nursing Co-ordinator on duty to determine staffing resources required to access necessary staff.
[118] BRHS gave evidence that these patients can be returned to the waiting room once their treatment has commenced if a higher category patient needs admission. While that is a decision that needs to be made by the treating staff there is nothing in the 2007 Agreement that would treat these patients as not counting for the ratios. These patients are not in the same category as those who are under the supervision of the triage nurse and whose treatment has not begun. These patients have been admitted to the ED for treatment and I find therefore that they must continue to count towards the ratio until they are either discharged home or to a ward or transferred. BRHS agreed with this contention. 93
[119] BRHS submitted that it is able to limit the number of cubicles on the ND shift to four and only roster three nurses (including the triage nurse and the nurse in charge).
[120] I find that BRHS is entitled to close beds or in this case cubicles. But if there are four cubicles in use then BRHS’s submission about the number of nurses required to be rostered to comply with the ratios is only correct if the 50% rule applies to the ED.
[121] The ANF submitted that the 50% rule did not apply to the ED. 94 BRHS submitted that the 50% rule applies to the ED.95
[122] Sub clauses 1(f), (g) and (h) of Schedule C Part 1B set out the 50% rule. There is nothing in Part 1B clause 1 which suggests that these provisions apply to EDs as the ED is not a ward or a level 2 nursery. A reading of clause 1 in its entirety supports the contrary conclusion. For example sub clause 1(c) makes it clear that staffing should be on actual patient numbers yet the ED at BRHS is rostered on average patient numbers. Under clause 1 additional beds can only be utilised if there are staff rostered to work. The ED at BRHS cannot turn away patients and must admit patients even if additional staff are not available.
[123] There is nothing in the predecessor decisions which assist in determining if the 50% rule applies to EDs. Further, given the previous dispute about whether provisions said to apply to medical and surgical wards also applied more generally it would be expected that had the parties intended this provision to apply to all areas, they would have said so. On the basis of the material before me I find that the 50% rule does not apply to EDs and therefore it is not strictly necessary to determine if BRHS is entitled to restrict the admissions to the ED to four on the ND shift as the number of staff required will be the same as if six cubicles are in use.
[124] However if I am wrong about the 50% rule, then it is necessary to determine if BRHS is entitled to restrict the number of cubicles in use on the ND shift.
[125] BRHS contend that it does not need to admit patients to more than four cubicles on the ND shift. I accept BRHS’ contentions that it is not the role of this Tribunal to dictate how many beds or in this case treatment areas the BRHS must provide or how many patients it must treat at any one time. If BRHS wishes to close ED cubicles on ND shift it is able to do so. However it must actually close them and its directions in this regard must be clear for if it permits patients to be admitted to more than 4 cubicles then it must staff the ED accordingly.
[126] There is nothing in the protocol which limits the number of cubicles on the ND shift to four patients. If the ND shift uses the six cubicles then it must be staffed accordingly.
THE GABO WARD DISPUTE
[127] The parties are in dispute about whether the Gabo ward includes a high dependency unit (HDU). There is no definition of HDU in the Agreement.
Evidence of the ANF
[128] Ms Heard gave evidence that the “installation of medical monitoring equipment for high dependency patients in that area of the Gabo ward has always been referred to as high dependency. 96 Ms Heard accepted that the high dependency category is about the patient and not the beds.97 Ms Heard has not worked in the Gabo ward for seven years.
[129] Dr Sewell gave evidence that he admits patients to the HDU in the Gabo ward. It was his evidence that he admits to the Gabo ward cardiac patients for monitoring. 98 He also said that the monitored beds are used for post operative bowel resection patients. He also has admitted patients following major abdominal surgery.99 He gave evidence that most heart attack patients are transferred immediately to another hospital after their initial treatment but if transfer is not possible the patient is kept at BRHS.100
[130] Ms Taylor gave evidence that the Gabo ward HDU patients are generally located in Room 2, Beds 1 and 2. The beds are used for anyone who needs frequent and specialised care. The HDU patients have multiple tubes for input and output. 101 Ms Taylor gave evidence of the type of patients treated in these beds.102 She also gave evidence that some cardiac patients are transferred to the Gabo ward from the ED while they are awaiting transfer to another hospital or if they do not have “a real serious heart attack” they can stay in the Gabo ward.103 In cross examination Ms Taylor accepted that the need for monitoring is based the needs of the patient.104 Ms Taylor also accepted that patients requiring ICU, or surgery or higher levels of care are transferred out to other hospitals.
[131] Mr Somerville worked in the Gabo ward over four years ago. It was his evidence that he nursed high dependency patients in the Gabo ward. He distinguished these patients from those in the general beds as follows:
“The patients on the monitored beds were ones who were suffering from acute coronary syndromes or other acute physiological states where they required either intensive monitoring or support of their circulatory or respiratory status.” 105
[132] Mr Rickerby exhibited a number of documents which the ANF submitted supported their contention that the Gabo ward had high dependency beds including advertisements for staff for the Gabo ward which described it as having two HDU beds. 106
[133] This is how BRHS described the Gabo ward.
“Gabo has two high dependency beds with provide specialised continuous monitoring equipment. These beds are utilised by all other BRHS wards when patients from their areas become unstable and require more intensive specialised nursing care.” 107
[134] As late as 26 March 2010 BRHS advertised for an Associate Nurse Unit Manager for the Gabo ward and described it as having two HDU beds. 108
[135] Further the Victorian Health Department as late as 30 March 2010 listed BRHS as having an adult coronary care unit level 2.
Evidence of BRHS
[136] Mr Sullivan’s evidence was that BRHS does not have a HDU. He accepted that they have historically called the two monitored beds in the Gabo ward the HDU. 109 It was his evidence that it is not a HDU because BRHS does not have appropriate specialist medical staff. It was his evidence that until 2005 there was a medical physician who provided medical consultant services to the BRHS but even at this time the monitored beds did not meet the criteria for a HDU.110 It was his evidence that the Department of Health does not consider that BRHS has HDU.111
[137] Mr Sullivan’s evidence was that if a HDU patient was unable to be transferred out they would be “special” until transferred. This means the patient either has a nurse designated to look after her or him or a nurse may have his or her patient load reduced to enable the patient to be cared for. 112
[138] Ms Farthing also gave evidence that BRHS did not have a HDU. She had examined the figures on bed occupancy in the Gabo ward. She said that patients who are admitted for one day and then discharged home would not be HDU patients. 113 Ms Farthing accepted that HDU patients cannot always be transferred immediately.114 Ms Farthing accepted that there was a HDU patient about once a week.115 Ms Farthing also rejected the evidence called by the ANF that these beds are like a coronary care unit.116
[139] Ms Farthing in cross examination accepted that BRHS would have coronary care unit type patients but said that BRHS does not have a registered HDU or CCU. 117 She could not explain why BRHS’s HDU was included in the EBA.118 Ms Farthing also accepted that a document headed “Making the Clinical Instability Call”119 had recently been changed to remove incorrect terminology.120 This document had previously referred to the HDU beds in the Gabo ward. Ms Farthing’s evidence was that calling it a HDU did not make it a HDU.121It was her evidence that these are monitored beds not HDU beds.122
[140] Dr Tse’s evidence was that BRHS had traditionally described the two monitored beds in the Gabo ward as HDU but it was his evidence that they did not qualify as HDU though there were times when there are patients in the beds that require a higher level of nursing. 123
[141] It was his evidence that a HDU needs to comply with the guidelines from the College of Intensive Care Medicine of Australia and New Zealand and the BRHS does not comply. 124
[142] He also disputed Dr Sewell’s comments about the nature of the patients in the Gabo ward monitored beds. 125 It was his evidence that bowel resections are only conducted at BRHS if the patient is assessed as being at a relatively low risk of high dependency care or intensive care.126
[143] He also rejected Dr Sewell’s evidence that BRHS provides services similar to a coronary care unit. It was his evidence that there would need to be a significantly higher level of input from specialist cardiologists for BRHS to provide such services. 127
[144] He accepted in cross examination that a higher level of care may be needed depending on the patient’s condition. 128 He also accepted that clinically unstable patients were admitted to those beds.129 It was put to Dr Tse that the guidelines he referred to were not guidelines about what a HDU was, rather, they were guidelines for the training of intensive care medicine trainees. His response was that the guidelines served a dual purpose.130
[145] Ms Lawrence gave evidence that historically the two monitored Gabo ward beds were referred to as HDU but it was her evidence that it was not a HDU. She gave evidence that at times if BRHS has a patient that needs a higher level of nursing care she or he was placed in these beds. Some of the procedures are associated with a HDU but this is about once a week. Unstable or seriously ill patients are transferred out provided there is transport and a HDU/ICU bed available.
[146] In cross examination Ms Lawrence agreed that the Gabo ward does treat HDU type patients 131 but it was not a HDU. It was her evidence that it was always advertised as a HDU.132
Submissions of the ANF
[147] The ANF submitted that the Gabo ward consists of 18 beds of which two are HDU beds. BRHS had been included in the HDU ratios since Commissioner Blair’s decision. The ANF further submitted that BRHS itself acknowledges that it has a HDU through job advertisements, position descriptions and internal protocols.
[148] Alternatively the ANF submitted that the Gabo ward provides coronary care services and that the Department of Health acknowledges the provision of such services.
[149] The ANF submitted that on night duty the ratio in the Gabo ward should be 1.10 which would require two nurses for the 16 non HDU beds and 1:3 for the HDU beds which would require one nurse. The ANF accepts that the 50% rule applies to HDU.
[150] The ANF submitted that at the time the first agreement was made only hospitals which had a HDU were listed and assigned a ratio. 133
Submissions of BRHS
[151] BRHS accepted that two beds in the Gabo ward have traditionally been called HDU and that these two beds provide a higher level of nursing skill and attention for patients who require that level of nursing. 134 However BRHS submitted that this service is not recognised as a HDU. Their primary submission was that nursing numbers should be determined by patient need not by the naming of the unit.
[152] BRHS also submitted that when the first agreement on ratios was reached BRHS had a physician on staff and that doctor left in 2005. That doctor supported the higher acuity beds. BRHS submitted that this explains why a HDU ratio was included for Bairnsdale and it is no longer relevant because the Victorian Government has set criteria for what is a HDU. 135 It was further submitted that transferring out arrangements have increased since that time.136
Findings
[153] Neither Commissioner Blair nor Senior Deputy President Watson referred to HDUs in their decisions and recommendations.
[154] In the Heads of Agreement made on 23 August 2001 a ratio was established for the HDU at Bairnsdale. The ratios have been included in each subsequent agreement.
[155] I accept the submissions of the ANF that at the time this dispute arose and at the making the 2000, 2005 and 2007 Agreements all parties described the two monitored beds in the Gabo ward as the HDU beds and the agreements provided a ratio for those beds.
[156] I do not accept the evidence of Dr Tse that the recommendations on standards for high dependency units for training in intensive care medicine provides a definition of a HDU in Victoria hospitals. There was no evidence that this definition has been accepted by either the hospitals covered by the Agreement or the Department of Health or the ANF. For example it provides that the HDU must be part of the intensive care complex of that hospital. Yet the 2007 Agreement and its predecessors make it clear that HDU’s can be part of an ICU or stand alone. At Swan Hill and Williamstown Hospitals the HDU is part of a general ward. It is clear that the recommendations are about the type of facilities in which training must occur, and it does not provide a definition of HDU.
[157] I do however accept that the Department of Health does not currently recognise BRHS as having a HDU. I also accept that if BRHS decides not to keep open any HDU beds in the Gabo ward, then that is its prerogative.
[158] However, as the two monitored beds in the Gabo ward were what the parties were referring to when they set the ratios for the HDU at BRHS, BRHS cannot now resile from those ratios by saying the definition of HDU has changed since then. If the definition of HDU had changed then that was a matter for negotiation when the Agreements were renegotiated.
[159] I therefore find that the reference to HDU in the 2007 Agreement is a reference to the 2 monitored beds in the Gabo ward. However the 2007 Agreement provides for nurse to patient ratio and not a nurse to bed ratio. Therefore if the beds are not used for HDU patients then the ratios do not apply.
[160] I accept the evidence of Ms Farthing that there is usually one HDU patient in the Gabo ward each week. I accept that the preference is for HDU patients to be transferred to another facility but it is clear that this does not always occur.
[161] I find that if there are HDU patients in the two monitored beds in the Gabo ward then the ratios provided in the Agreement must be complied with. However I accept that BRHS is not required to staff the Gabo ward on the assumption that the patients in the two beds are HDU patients.
[162] I accept the ANF submissions that if there are HDU patients in the Gabo ward then the number of nursing staff in the unit must be calculated by treating those patients as composing the HDU unit. For example if there are two HDU patients then there must be one nurse on night duty for the HDU patients and if there are 16 other patients then the number of nurses on duty must be two. If there are no HDU patients in the Gabo ward then the number of nurses on night duty is calculated using the 1:10 ratio i.e. two nurses.
Conclusions
[163] In reaching my conclusions I have had regard to all the evidence and submissions of the parties.
[164] While I have accepted that BRHS is entitled to make determinations about the number and type of patients it treats I am concerned that on ND the lack of readily available additional staff puts pressure on nursing staff when numbers in the ED are above the average if BRHS staffs the ED with the minimum staff required under the industrial agreement. The nursing witnesses for both the ANF and BRHS are dedicated professionals who are sometimes placed in an unenviable position of being required to compromise the patient ratios which were developed to ensure proper medical care for patients and appropriate working conditions for nursing staff.
[165] It is the responsibility of BRHS to ensure it has sufficient staff to meet both their patient needs and their obligations under industrial instruments. Given the difficulty in accessing additional staff at short notice and the fact that the ED cannot refuse to admit patients BRHS has the responsibility to ensure that there is sufficient flexibility in the way it staffs its ND shifts across the hospital to ensure there are sufficient staff to meet these demands.
[166] I therefore make the following determinations:
1. BRHS is entitled to issue a direction to the ED staff that admissions to the ED must be limited to a number determined by BRHS and, after appropriate consultation, to implement an admissions protocol for the ED.
2. The 50% rule does not apply to the ED.
3. Once a patient has been admitted to the ED i.e. once their treatment has commenced then she or he remains a patient for the purposes of the ratios until she or he is discharged home or to a ward or to another facility.
4. The Gabo ward contains two high dependency beds and when either or both beds are occupied by high dependency patients the ward must be staffed on the basis that these beds comprise the HDU. The remaining 16 or 17 beds must then be staffed in accordance with the ND ratio.
COMMISSIONER
Appearances:
D O’Callaghan for The Australian Nursing Federation.
R Corboy from the Victorian Hospital Industrial Association for Bairnsdale Regional Health Service.
Hearing details:
2010.
Bairnsdale:
August 3, 4.
Melbourne:
September 29.
1 Exhibit ANF 4
2 Exhibit ANF 2
3 Exhibit ANF 5
4 Exhibit ANF 3
5 Exhibit ANF 6
6 Exhibit B10
7 Exhibit B7
8 Exhibit B5
9 Exhibit B6
10 Exhibit ANF 1
11 Exhibit B12
12 AG840794 PR987469
13 [2010] FWAFB 4387
14 Ibid [40]-[42]
15 Ibid at [42]
16 Exhibit ANF 4 at [7]
17 Exhibit B4
18 Exhibit B2
19 Ibid
20 Ibid
21 ANF 1 at [1.6]
22 Exhibit ANF 1 at [1.3]
23 Exhibit ANF 4 at [19], Exhibit ANF 2 at [8] and [13], ANF 3 at [5] PN 76, PN 894
24 Exhibit ANF 11
25 Exhibit ANF 4
26 Ibid at [20]
27 Ibid at [21]
28 Ibid at [26]
29 Transcript PN 656
30 Ibid PN 660
31 Ibid PN 1177
32 Exhibit ANF 2 at [1]-[3]
33 Ibid at [9]
34 Ibid at [11]
35 Ibid at [12]
36 Ibid at [13]
37 Ibid at [14]
38 Transcript PN 76
39 Ibid at PN 163
40 Ibid PN 190
41 Ibid PN 210
42 Transcript PN 703
43 Exhibit ANF 3 at [4]
44 Ibid at [15]
45 Ibid at [7]
46 Exhibit ANF 11
47 Transcript PN 2524
48 Ibid PN 2526
49 Exhibit B 10 at [3]
50 Ibid at [11]
51 Ibid at [4]
52 Transcript PN 2939
53 Transcript PN 3018
54 Ibid PN 3020
55 Exhibit B7 at [12]
56 Ibid at VR 1
57 Ibid at [14]
58 Transcript PN 2409
59 Exhibit B7 at VR 1
60 Transcript PN 2112
61 Ibid PN 2192
62 See ANF 11
63 Transcript PN 2532
64 Exhibit B6
65 Transcript PN 1613
66 Ibid PN 1793
67 Ibid PN 1811
68 Ibid PN 3428
69 Ibid PN 3430
70 Exhibit B12 at [9]
71 VHIA v ANF Print S9958
72 PR902176
73 PR902692
74 PR912522
75 Transcript PN 3497
76 Ibid PN 3504
77 Ibid PN 3510
78 Ibid PN 3512
79 Ibid PN 3513
80 Ibid PN 3514
81 Ibid PN 2803
82 [2008] AIRC 291 at [7]-[15] and
83 [2010] FWAFB 4801
84 [2010] FCA 591 at [39]
85 Print S9958
86 PR902176
87 PR902692
88 Ibid at [5]
89 PR912522
90 Ibid at [13]
91 Ibid at [52]-[55]
92 PR929172
93 Transcript PN 3539-3545
94 Transcript PN 1844, 2499
95 Ibid PN 3504
96 Exhibit ANF 2 at [3]
97 Transcript PN 85
98 Exhibit ANF 5 at [2]
99 Ibid at [8]
100 Transcript PN 716
101 Exhibit ANF 3 at [10]
102 Transcript PN 351
103 Ibid PN 356
104 Ibid PN420
105 Ibid PN 560
106 Exhibit ANF 6 at tab 5, 6, 7,15,18,19, 20
107 Ibid at tab 18
108 Ibid at tab 20
109 Exhibit B10 at [12] and Transcript PN 2954
110 Ibid at [12]
111 Ibid at WS 2
112 Ibid PN 3105-3106
113 Ibid PN 2233
114 Ibid PN 2230
115 Ibid PN 2237
116 Ibid PN 2238
117 Ibid PN 2740
118 Ibid PN 2742
119 Exhibit ANF 6 at tab 5
120 Transcript PN 2752
121 Ibid PN 2760
122 Ibid PN 2763
123 Exhibit B5
124 Ibid at KC 1
125 Ibid at [6]-[12]
126 Transcript PN 1381
127 Ibid PN 1387
128 Ibid PN 1403
129 Ibid PN 1438
130 Ibid PN 1545
131 Ibid PN 1721
132 Ibid PN 1725
133 Ibid PN 3355
134 Exhibit B12
135 Transcript PN 3675
136 Ibid PN 3678
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