Bairnsdale Regional Health Service v Australian Nursing Federation

[2011] FWA 1550

[2011] FWA 1550

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Bairnsdale Regional Health Service
v
Australian Nursing Federation
(C2011/3485)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 10 MARCH 2011

Appeal against decision [[2011] FWA 631] of Commissioner Gooley at Melbourne on 10 February 2011 in matter number C2010/3176 - Stay order application declined.

[1] This is an application by Bairnsdale Regional Health Service (BRHS) for an order staying the decision 1 of Commissioner Gooley of 10 February 2011, arising out of an application by the Australian Nursing Federation (ANF) in relation to the Nurses (Victorian Public Health Sector) Multi Business Agreement 2007 -2011 (the 2007 Agreement), until the appeal is determined.

[2] The appeal was brought pursuant to s.604 of the Fair Work Act 2009 (FWA Act), although the dispute notification was brought pursuant to s.170LW of the Workplace Relations Act 1996 (WR Act). I proceed on the basis that a competent appeal may be brought under the relevant provisions of the WR Act, by virtue of transitional provisions of that Act and/or the FWA Act.

[3] The principles for the making of a stay order are reflected in the Full Bench decision in Edghill v Kellow-Falkiner Motors Pty Ltd: 2

“In determining whether to grant a stay application the Commission must be satisfied there is an arguable case with some reasonable prospect of success in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

The Commission approaches applications for stay orders on the basis that unless otherwise established the order subject to appeal was regularly made.”

[4] BRHS submitted that Commissioner Gooley exceeded jurisdiction by mischaracterising the dispute before her, dealing with and determining a dispute of broader compass than the dispute before her. It submitted that the dispute, insofar as it related to the Emergency Department (ED) concerned the issue of whether the capacity or number of cubicles was the determinant of the number of nurses required under the 2007 Agreement, as argued by the ANF, as distinct from the number of patients, as argued by the BRHS. BRHS submitted that in considering and determining whether the 50% rounding rule and whether patients admitted to the ED but returned to the waiting area without discharge counted as patients, the Commissioner extended the dispute beyond the dispute brought before her under the agreement disputes procedure.

[5] BRHS submitted that if it was wrong on that point, the Commissioner denied BRHS natural justice by not putting it on notice that the 50% and patient movement issues were in contention.

[6] BRHS further submitted that Commissioner Gooley also erred in making findings which were not available on the evidence in respect of the patient movement issue and the 50% rule, having regard to evidence as to the past practice of BRHS.

[7] The ANF opposed the stay order.

[8] In transcript of 7 March 2011, I announced the following decision (now edited).

[9] I am not persuaded on the submissions to date and the evidence before Commissioner Gooley to which I have been taken that there is a reasonable prospect of success of the appeal on the issue of the Commissioner having exceeded jurisdiction by mischaracterising the dispute before her. On the evidence I was taken to, I am not satisfied that there is a reasonable prospect of success in establishing that the Commissioner erred in characterising the dispute as a dispute about how the staffing ratios apply in the ED.

[10] Neither am I persuaded having regard to the passages of transcript I was taken to that there is a reasonable prospect of success in respect of the proposition that BRHS was not on notice that the issues concerning movement of patients or the application of the rounding principle apply to ratios in the ED were issues in the matter before the Commissioner.

[11] The evidentiary issues raised on the material before me have not been made out to the point where I am satisfied that there is a reasonable prospect of success in relation to them, having regard to the material I was taken to in the proceedings before Commissioner Gooley. In any case they would seem to fall within errors within jurisdiction if they were errors, which would not support leave or permission to appeal.

[12] In those circumstances I am not satisfied that it has been established on the material before me that the appeal has a reasonable prospect of success or reasonable prospect of resulting in leave to appeal. In those circumstances I do not go to balance of convenience.

[13] I decline to issue an order staying the decision of Commissioner Gooley.

SENIOR DEPUTY PRESIDENT

Appearances:

N Harrington on behalf of Bairnsdale Regional Health Service.

P Gardner with D O’Callaghan on behalf of the Australian Nursing Federation.

Hearing details:

2011.

Melbourne:

March 7.

 1   [2011] FWA 631.

 2   S4216 at paras 5 and 6. See also S2639 at paras 5 and 6.

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