Healthscope Limited v Francine Austin

[2011] FWA 5599

[2011] FWA 5599

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Healthscope Limited
v
Francine Austin; Cheryl Bricknell; Lynne Macanally
(C2011/139)

Queensland Nurses’ Union of Employees
v
Healthscope Limited T/A Allamanda Private Hospital
(C2011/3547)

COMMISSIONER SIMPSON BRISBANE, 16 SEPTEMBER 2011

Dispute over entitlement to redundancy - Healthscope and QNU -Nurses -Enterprise Agreement 2009-2012 - jobs no longer required to be done by anyone - acceptable alternative employment offered - redundancy pay reduced to nil.

[1] A Queensland Nurses Union (QNU) s.739 dispute application (C2011/3547) with Healthscope Limited was filed on 8 March 2011 regarding the redundancy entitlements of Ms Francine Austin, Ms Cheryl Brickell and Ms Lynne MacAnally. I conducted a conciliation conference on 23 March 2011. The conference did not resolve the dispute.

[2] On 28 March 2011 the employer, Healthscope Limited (Healthscope) filed its own s.739 dispute application (C2011/139) regarding the same matters contesting an entitlement to redundancy. This dispute application was listed for a conciliation conference on 15 April 2011.

[3] It was agreed by the parties that as the two dispute applications could not be resolved by conciliation, applications (C2011/139) and (C2011/3547) would be listed and heard together and for the purposed of the hearing Healthscope would proceed as the Applicant and the affected employees as Respondents.

[4] At the hearing on the 11th and 12th July 2011 Healthscope was represented by Mr John Douglas, the General Manager - Employee Relations and the employees were represented by Mr Ben Green of Hall Payne Lawyers.

[5] In accordance with my directions the parties provided an agreed statement of facts  1 and the questions for arbitration2 which are set out below.3

AGREED STATEMENT OF AGREED FACTS

1. The Applicant, Healthscope Ltd (“Healthscope”) owns or manages 44 medical/surgical, rehabilitation and psychiatric hospitals in each state and territory of Australia. In addition, Healthscope operates a leading pathology business. It also owns and operates a number of medical and imaging centres. The Company was formed in 1985 and listed on the Australian Stock Exchange in 1994. It employs approximately 17,000 employees. In 2010 Healthscope was sold to a private equity consortium and now operates as a private company, although it continues to be listed as a public company in some respects.

2. The respondents are employed at Allamanda Private Hospital (“the Hospital”), owned and operated by the Applicant. The Hospital was acquired by Healthscope on 1 November 2005. The employment of the respondents transmitted to the Applicant.

3. The paediatric ward at the Hospital catered for children up to the age of 16.

4. Occasionally, however, there were carefully selected, adult patients accommodated in the paediatric ward. These patients in general were female and at the lower end of the acuity scale. For example, post-operative varicose vein removal or medical patients. The patients were selected to maintain the safety of the paediatric patients at all times. Some were looked after by adult nurses provided by the Hospital.

5. Prior to November 2010, the paediatric ward operated 24 hours per day, 7 days per week.

6. The First Named Respondent, Ms Austin:

a. is 49 years of age;

b. commenced her employment with the Hospital on or about the 23rd of February 1998 as a registered nurse in the paediatric ward;

c. worked as a Level One Registered Nurse, solely in the paediatric ward at Allamanda for, usually, at least 48 hours per fortnight.

7. The Second Named Respondent, Ms Brickell:

a. is 57 years of age;

b. commenced her employment with the Hospital on or about 12th April 1999 as a registered nurse in the paediatric ward;

c. worked as a Level One, and at times acted as a Level Two Registered nurse, solely in the paediatric ward at the Hospital, on a part-time basis that was usually 48 hours per fortnight.

8. The Third Named Respondent, Ms MacAnally:

a. is 57 years of age;

b. commenced her employment with the Hospital on or about 12th June 1995 as a registered nurse in the paediatric ward;

c. worked as a Level One Registered Nurse, solely in the paediatric ward at the Hospital;

d. in recent years worked for at least 52 hours per fortnight.

9. The Applicant, the Respondents and the QNU are parties to the Healthscope and QNU -Nurses -Enterprise Agreement 2009-2012 (“the Agreement”). The Agreement was approved by Fair Work Australia on 25 October 2010 (PR992737) and is enforceable under the Fair Work Act 2009 (Cth).

10. The relevant clauses of the Agreement for the purposes of this matter and consequently these proceedings are:

a. Cl 14. Grievance and dispute settling procedure;

b. Cl 17. Incidental or peripheral tasks;

c. Cl 19. Redundancy, specifically 19.1, 19.2, 19.4, 19.5, 19.9 and 19.12

11. On or around 7 October 2010, Rodney Green, General Manager of the Hospital, issued a memorandum which stated in part:

“It is our plan that from November 2010 the paediatric ward will open on weekdays only to support the treatment of both inpatient and day only patients.”

Notwithstanding this stated intention, it was only on the 15 th November 2010 it was decided to do only Chongs (the dental) list.

12. This decision excluded all paediatric patients with the exception of a regular dental list that was exclusively day only patients.

13. In the week commencing 8 November 2010, Friday night and weekend shifts ceased for nurses including the Respondents. Prior to this change:

a. Ms Austin regularly worked Sundays;

b. Ms Brickell regularly worked Friday nights and Saturdays;

c. Ms MacAnally regularly worked Friday nights, Saturdays and Sundays.

14. Doctors who admitted patients to the Paediatrics Ward of the Hospital advised the Applicant that they would cease having inpatients at Allamanda from Monday 15th November 2010.

15. Towards the end of 2010 the Applicant made a definite decision that it would close its paediatric ward at the Hospital. The reason was because another private hospital on the Gold Coast, Pindara Private Hospital, had opened a new paediatrics unit and a majority of staff and consulting medical practitioners had left the Hospital and joined that organisation.

16. On 2 December 2010 the Applicant received a letter from the QNU requesting specific information as to what specific steps were proposed to be taken to further minimize adverse effects of the decision on affected employees.

17. The Applicant responded by letter dated 3 December 2010 to the effect that all employees would be offered their contracted hours and that it would meet with the QNU to discuss any other concerns in the week commencing 13 December 2010.

18. There were no formal meetings at this time. There was communication (verbal) between the General Manager of the Hospital, Mr Green, the Director of Nursing, Ms Shaw and the nurses that the intent of the Applicant was to maintain the unit with the support of the remaining staff and Doctors.

19. The paediatric ward at the Hospital closed on 17 December 2010, except for the dental list on Fridays. No surgical lists or medical pts were admitted following Nov 15th.

20. A meeting took place between the parties on 20 January 2011 and, following the meeting, the Applicant forwarded a letter to the QNU dated 21 January 2011. At the meeting, the Respondents were informed that the Applicant had determined that the paediatric ward would close, although there would be a paediatric dental list on Fridays. The Applicant had therefore decided that it no longer wished anyone to perform the job of a registered nurse working solely in a paediatric ward. The unit has been converted to an adult sleep studies unit that has no impact on the continuing paediatrics dental list.

21. At the meeting on 20 January 2011 and in the subsequent letter, the Applicant proposed that the affected nurses be redeployed to other areas of the hospital and provided training as required. The nature of the training was outlined. As far as possible the nurses would be offered a shift pattern that reflected their current roster arrangements, thereby minimising disruption to their work patterns, including penalty payments. The Applicant indicated an intention to hold individual discussions with the affected nurses regarding this proposal.

22. The Applicant has stated that the training offered to the respondents for the purpose of redeployment would be a three-step process. The first stage was theory training on some of the differences between nursing adults and paediatric patients. This was over a three-day period. These 3 days were run twice over a two week period. The training was modified to the individual employees’ preferred/nominated clinical environment or area of interest. The second stage would be for the staff to be supernumerary for a period of approximately 3 months, supported by the educational staff in the clinical environment. The third stage would involve a review with individuals to determine what, if any, further training was required.

23. There were 8 registered nurses affected by the decision to close the paediatric ward. Of those 8 employees, 2 were provided redundancy payments, 2 employees, who had previously worked as adult nurses, accepted redeployment to other areas of the Hospital, and one employee accepted a reduction in hours and continues to work the Friday dental list only, leaving the 3 employees who are the subject of these proceedings.

24. The Applicant’s offer to Ms Austin is set out in its letter dated 10 February 2011 as follows:

“As we discussed with the QNU, I am happy to make the following commitments to your retraining journey.

• Provide two weeks of lectures in Concepts of Adult Nursing.



• Provide 3 months of supernumerary work with a preceptor in the Emergency Care Centre.



• Continue to work Friday shifts in the paediatric ward to support Dr Chongs list. When there is no list on a Friday you will work in the Emergency Department.



• Regular feedback sessions with the Hospital Educator, and the Director of Nursing



• Maintain your hours of work at 48 hours per fortnight



• Provide rostering flexibility in keeping with your previous work patterns.



• Financial support to undertake your Bachelor of Nursing.



• No deployment to other areas.



• Financial support to attend paediatric courses or conferences to ensure ongoing familiarity with paediatric nursing.”

25. The Applicant’s offer to Ms Brickell is set out in its letter dated 21 February 2011 as follows:

“I would like to offer you ongoing employment at Allamanda. I have discussed with you the possibility of working each Friday in the paediatric ward to support Dr Chong’s dental list. You have declined this offer.

I would be able to maintain your recent shift patterns and contracted hours in Binna Burra ward. This is the inpatient rehabilitation ward. I understand that you have concerns in moving into adult nursing. Binna Burra is a fairly low acuity ward where the nursing focus is on assisting patients re-gain skills that have been impaired by illness or hospitalisation.

Keeping your concerns in mind I would like to offer the following:

• Provide 3 months supernumerary work with a preceptor in Binna Burra ward.



• Shifts rostered in keeping with your recent work patterns.



• Regular feedback sessions with the Hospital Educator, and the Director of Nursing



• Maintain your hours of work at 48 hours per fortnight



• Provide rostering flexibility in keeping with you previous work patterns



• Provide two weeks of lectures in Concepts of Adult Nursing (already provided.)



• Financial support to undertake your Bachelor of Nursing. (If desired)



• No deployment to other areas.



• Financial support to attend paediatric courses or conferences to ensure ongoing familiarity with paediatric nursing.”

26. The Applicant’s offer to Ms MacAnally is set out in its letter dated 10 February 2011 as follows:

“As we discussed with the QNU, I am happy to make the following commitments to your retraining journey.

• Provide two weeks of lectures in Concepts of Adult Nursing.



• Provide 3 months of supernumerary work with a preceptor in the Emergency Care Centre.



• Regular feedback sessions with the Hospital Educator, and the Director of Nursing



• Maintain your hours of work at 52 hours per fortnight



• Provide rostering flexibility in keeping with you previous work patterns.



• Financial support to undertake your Bachelor of Nursing.



• No deployment to other areas.



• Financial support to attend paediatric courses or conferences to ensure ongoing familiarity with paediatric nursing.”

27. The Applicant has informed all of the Respondents that they will continue to be employed at their substantive classification as registered nurses at the Hospital under the conditions prescribed by the Agreement and the actual hours that they will work will be as close as is operationally possible to those that were worked in the paediatric ward.

28. All of the Respondents have requested that they be paid severance pay under clause 19.9 of the Agreement, together with other entitlements owing upon termination, on the basis that the Applicant no longer wishes the jobs they had been doing to be done by anyone.

29. The Applicant has rejected the Respondents’ requests for redundancy entitlements and asserted that its proposals to the Respondents constitute “acceptable alternative employment” within the meaning of clause 19.

30. In the case of all the respondents they will continue to be employed as registered nurses, under the same terms and conditions of employment and at the same location.

31. In March 2011 the QNU notified a dispute concerning this matter to Fair Work Australia. Conciliation failed to resolve the dispute.

QUESTIONS FOR ARBITRATION

1. Has the Applicant made a decision within the meaning of clause 19.4(a) of the Agreement, namely that it no longer wishes the job the Respondent has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour ?

2. If question 1 is answered in the positive, has the Applicant obtained acceptable alternative employment for the Respondent for the purposes of clause 19.12 of the Agreement?

3. If question 2 is answered in the positive, should the general severance pay prescription be amended in any way?

CONSIDERATION

[6] The first witness for the Applicant was Ms Carolyn Shaw who provided an initial witness statement 4 and two additional statements.5

[7] Ms Shaw is the Director of Nursing General Manager of the Hospital and has been since April 2008. Prior to that she was the Nurse Manager of the Allamanda Intensive Care Unit. 6

[8] Ms Shaw gave evidence that if the nurses were redeployed to a different part of the hospital from Lamington Ward and they failed to perform to the required standard they would be assisted in professional development, provided mentorship and support, have areas of weakness identified and provided support to work through issues. 7 This is consistent with the offers set out in the Agreed Statement of Facts.

Offers of Employment

[9] Ms Austin attached to her statement 8 a summary of her employment history which shows that since completing her general nurse training in 1982 she has predominantly been employed in paediatric nursing.

[10] Ms Austin gave evidence that she was “sought out” by the Nurse Unit Manager of the paediatric unit at Allamanda Hospital Ms Lisa Blanconette in February 1998, and told at the time the Hospital required highly skilled and specialised nursing staff for the paediatric ward. 9 Ms Austin said that when she was approached by Ms Blanconette the position was described as a paediatric nurse in the paediatric unit. She attended a job interview where an outline of the paediatric unit was given, what the job entailed, what the unit was about and what her job description would be. Ms Austin said there was no suggestion she would be required to work in other wards and had the job offered been in another ward she would not have accepted it.10

[11] Ms MacAnally said that she became a registered nurse in 1975 but stopped nursing to raise her children. In 1987 she commenced employment at the Gold Coast Hospital as a registered nurse in the paediatric ward where she worked for eight years. Ms MacAnally said she was contacted and asked to come to an interview at Allamanda Hospital around June 1995 when the paediatric ward was just opening. She said she was contacted because of her specialty in paediatric nursing. She commenced at the Hospital on 7 June 1995 and has worked solely in the paediatric ward since. 11

[12] Ms MacAnally said that she got a phone call from the Nurse Unit Manager to ask if she would be interested in working on the ward, so she went to an interview knowing she would be working in the paediatric ward. She was not offered any other position in the interview. 12

[13] Ms Brickell said that she immigrated to Australia in 1999 and was initially approached by the Gold Coast Hospital but one month later after discovering the Allamanda Private Hospital was across the road applied for work there and was employed at the Allamanda Hospital in the paediatric ward based on her qualifications and experience. It was her evidence that she specifically sought employment in the paediatric ward and she would not have sought work at the Hospital if the position available was not in the paediatric ward. 13

[14] Ms Shaw accepted that Ms Austin, Ms Bricknell and Ms MacAnally worked in the Allamanda paediatric ward during their entire employment at the hospital. 14 Ms Shaw said she understood whenever their own ward was quiet they were offered the option of redeployment to another ward or having the day off and they chose to have the day off.15

Change in Paediatric Unit

[15] Ms Austin said that in early 2010 doctors told nurses, including her, that they would be leaving in November to work at Pindara Private Hospital. Ms Austin gave evidence that in April 2010 the staff of the paediatric ward put into writing to Ms Shaw as the Director of Nursing their concerns that their future was uncertain. 16

[16] Ms Austin said a meeting was held between the Ward staff and Ms Shaw on 20 April 2010 where Ms Shaw told staff the hospital was committed to keeping paediatric nurses at the hospital. 17 This was followed by a letter to Mr Green on 9 September 2010 again raising concerns about the future of the ward 18 and also an issue regarding the ability of paediatric nurses to meet AHPRA registration standards regarding “recency of practice”.19

[17] Ms Jill Barnes the Nurse Manager of the paediatric ward resigned on 9 September 2010 to accept a position at the Pindara Private Hospital. 20 Ms Austin, Ms MacAnally and Ms Brickell all said nurses began leaving the paediatric ward in September 2010 in advance of commencing work at Pindara paediatric ward. 21

[18] On 15 September 2010 Mr Green sent correspondence to nursing staff in the Lamington Ward advising he was unaware that a number of Paediatricians were withdrawing services as of November 2010 and had been given assurances it was not the case, however acknowledging that with the opening of a paediatric ward at Pindara Private Hospital it was to be expected that the paediatric ward at Allamanda would have reduced volumes and the hospital was committed to offering a formal refresher program to treat adult patients as appropriate. 22 Ms MacAnally said the first time she was definitively told the paediatric ward would close was 20 January 2011.23

[19] On 14 October 2010 Associate Professor Deborah Bailey who was the paediatric surgeon of the Allamanda Hospital wrote to Ms Margaret Law, the Nurse Unit Manager of the Allamanda Operating Theatre to notify of her decision to cease routine operating lists at Allamanda Hospital from 6 November 2010. 24 The letter included the following sentence:

“Without paediatrician cover and trained specialist paediatric nursing staff on a twenty-four seven day basis, it will no longer be safe medically and legally for me to operate on small children and infants in Allamanda.”

[20] Ms Shaw said in evidence that she agreed with the decision and that they formed part of the reason for the closing of the Lamington paediatric ward. 25

[21] Under cross examination Ms Shaw said it was up to the individual medical practitioner what level of comfort they are happy with to operate in a facility. In reference to the words “trained specialist nursing staff” Ms Shaw said the paediatric nurses didn’t all have post graduate qualification but certainly had vast experience. 26

[22] Ms Shaw gave evidence that one group of paediatricians left the hospital but another group, made up of two senior paediatricians wanted to stay. However, following an incident on 15 November 2010 when two nurses rostered for work did not attend and two children needed to be transferred to Pindara Hospital following surgery, and following a discussion between Ms Shaw and Mr Green a decision was taken to close the ward as Ms Shaw was not confident it could be staffed appropriately. 27 Ms Austin admitted that her statement was incorrect when she said that all paediatricians had left the hospital around 8 November 201028 and two paediatricians were continuing to admit patients at that time.29

Paediatric Nursing compared to other Nursing

[23] Ms Shaw expressed the view that the main differences between nursing children and adults were size, drug calculations, dealing with parents and children’s inability to communicate however the day to day functioning of being a registered nurse is very similar. 30

[24] Ms Shaw gave evidence that a percentage of agency nurses are in the hospital every day and between 10 and 12 full-time equivalent positions were currently vacant in the hospital so there is plenty of scope to employ the three applicants. 31

[25] Ms Shaw said there are no position descriptions for paediatric nurses or for any specialty area. She said there are generic position descriptions for Level 1 and Level 2 registered nurses. This is because the expectation is that your base qualification is as a registered nurse and you may go on to specialising in an area of particular interest. It was Ms Shaw’s evidence that nurses move into an area of interest and go on to pursue post graduate qualifications in that area. 32

[26] Ms Shaw was referred to the statement of Ms Austin where Ms Austin refers to the term “nursing specialty” in her position description from February 2002 33 which she understood to be a reference to her specialisation in paediatric nursing.

[27] It was Ms Shaw’s evidence that if a nurse specialises this sits above their qualification as a registered nurse and you gain additional skills on top of your basic qualification. Ms Shaw acknowledged certain skills could become “a bit rusty” but that you do not lose your skills as a registered nurse as you take on new skills. 34

[28] Ms Shaw used as an example her own situation as a nurse who has specialised in intensive care. Not having worked in an intensive care unit for some time she said:

“ ..I would want to probably ease myself in, looking after some probably less acute patients, and I’d certainly have to do things like refer to drug books and that sort of thing to bring myself up to speed. So I would probably need a couple of days of just gradually bringing myself back into the role. But you don’t - I certainly don’t lose those skills at all...” 35

[29] Ms Austin believed it was a requirement that one paediatric nurse be present on the ward at any time. 36 Ms Austin said her skills as a paediatric nurse came from experience, self learning and courses.37

[30] Ms MacAnally said that adult nurses are outside their scope of practice in a paediatric ward just as she would be in an adult ward. 38 Ms Shaw rejected that proposition saying that she believed it was more a question of comfort, and perhaps confidence than scope and further that a registered nurse can work in any area as long as they have the skills.39

[31] In response to Ms Austin’s statement that she was told around the time of her commencement in the paediatric ward that she would be required to work autonomously, 40 Ms Shaw gave evidence that paediatric nurses did not work more autonomously than other nurses and to do so would be to operate outside their scope of practice if that meant making decisions on their own.

[32] Ms Austin conceded in cross examination that she did not know if the level of autonomy she referred to in her statement for nurses in the paediatric ward was any different to nurses in other wards of the Hospital. 41 She also said she did not know if the direct admission of patients to the ward by general practitioners or the practice of ward rounds by doctors was different to other units.42

[33] In response to the statement of Ms Austin where she said that she assessed children admitted to the paediatric ward as direct admissions from general practitioners Ms Shaw said this was no different than for other nurses throughout the hospital. 43

[34] Ms Shaw said the on-call arrangements referred to by Ms Austin 44 were no different to any other ward of the hospital.45

[35] Further Ms Shaw said that the licensing of the Unit sits around the clinical service framework and the expectation was that medical cover was always contactable and able to proceed immediately however only the emergency department and intensive care unit had 24 hour on site medical coverage. 46 Ms Shaw said no nurse can prescribe treatment or institute treatment without the orders of the doctor unless they are a nurse practitioner.

[36] Ms MacAnally said in her statement she and other nurses had to assess and sometimes treat patients when they arrived. 47 Ms Shaw said if that was correct she shouldn’t and said a nurse can’t implement treatment without speaking to a doctor.48

[37] Ms MacAnally agreed that there would not be much difference between assessment of the condition of a child and assessment of an adult. 49 She also agreed the process she described in her statement50 in determining the nursing care and treatment to a paediatric patient would be similar for an adult patient.51 Ms MacAnally also agreed the process she described in her statement for calling a doctor when necessary for a child would be the same for an adult patient.52 Ms MacAnally did say however there is a lot more knowledge you have to know in adult nursing just as with paediatric nursing and it’s just not that easy.53

[38] Ms Brickell gave extensive evidence regarding her role as a paediatric nurse. 54 In response Ms Shaw said all patients have similar requirements and that there is not anything that says the skills she has developed in paediatric nursing is not transferrable or generic to any registered nurse working in a clinical environment.55

[39] Ms Brickell agreed that the pattern of observations of paediatric patients she described in her statement 56 would be the same as for adults just as the administration of medications at different times and the checking of medications would be the same for adults.57 She also agreed taking specimens from an adult would not be as complex for a child,58 however she had not done these tasks in an adult ward for 32 years. She said she could do the tasks but wouldn’t be sure necessarily of the parameters that would be adequate for an adult.59

[40] Ms Shaw expressed the view that moving from adult nursing to paediatric nursing was a greater move than from paediatric to adult nursing. 60 61

[41] In responding to the statement of Ms Austin regarding her attendance at the Paediatric Life Support Course 62 Ms Shaw said the hospital did not require her to undertake the course, did allow staff time off to attend the course and understood once the base course is completed refresher courses must be attended every 12 months.63 Ms Austin confirmed that she was not directed by the Hospital to attend the course and it was her own choice to do so.64

[42] Ms Shaw responded to the statement of Ms Austin regarding her request for nurses to provide copies of their Paediatric Life Support Certificates 65 by stating that this request was made during an ACHS full accreditation survey when Ms Shaw was asked to provide ACHS with evidence of which nurses in the paediatric unit had advanced life support certificates.66

Redundancy/Redeployment

[43] Ms Austin said that at one point in November 2010 Ms Shaw told her that she would be made redundant and given a redundancy payment along with Simeon Millqvist who was a Level 2 registered nurse. 67 Ms Shaw denied saying this. It was put to Ms Austin this was inconsistent with evidence of the Hospital attempting to maintain the paediatric ward.68

[44] Ms Shaw said she knew from the beginning that Simeon Millquivist would probably be made redundant as she had a unique contract that said she was employed as a paediatric nurse in the paediatric ward and all other contracts simply said nurses were employed as registered nurses at the Allamanda Hospital. Ms Shaw said a previous owner of the hospital had, at a time when a hospital coordinator was filling a HR department role, prepared a position description and had written on her contract that Ms Millqvist was employed as a paediatric nurse in the paediatric department, and was also very close to retirement. 69 Ms Shaw said she never thought the other nurses would be made redundant.70

[45] Ms Shaw gave evidence that the only other nurse offered a redundancy was a difficult employee generally and it was agreed the best outcome was to offer her a redundancy. 71

[46] Ms Shaw said two other nurses who worked for extended periods in the paediatric ward accepted redeployment into the day surgery ward and anaesthetics. 72 It was her evidence they were both performing very well.73 In cross examination Ms Austin sought to distinguish her circumstances with Kim Sullick, who had redeployed to the day surgery ward because Ms Sullick was an adult nurse to start with. Ms Austin accepted that Ms Sullick worked in the paediatric ward for between 9 and 10 years.74

[47] Ms Austin said a meeting occurred on 20 January 2011 which included other paediatric nurses, a QNU industrial officer Gayle McCaul and Ms Shaw. Ms Austin said at the meeting Ms Shaw advised that the paediatric ward would be closed and staff were invited to submit preferences for other sections of the hospital in which they could work. 75

[48] Ms Shaw gave evidence that she gave an “absolute undertaking” to the Applicants when she met them in a meeting with the QNU that their shift patterns, which include weekend work and specific shifts due to family requirements, would be maintained. 76 This evidence goes slightly further than is set out at clause 27 of the Agreed Statement of Facts.

[49] Ms Austin said she did not want to work in another section of the hospital, or to be retrained as she considered herself a paediatric nurse and she did not want to “start from the bottom”, however as a preference had been requested and upon advice from her union she indicated she would prefer the emergency ward. Ms Austin said she would need significant retraining to the level of a 3 year degree to enable her to work with adult patients. She said she communicated this proposal in a second meeting with Ms Shaw and Ms McCaul. 77

Ms Shaw claimed she was overwhelmed by Ms Austin’s enthusiasm when she met her to discuss redeployment. She claimed Ms Austin said whilst it wasn’t her preferred path it was a new opportunity for her. Ms Shaw said Ms Austin requested financial support in doing her post graduate degree and this was agreed to. According to Ms Shaw, Ms Austin said she could bring a level of skill to the emergency department where a significant number of presentations continued to be paediatric. Ms Shaw said Ms Austin had said she would need significant retraining and support. 78

[50] Ms Austin said that, at a further meeting, Ms Shaw indicated that there would no longer be a paediatric ward at the Gold Coast Private Hospital to be opened by Healthscope and this added to her desire not to transfer to another ward as she had hoped, based on discussions with Ms Shaw, that she could return to paediatric nursing. 79

[51] Ms MacAnally, like Ms Austin, indicated she did not want to work in any other section of the hospital besides the paediatric ward as she considered herself a Paediatric Nurse to have specialised in the field for many years. She said given her age and experience, she was not interested in retraining for a different scope of practice and starting to build her experience from scratch. 80

[52] Ms MacAnally also said she would not feel confident nursing adults and she would be starting from the bottom again. 81 Ms Shaw said the purpose of the three month supernumerary time would be to help her in any areas she lacked confidence, and she would not be starting from the bottom again as it was common for senior nurses to move into a new area and it was not the case in terms of pay.82 Ms MacAnally said she was past training in another area.83

[53] Ms MacAnally went on to say that while she nominated the emergency ward as an alternative area to work in, based on advice from the union to participate in the process, she indicated to Ms Shaw she would need extensive retraining, education and there would be a risk that younger nurses would look to her for guidance which she could not provide due to her lack of experience. 84

[54] Ms Shaw responded to this by saying there were a lot of mature age nursing students and novice nurses and the manager of the emergency department was made well aware of the process, and as in the case of Ms Austin she would be sitting in a completely supernumerary role shadowing another nurse. 85

[55] Ms MacAnally said after careful consideration she rejected the offer. 86 She said the reason accident and emergency was mentioned was that they were told by the Union they had to put something down. She doubted the Hospital would provide a supernumerary arrangement during Friday, Saturday and Sunday night duty in the accident and emergency department paying that sought of money for doing nothing, so was concerned she would have to attend to the work without the skills.87

[56] She said a factor against leaving was loss of her accrued sick leave however did not believe she could put up with the stress of working with adults. 88

[57] Ms MacAnally gave evidence that she is currently working at the Pindara Hospital in the paediatric ward. 89

[58] For a period of time nurses affected by the closure of the paediatric ward were not attending work for rostered shifts. Ms Brickell said after the meeting on 20 January she and other paediatric nurses were paid their usual hours of work without having to attend work however she continued to attend work for Dr Chong’s dental list on Fridays. Ms Brickell said she did not regard this work as paediatric nursing and she found it monotonous. 90 Ms Brickell said it was late April 2011 when nurses were told they needed to attend during contracted hours.

[59] Ms MacAnally said between November 2010 and January 2011 she had two weeks leave and then came to the ward and sat there and ruled up books or did something that was not paediatric nursing to fill the time until the meeting in January. 91

[60] Ms MacAnally agreed that Ms Shaw had offered her the same shifts on a Friday, Saturday and Sunday night in the emergency department as she had in the paediatric ward. 92 It was put directly to Ms MacAnally in cross examination that the reason she didn’t want to work as an adult nurse is because she didn’t want to work with adults, and she would rather work with children and she replied “Definitely.” 93

[61] Ms Brickell also confirmed that at the meeting on 20 January she was asked what position she would be interested in other than the paediatric ward and she indicated education however she was told such positions were employed by TAFE or the university. 94 Ms Shaw said she was concerned about Ms Brickell saying that she didn’t feel confident around adult patients and she felt the role was better done by someone who was confident. Ms Shaw said the only other education roles in the hospital were highly specialised.95 When Ms Brickell was asked in cross examination why she nominated an education role she answered that there was nothing else she wanted to do.96

[62] Ms Brickell said she knew nothing about the operation of the Binna Burra ward. Ms Shaw said the ward was located physically directly next door to the paediatric ward. 97

[63] Ms Brickell also said Ms Shaw had told her patients in Binna Burra ward are lower acuity however she was concerned that the risks were higher given the advanced age of the patients. 98 Ms Shaw said the ward was relatively low acuity and as soon as patients fall outside those parameters they are transferred to a more acute inpatient unit.99 She also said that during the three month supernumerary period any areas of weakness or need for further education could be addressed.100

[64] Ms Brickell indicated she didn’t think she would be able to gain the knowledge, experience and expertise due to her age, 101 however accepted that as a registered nurse she is required to undertake continuing professional development each year and she could undertake that training.102 It was put to Ms Brickell that the reason she didn’t accept the offer to work in Binna Burra was because of her own personal preference and she replied “To a point, yes.”103

[65] A letter of offer was sent to Ms Austin as set out in paragraph 24 of the Agreed Statement of Facts. Ms Austin said that she understood “supernumerary work” to mean that she would be an “extra” on the roster and therefore would not have the same level of responsibility. Ms Austin said that although the letter said she would be accompanied by a preceptor who would stay with her for instruction, in the reality of the emergency ward she would end up being asked to do things she did not feel comfortable with. 104

[66] Ms Austin said the written offer did not state what would happen at the end of three months or if she would have a permanent position in the emergency department. She said Ms Shaw had advised her that she could continue in a supernumerary position for longer if Ms Austin felt it was necessary; however Ms Austin said she was not sure if Ms Shaw had the authority to say that. Ms Austin said she decided not to accept the offer and instructed her union not to accept the offer of redeployment and she believed she was entitled to redundancy on the basis that she is a Paediatric Nurse and the Hospital no longer had a paediatric unit. 105

[67] In cross examination Ms Austin was directed to the letter dated 10 February 2010 106 and the sentence:

“As we discussed with the QNU I’m happy to make the following commitments to your retraining journey.”

As well as the second dot point which states:

“ Provide 3 months of supernumerary work with a preceptor in the Emergency Care Centre.”

[68] Ms Austin accepted that she would continue to be an employee after the three months, that she was employed under an ongoing contract and there was never any discussion about a variation of that and further the supernumerary arrangement was about retraining not ongoing employment. 107

[69] Ms Austin said in relation to the offer to work as a supernumerary in the emergency care centre that a doctor would be there at all times. 108

[70] Ms Shaw said that nurses have a culture of training each other. She said she made it very clear that the staff level on the area they went into wouldn’t be decreased for them to be there, so the basic staffing levels would be the same and they would sit above that. Further they would have a mentor, a preceptor that would shadow them the entire time. Ms Shaw said that she had discussions with the Nurse Unit Manager and the Medical Director of the emergency care centre to explain that under no circumstances were these nurses to be asked to do anything that they felt uncomfortable with. 109

[71] Ms Brickell said she received a letter from Healthscope on 21 February 2011 110 offering her a position in the Binna Burra ward which was a geriatric rehabilitation ward on a three month supernumerary basis. Ms Brickell complained the letter had no detail about what would happen after three months however she did say Ms Shaw suggested the supernumerary appointment could be extended if she was not comfortable at the end of the period. Ms Brickell also said that if she was labelled as supernumerary she may be asked to perform tasks that she was not comfortable with, and further it was her experience younger nurses looked to older nurses for advice.111 As with the other nurses Ms Shaw repeated her evidence that it was her intent that the role for Ms Brickell would be ongoing.112

[72] The letter from Ms Shaw states that Ms Brickell declined an offer to work each Friday in the paediatric ward to support Dr Chong’s dental list. Ms Brickell confirmed she declined that offer as it was once a week and she didn’t know what other opportunities existed for her. When it was put to her that she was offered training to work in the Binna Burra ward she said she didn’t accept the offer because of her age and she would have to go to university for two years to do retraining. 113

[73] Ms Shaw said that the clear intent was that the parties would meet regularly throughout the three month supernumerary period including herself, the Hospital Educator, the Nurse Unit Manager of the emergency care centre and her preceptor for feedback sessions. At the end of the three month period there would be an assessment and assuming everything was going well she would remain in the position as she already had a permanent position. Ms Shaw said the only issues that may have arisen were if there was a need for further training and whether the nurse wanted to move to a different area as the intent was to continue the employment in the area of choice. 114

[74] Ms Shaw rejected the assertions from Ms Austin and Ms MacAnally that they weren’t told they would be given a permanent position in the emergency department. 115 116 Ms Shaw said they already had permanent positions and they were facilitating a change of location. Further Ms Shaw said Gail McCaul and Kate Snowball were present in the meetings where the arrangements were discussed and the letters to the nurses were shown to them.117

[75] Ms Shaw described the three day training session set out in paragraph 22 of the Agreed Statement of Facts as being made as accessible as possible. The training was planned during the meetings with paediatric nurses which included the QNU in January 2011 where nurse’s highlighted areas they wanted covered. The hospital educator who was present at those meetings designed the courses to cover areas the nurses felt least comfortable. 118 Ms Austin said she attended two of the three sessions.119 Ms Brickell said she attended one session but left at lunch time as she had been on night shift and didn’t attend the next two sessions.120

[76] Ms MacAnallly said she attended one and a half days of the three day training program offered by the Healthscope over two weeks. 121 She said she had promised to assist her daughter look after her children as her daughter was studying midwifery and she also had a commitment to voluntary work and she was given short notice. She also said when she attended the training she realised she knew little about adult nursing.122 She admitted she had not engaged in the supernumerary training.123

[77] Ms Shaw said that following the meeting of 20 January 2011 she mandated that nurses were required to attend work for their rostered shifts. An arrangement was negotiated with the QNU where the nurses would perform general office work, photocopying, data entry and some workplace health and safety audits. Ms Shaw said her preference was for the nurses to perform tasks such as bed making and non-patient related work in clinical areas; the nurses felt uncomfortable about this. 124 Ms Brickell confirmed the nature of the work was as described by Ms Shaw.125

[78] Ms Shaw identified a document titled “Change Impact Statement”  126 dated 22 November which said the proposed closure of the ward would have effect from 17 December 2010 as set out at paragraph 19 of the Agreed Statement of Facts. Ms Shaw said this document was sent to the QNU.127 Ms Shaw said that the hospital did make unsuccessful efforts to try and re-establish the ward.128 The nurses continued to come to work during this time in an empty department.129

[79] Ms Langley, the National Workforce Planner for Healthscope Limited and prior to that the National Educator gave evidence about the training provided for staff from the paediatric ward at Allamanda Hospital to transfer to management of adult patients.

[80] Ms Langley gave evidence that the three month supernumerary period is equivalent to what a third year nurse completes in their last year of training. 130 She said further that in a number of other Healthscope hospitals of a similar size and skill mix to Allamanda, such as Prince of Wales Private Hospital (NSW), Hobart Private Hospital (Tasmania), and Nepean Private Hospital (NSW), nurses work between both adult and paediatric areas. Ms Langley said with appropriate training, which is minimal, the skill set is interchangeable in a context of annual competency assessment to reflect best practice and ACHS standards.131

[81] Ms Langley was cross examined about a document titled “Standards for the Care of Children and Adolescents in Health” 132 Ms Langley said as follows:

“...in hospitals, when are dealing with children we make sure that we have staff that are trained in care of paediatrics. It doesn’t mean they have to be a purely paediatric nurse though. They just need to be able to demonstrate the key care of a child within the environment, so the majority of our hospitals - when we operate on paediatrics, all our recovery staff are trained to deal with paediatrics, and the staff that look after our post operative patients in adult hospitals still have paediatric training. They don’t necessarily work with paediatrics all the time though...”  133

Proportion of Children to Adults in Lamington Ward

[82] Paragraph 4 of the Agreed Statement of Facts explains that adult patients were admitted to the paediatric ward from time to time.

[83] There was some discussion during the case about what constituted a child for the purposes of nursing care. Ms Shaw said the clinical service framework says a child up to 14 should be admitted to a paediatric ward if there is one. Licensing requirements vary from 14 to 16 and 18. Ms Shaw said a child over the age of 12 can consent to a procedure if the independent guardian deems them competent. 134

[84] Ms Austin estimated she would have cared for between 4 and 6 adults in the paediatric ward between January 2010 and July 2010 however if the Nurse Unit Manager was on duty she would care for the adult patients. 135

[85] Ms Brickell in her statement gave estimates of the percentage of children she believed she nursed within age ranges in the paediatric ward with 60% being up to 2 years of age. 136 She said, based on the admissions book 40% of patients were under the age of 2 between January 2010 and July 2010.137 Ms Brickell defined an adult patient as over 18.138 She said it was rare for her to be required to nurse an adult patient.139 She admitted in cross examination the figures in her statement did not account for percentage of adults in the paediatric ward.140

[86] Ms MacAnally said the number of children passing through the emergency ward had decreased dramatically since the paediatric ward closed. Ms Shaw said it was now at 10 to 12% compared to 18 to 20% previously. 141 Ms MacAnally thought it was only probably twice that there was an adult in the ward while she was on shift.142

[87] Ms Shaw initially estimated the percentage of adults in the paediatric ward as 3% total but revised that to 11.72 % as an annual average 2010. 143 For the purpose of arriving at this calculation adults were defined as 18 years of age.144

[88] The nurses believed the percentage of adult patients was in the order of 3% based on the admission book.

[89] In evidence Ms Shaw explained the discrepancy between the statistics in the patient admissions book 145 and the occupancy reports attached to the further additional statement of Ms Shaw 146 using the month of February 2010 as a comparator. Ms Shaw explained admissions books were user dependant and not the most accurate record and that is why they are not kept in “99% of wards”. Further they record patient admissions not patient days. For example a patient may be in hospital for four days but is only admitted once.147 Ms Austin and Ms Brickell accepted the admission book did not count the number of days a patient was in the ward.148

[90] Ms Shaw gave evidence that it was the practice generally across the hospital that when a decision to “outlie” (placed in a ward other then the ward that specialised in the patient’s area of need) a patient with a lower acuity level was generally selected. 149

Question 1

Has the Applicant made a decision within the meaning of clause 19.4(a) of the Agreement, namely that it no longer wishes the job the Respondent has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour ?

[91] The Applicant argues this question should be answered in the negative as Healthscope has not made the relevant decision described in clause 19.4(a) of the Agreement. This is because the Applicant says the relevant position of the Respondents is a Registered Nurse Level 1 employed at the Allamanda Private Hospital and those positions continue in that capacity.

[92] The Applicant set out the generic nature of the classification of nurses under the Agreement in its outline of submission. 150 The Applicant said as no specific position descriptions were developed the broad description in the Agreement represents the description of the work performed.151

[93] The Applicant identifies that the Agreement at clause 19.1 and 19.2 places an emphasis on reskilling and redeployment. 152 Further that it is a feature of the Agreement that the scope of duties of a level 1 nurse are broad and it is within the scope and power of Healthscope to lawfully redeploy nurses into other nursing roles.

[94] The Applicant argued that the evidence of the three respondents demonstrated that the work they performed and the functions they performed were performed by other nurses in the Hospital and they were the same. 153

[95] The Applicant said the main difference was the age of the patients, however the evidence showed that 11.76% of the patients admitted into the paediatric ward were adults, and the percentage would be higher if patients under 18 who had similar characteristics to adults such as 16 years olds were included.

[96] The Applicant said there continued to be vacancies in the hospital at the time and accordingly the Respondents could be transferred to other nursing roles at the same classification, at the same hospital, working substantially the same hours and they would be the same job, therefore the jobs had not been abolished. 154

[97] Ms Austin, Ms Brickell and Ms MacAnally said they applied for jobs working solely in the paediatric ward, they were not interested in applying for any other job and that is the job they have been doing for the entire time of their employment at the Hospital.

[98] The Respondents referred to the evidence of Ms Shaw where it was said her inability to replace two nurses in the paediatric ward who did not attend for work with other nurses, at the same time as two operations which required the transfer of patients to another hospital, was evidence to support its case that not every nurse does the same job. 155

[99] The Respondents said that while evidence was given that the duties may be the same or similar in adult wards compared to paediatrics the knowledge base was different. 156

[100] The Respondent said the only factual difference between Ms Milquist, who was given a redundancy, and the three Respondents was a written contract, and in practice the three nurses jobs were defined by being employed in the paediatric ward just as much as Ms Milquist. 157

[101] The Respondents said that the job a person is doing is a question of fact not adequately answered by reference to the relevant industrial instrument. 158

[102] It was common ground that the respondent nurses were engaged for the duration of their employment in the paediatric ward, 159 ranging between 11 and 15 years, and each gave a history of their paediatric nursing experience before working at Allamanda Private Hospital.

[103] The Applicant made a decision to close the paediatric ward with the exception of the dental list on 17 December 2010. Ms Austin and Ms MacAnally gave uncontested evidence that they were approached by a representative of the hospital at the time in 1995 and 1998 respectively and recruited through an interview process for the specific role and purpose of paediatric nursing in the paediatric ward. 160 Ms Brickell’s evidence is different to the extent that she said she approached the Allamanda Hospital herself however she specifically sought and was offered employment in the paediatric ward as a Paediatric Nurse.161

[104] They each gave evidence that they applied for that role and were given the job in the paediatric ward and that was the basis for accepting the position. Each nurse has given evidence about the nature of the work they performed on a day to day basis and that is the primary evidence as to what their job was prior to the decision to close the paediatric ward. 162

[105] The Applicant said that it was accepted the jobs were not merely as broad as described in the Agreement. 163 Mr Douglas did submit however that the agreement as it currently applies supersedes any contractual arrangement that had previously been entered into. 164

[106] In this case it would appear on the evidence available that the employment offered by the hospital and accepted by the three respondents was to work as paediatric nurses in the paediatric ward. The custom and practice adopted in the employment arrangements observed over the entire period of the employment of the three nurses supports this conclusion. I do not accept that the making of the Agreement altered this arrangement.

[107] I am satisfied that the job that the respondents had been doing as referred to in clause 19.4(a) is that of a paediatric nurse in the paediatric ward. Once a decision had been made by the Applicant that the paediatric ward would close I am satisfied that the Applicant had taken a decision that it did not wish the job the three Respondents had been doing to be done by anyone. The fact that the Applicant decided it was necessary to offer a period of three months in a supernumerary role for the purpose of retraining supports the conclusion that the proposed new job is a different job.

Question 2

If question 1 is answered in the positive, has the Applicant obtained acceptable alternative employment for the Respondent for the purposes of clause 19.12 of the Agreement?

[108] As the answer to the first question is yes, the question now becomes has the employer obtained acceptable alternative employment for Ms Austin, Ms Brickell and Ms MacAnally.

[109] The authority for whether the employer has met the prerequisite standard is the Derole Nominees case. A Full Bench of the AIRC stated in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd:

“What constitutes ‘acceptable alternative employment’ is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification ‘acceptable’ is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There are probably others.”

[110] The employer bears the onus of establishing that the alternative employment obtained in a particular case is acceptable. The determination of that issue was considered in Re: Clothing and Allied Trade Unions of Australia v Hot Tuna Pty Ltd 1988, 165 where a Full Bench of the Australian Conciliation and Arbitration Commission said:

“....the test of acceptability of alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters....”.

[111] The Respondent referred to the decision of Senior Deputy President Richards in Von Bibra v Robina Autovillage. 166The Respondent referred to paragraph 25 and 26 of that decision167 to say the test of whether acceptable alternative employment has been offered is whether there is sufficient correlation between the indicia of the current work and the alternative employment.168 In Von Bibra it was found there was an insufficient correlation between wholesale sales and retail sales.

[112] The Respondents maintain their job is not that of a registered nurse, but that of a paediatric nurse. It was argued a key issue in this case was that each of the Respondents gave evidence they did not know what would happen at the end of the three months, and therefore the offer was far removed from the seniority, security and nature of the paediatric ward jobs. 169 The Respondents also argue the positions were not of a like nature, outside their exiting skill set, experience and consist of different duties and therefore the test as described in Von Bibra is relevant.170 It was argued that it is not unreasonable when an employee has progressed a fair way into their career to say they simply don’t want to start a new job.171

[113] The Applicant argued to the contrary there is sufficient correlation between the work performed and offered in this case, the only difference being the age of the patients. 172 The Applicant also referred to a decision of Commissioner Smith in CPSU v Excelior173where he said:

“It appears to be that a number of factors fall in favour of the new positions being considered as acceptable alternative employment. They are the duties have similar work value. This is demonstrated by the fact that there has been no need to alter the classification of these employees under the new agreement and the work is in the same location.”

[114] The Applicant said this case is directly comparable to the CPSU case as the respondents will be employed at the same hospital, in the same classification performing the same work. 174 The Applicants also referred to a decision of Commissioner Asbury in Baywood Products Pty Ltd v Mr Mervyn Inall175 where it was found an offer of alternative employment was acceptable where the offer was for a different mix of duties, because there were no duties not performed in the old position and no duties that could not have been lawfully or reasonably required to be performed.

[115] The Applicant argued that the supernumerary position was not the position offered but was part of the training that the company offered to the employees so that they could make the transition from the paediatric ward to the emergency ward in the case of Ms Austin and Ms MacAnally or the Binna Burra ward in the case of Ms Brickell. 176

[116] The Applicant said the evidence clearly showed the Respondents did not want to work with adults, they wanted to work with children and that was “at the kernel of the concern they have.” The Applicant said Hot Tuna and Derole make it clear that the subjective views of the employees are not a relevant consideration. 177 The test is an objective test not a subjective one.

[117] The Applicant then referred to the Agreement itself at clause 19 which deals with circumstances where organisational change occurs. The Applicant says the steps required to be followed in clause 19 of the Agreement require all possible steps be taken to avoid job losses 178 and was squarely a central issue matter here.

[118] Clause 19.1 includes the following:

“Healthscope highly values its staff as a critical element in the provision of quality service. Healthscope is committed, wherever possible, to retaining the services of and offering ongoing opportunities to, current staff members. Healthscope seeks to avoid job losses through measures including redeployment and voluntary flexible working arrangements.”

[119] Clause 19.2 reads as follows:

“Where job losses are unavoidable, Healthscope will explore all measures available to it to minimise involuntary redundancies. In addition to the above measures, these may include

(a) voluntary early retirement,

(b) voluntary redundancy,

(c) reskilling

(d) redeployment opportunities and

(e) natural attrition.”

[120] Clause 19.12 reads as follows:

“19.12 Alternative employment

(a) An employer, in a particular case, may through the grievance procedure have'

the general severance pay prescription amended if the employer 'obtains

acceptable alternative employment for an employee.

(b) In the first instance the Hospital will seek to redeploy the employees to another

position within their area of the organisation. Redeployment shall operate on

the following terms:

(i) Staff shall be appropriately trained for the areas that they are redeployed

to within their designated classification.

(ii) If a staff member accepts redeployment.to a job attracting a lower level

of pay they shall maintain their current level of pay (including wage

adjustments) for a period of 3 months.

(iii) If it is not possible to redeploy sufficient staff to meet requirements then

management will advertise expressions of interest for voluntary

redundancies.

(iv) If insufficient applications are obtained then a process of forced

redundancies will take place.”

[121] The Applicant said no significant effort was made by the Respondents to take up that offer of training and significant weight should be given to the fact that two other nurses have been successfully re-deployed. 179

[122] The Applicant also drew attention to the evidence of Ms Langley that in other hospitals of a similar nature there are wards where there are paediatric patients and adult patients together. 180 The Applicant argued what is obvious in this case is not that the nurses can’t perform the work; it is that they do not want to perform the work and that is not the test, as it is an objective test. Further it is said the security of their jobs has not changed, and nor has their seniority. The only change will be that they acquire a further set of skills.

[123] The Respondent relies on Accreditation Standards to say one registered nurse is not the same as another, and the competency of the nurse is relevant.

[124] The Respondent says that as the three nurses did not accept the offers of redeployment, their employment was at an end and therefore asserted their right to severance pay. 181

[125] I reject the assertion made for the Respondents that the offers made by the Applicant were not acceptable alternative employment on the basis that the three nurses did not know what would happen at the end of the three month training period. Paragraphs 22, 24, 25 and 26 of the Agreed Statement of Facts when considered in conjunction with the evidence set out above satisfies me that it should have been sufficiently clear to the three Respondents that the offers made were for a continuation of ongoing permanent employment in the respective areas that had been nominated. The evidence demonstrates the three month supernumerary period was for the purpose of retraining and Ms Shaw was clear on this point.

[126] There is no evidence to suggest the offer was couched in terms that the Applicant was reserving its position with regard to ongoing permanency. To the contrary the evidence clearly demonstrates that the Applicant was going to considerable efforts to ensure that the future employment of the three Respondents would be permanent and ongoing. This extended to an offer of further training beyond the three month supernumerary period in the event the Respondents believed it was necessary. The actions of the Applicant in this regard were entirely in keeping with the language in clause 19.1 and 19.2 of the Agreement. On this basis I do not accept the argument that the three Respondent’s employment was less secure.

[127] I am also satisfied that the evidence is reasonably clear that in the case of all three Respondents they held a clear personal preference to continue in paediatric nursing and not to work in adult nursing. The evidence also indicates to me that the personal preference of the three Respondents was a significant motivation in each case in deciding to reject the offers made to them. The Applicant is correct to assert that the subjective preferences of the three nurses are not a relevant consideration in determining whether the offers made were acceptable alternative employment.

[128] I am also satisfied in consideration of the tests in Derole Nominees that the offers made by the Applicant were of a like nature, the location was clearly the same hospital, and the pay arrangements would be the same, the Applicant even going as far as to offer to protect penalty payments and previous hours of work arrangements.

[129] I do not accept the assertion made for the three Respondents that their level of seniority would inevitably be lower. Clearly their classification level was unchanged. While they would not have the same length of service in the changed nursing environment as other nurses they would bring with them many years of experience from paediatric nursing. The evidence regarding the similarities between paediatric nursing and nursing in the positions offered indicates much of this experience was readily transferrable. The evidence of the three nurses themselves concedes that many of the functions of a nurse in a paediatric ward are the same or similar to that of a nurse in an adult ward.

[130] The evidence also demonstrates that while the three nurses were not required to nurse adult patients in the paediatric ward on a regular basis, the presence of adult patients in the paediatric ward from time to time and the practice of nurses in the paediatric ward delivering nursing care to those adults needs to be considered in the light of the evidence of Ms Langley that in other Healthscope hospitals of a similar nature to Allamanda hospital adults and paediatric patients share wards as standard practice.

[131] I cannot accept when consideration is given to the duties previously performed, the skills and qualifications possessed and experience held by the three Respondents that the offers of redeployment to continue nursing in another part of the hospital with the associated retraining program specifically designed for their needs, and all of the other accommodations offered regarding hours of work, were not offers of acceptable alternative employment.

[132] Contrary to the submission for the Respondent regarding Von Bibra, I find there is sufficient correlation between relevant indicia of the work of a paediatric nurse and the alternative work offered in the emergency ward and Binna Burra ward.

[133] On the basis of the authorities referred to above, the terms of the Agreement and the other findings I have made above I find the offers were of acceptable alternative employment.

Question 3

If question 2 is answered in the positive, should the general severance pay prescription be amended in any way?

[134] Both clause 19.12 of the Agreement, and section 120 of the FW Act provide the capacity for the Applicant to bring the application for FWA to determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

[135] The National Employment Standards prevail over other instruments of employment. As the severance pay entitlements under clause 19.9 of the Agreement are more generous than the NES at the higher end of the scale I will address both. The Applicant says two other nurses have been successfully redeployed and the circumstances of the two nurses made redundant can be distinguished from the three Respondents. 182

[136] The Respondents referred to clause 19.2 which refers to voluntary early retirement and voluntary redundancy as options to minimise involuntary redundancy. Attention was drawn to the age of Ms Brickell being 57 and Ms MacAnnally being 58.

[137] The Respondent said the loss of skill and experience that would be suffered should be taken into account in determining whether some severance should be paid. The Respondent also said regard should be given to the amount of Ms MacAnally’s unused sick leave. 183

[138] I am satisfied that the evidence demonstrates that the Applicant complied with its obligation to consult with the Respondents in accordance with the terms of clause 13.1 of the Agreement.

[139] I agree with the Applicants submission that the Agreement emphasises redeployment where possible in preference to termination and the age of the Respondents of itself is not a basis to award severance.

[140] For reasons set out above I do not accept the experience of the Respondents will be lost on the basis that many of their skills are transferable.

[141] There is no suggestion the continuity of service of the three Respondents will not be maintained and therefore sick leave and all other entitlements will continue to accrue. This is an important point because it is generally recognised in the Termination, Change and Redundancy case of 1984 in relation to redundancy, that redundancy pay is compensation (or consideration) for a wide range of matters affected by the loss of employment:

“Having regard to other aspects of our decision and having regard to what we have said about the existence of, and the reason for, unemployment benefits we do not believe that the primary reason for the payment for severance pay relates to the requirement to search for another job and\or to tide over an employee during a period of employment.

...

We prefer the view that the payment of severance pay is justifiable as compensation for non-transferable credits and the inconvenience and hardship imposed on employees.” 184

[142] Putting aside the issue of inconvenience or hardship it appears from the Commission’s reasoning that redundancy pay is “…compensation for non-transferable ‘credits’ that have been built up, such as: accrued benefits like sick leave and long service leave; loss of seniority; and loss of the employer’s contributions to pension or superannuation.” 185

[143] I am satisfied in the case of the three Respondents there is no basis for compensation for loss of non-transferrable credits as no loss has occurred. I also do not believe there is a basis for the awarding of redundancy pay on the basis of inconvenience or hardship as there has been no loss of employment or reduction in pay. On that basis I have determined that the answer to question 3 is yes, and I have decided to reduce the redundancy entitlement to nil. An Order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr John Douglas, the General Manager - Employee Relations for the Applicant (Healthscope)

Mr Ben Green of Hall Payne Lawyers for the three Respondents

Hearing details:

11th and 12th July 2011

 1   Exhibit 16 Statement of facts

 2   Exhibit 15 Questions for Arbitration

 3   Transcript dated 12 July 2011 PN1420-1426

 4   Exhibit 1 Statement of Ms Caroline Shaw dated May 2011

 5   Exhibit 2 Additional Statement of Ms Caroline Shaw dated 30 June 2011; Exhibit 3 Further additional Statement of Ms Caroline Shaw dated 8 July 2011.

 6   Exhibit 1 Statement of Ms Caroline Shaw dated May 2011 paragraph 3

 7   Transcript dated 11 July 2011 PN64 - 65

 8   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 attachment FA1

 9   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 4

 10   Transcript dated 11 July 2011 PN630-635

 11   Exhibit 9 Statement of Ms Lynne MacAnally dated 30 June 2011 Paragraph 2-8

 12   Transcript dated 12 July 2011 PN1142-1144

 13   Transcript dated 11 July 2011 PN937-939

 14   Transcript dated 11 July 2011 PN315

 15   Transcript dated 11 July 2011 PN316

 16   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 33

 17   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 34

 18   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 35

 19   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 attachment FA5

 20   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 37

 21   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 41; Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 Paragraph 35.

 22   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 attachment FA6

 23   Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 Paragraph 39

 24   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 attachment FA8

 25   Transcript dated 11 July 2011 PN111-115

 26   Transcript dated 11 July 2011 PN211

 27   Transcript dated 11 July 2011 PN118-120

 28   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 45

 29   Transcript dated 11 July 2011 PN754

 30   Transcript dated 11 July 2011 PN66

 31   Transcript dated 11 July 2011 PN69

 32   Transcript dated 11 July 2011 PN72

 33   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 8 and attachment FA3

 34   Transcript dated 11 July 2011 PN89

 35   Transcript dated 11 July 2011 PN90

 36   Transcript dated 11 July 2011 PN653-654

 37   Transcript dated 11 July 2011 PN656

 38   Exhibit 9 Statement of Ms Lynne MacAnally dated 30 June 2011 paragraph 22

 39   Transcript dated 11 July 2011 PN149

 40   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 4

 41   Transcript dated 11 July 2011 PN699

 42   Transcript dated 11 July 2011 PN704; Transcript dated 11 July 2011 PN 715-720

 43   Transcript dated 11 July 2011 PN100

 44   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 28

 45   Transcript dated 11 July 2011 PN103

 46   Transcript dated 11 July 2011 PN84

 47   Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 paragraph 16

 48   Transcript dated 11 July 2011 PN145

 49   Transcript dated 12 July 2011 PN1239

 50   Exhibit 9 Statement of Ms Lynne MacAnally dated 30 June 2011 paragraph 16

 51   Transcript dated 12 July 2011 PN1244

 52   Transcript dated 12 July 2011 PN1250; PN1288-1289

 53   Transcript dated 12 July 2011 PN1356

 54   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 paragraph 15 to 44

 55   Transcript dated 11 July 2011 PN179

 56   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 paragraph 32

 57   Transcript dated 11 July 2011 PN1009-1016

 58   Transcript dated 11 July 2011 PN1024

 59   Transcript dated 11 July 2011 PN1088-1089

 60   Exhibit 1 Statement of Ms Caroline Shaw dated May 2011 page 9

 61   Transcript dated 11 July 2011 PN219-220

 62   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 11 and 12

 63   Transcript dated 11 July 2011 PN93

 64   Transcript dated 11 July 2011 PN701-702

 65   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 13

 66   Transcript dated 11 July 2011 PN96

 67   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 paragraph 48; Transcript dated 11 July 2011 PN756

 68   Transcript dated 11 July 2011 PN763

 69   Transcript dated 11 July 2011 PN314; Transcript dated 11 July 2011 PN393-394

 70   Transcript dated 11 July 2011 PN123

 71   Transcript dated 11 July 2011 PN390-392

 72   Transcript dated 11 July 2011 PN317-319

 73   Transcript dated 11 July 2011 PN396

 74   Transcript dated 11 July 2011 PN767-779

 75   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 49

 76   Transcript dated 11 July 2011 PN82

 77   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 50

 78   Transcript dated 11 July 2011 PN127

 79   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 53; Transcript dated 11 July 2011 PN672-673.

 80   Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 Paragraph 41

 81   Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 Paragraph 27 and 28

 82   Transcript dated 11 July 2011 PN152-153

 83   Transcript dated 11 July 2011 PN145

 84   Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 Paragraph 41 - 43

 85   Transcript dated 11 July 2011 PN159-160

 86   Transcript dated 12 July 2011 PN1173

 87   Transcript dated 12 July 2011 PN1174

 88   Exhibit 9 Statement of Ms Lynne MacAnally dated 10 June 2011 Paragraph 50

 89   Transcript dated 12 July 2011 PN1176 - 1177

 90   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 55

 91   Transcript dated 12 July 2011 PN1170

 92   Transcript dated 12 July 2011 PN1337

 93   Transcript dated 12 July 2011 PN1338

 94   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 47

 95   Transcript dated 11 July 2011 PN180-181

 96   Transcript dated 11 July 2011 PN1026

 97   Transcript dated 11 July 2011 PN185

 98   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 52

 99   Transcript dated 11 July 2011 PN182

 100   Transcript dated 11 July 2011 PN186

 101   Transcript dated 11 July 2011 PN1053

 102   Transcript dated 11 July 2011 PN1055-1056

 103   Transcript dated 11 July 2011 PN1071

 104   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 56

 105   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 59

 106   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 attachment FA10

 107   Transcript dated 11 July 2011 PN789-796

 108   Transcript dated 11 July 2011 PN865

 109   Transcript dated 11 July 2011 PN129

 110   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 attachment CB8

 111   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 50

 112   Transcript dated 11 July 2011 PN183

 113   Transcript dated 11 July 2011 PN1027-1045

 114   Transcript dated 11 July 2011 PN130

 115   Transcript dated 11 July 2011 PN131

 116   Transcript dated 11 July 2011 PN161

 117   Transcript dated 11 July 2011 PN320-323

 118   Transcript dated 11 July 2011 PN133

 119   Exhibit 6 Statement of Ms Francine Austin dated 16 June 2011 Paragraph 60

 120   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 56

 121   Transcript dated 12 July 2011 PN1297

 122   Transcript dated 12 July 2011 PN1301

 123   Transcript dated 12 July 2011 PN1303

 124   Transcript dated 11 July 2011 PN168-170

 125   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 57

 126   Exhibit 1 Statement of Ms Caroline Shaw dated May 2011 attachment HSP3

 127   Transcript dated 11 July 2011 PN411

 128   Transcript dated 11 July 2011 PN417

 129   Transcript dated 11 July 2011 PN363-369

 130   Exhibit 4 Statement of Ms Fiona Langley Paragraph 5

 131   Exhibit 3 Further additional Statement of Ms Caroline Shaw dated 8 July 2011 Paragraph 9

 132   Exhibit 5 Standards for the care of children

 133   Transcript dated 11 July 2011 PN484

 134   Transcript dated 11 July 2011 PN177

 135   Transcript dated 11 July 2011 PN641

 136   Exhibit 7 Statement of Ms Cheryl Brickell dated 9 June 2011 Paragraph 16

 137   Transcript dated 11 July 2011 PN941-945

 138   Transcript dated 11 July 2011 PN951

 139   Transcript dated 11 July 2011 PN954

 140   Transcript dated 11 July 2011 PN997-1007

 141   Transcript dated 11 July 2011 PN162

 142   Transcript dated 12 July 2011 PN1152

 143   Exhibit 2 Additional Statement of Ms Caroline Shaw dated 30 June 2011 Paragraph 5 attachment HSP9; Exhibit 3 Further additional Statement of Ms Caroline Shaw dated 30 June 2011 Paragraph 6; Exhibit 2 Additional Statement of Ms Caroline Shaw dated 30 June 2011 Paragraph 8 HSP attach 13 and 14; Exhibit 3 Further additional Statement of Ms Caroline Shaw dated 30 June 2011 Paragraph 9 and Attach HSP 15; Transcript PN231

 144   Transcript dated 11 July 2011 PN253

 145   Exhibit 8 Admissions Book

 146   Exhibit 3 Further additional Statement of Ms Caroline Shaw dated 30 June 2011 attachment 13

 147   Transcript dated 11 July 2011 PN269-275

 148   Transcript dated 11 July 2011 PN828 and PN994

 149   Transcript dated 11 July 2011 PN281-291

 150   Exhibit 12 Outline of Healthscope’s Submssion dated 30 June 2011 Paragraph 5

 151   Exhibit 12 Outline of Healthscope’s Submssion dated 30 June 2011 Paragraph 6

 152   Exhibit 12 Outline of Healthscope’s Submission dated 30 June 2011 Paragraph 7 - 10; Exhibit 12 Outline of Healthscope’s Submission dated 30 June 2011 Paragraph 13

 153   Transcript dated 12 July 2011 PN1435

 154   Transcript dated 12 July 2011 PN1437

 155   Transcript dated 12 July 2011 PN1481

 156   Transcript dated 12 July 2011 PN1483

 157   Transcript dated 12 July 2011 PN1486

 158   Transcript dated 11 July 2011 PN606

 159   Exhibit 16 Agreed Statement of Facts Paragraph 6, 7 and 8

 160   Transcript dated 11 July 2011 PN630-635 and Transcript dated 12 July 2011 PN1142 - 1144

 161   Transcript date 11 July 2011 PN937-939

 162   Transcript date 11 July 2011 PN610

 163   Transcript date 11 July 2011 PN 1435

 164   Transcript date 11 July 2011 PN1434

 165 [27 IR 226] pp.230-231.

 166   [2007] AIRC 397.

 167   Transcript date 11 July 2011 PN565-567

 168   Transcript date 11 July 2011 PN570

 169   Transcript date 12 July 2011 PN1492

 170   Transcript date 12 July 2011 PN1499; PN1493

 171   Transcript date 12 July 2011 PN1495

 172   Transcript date 12 July 2011 PN1508

 173   [2008] AIRC 784.

 174   Transcript date 12 July 2011 PN1444

 175   [2010] FWA 9303 paragraph 46.

 176   Transcript date 12 July 2011 PN1446

 177   Transcript date 12 July 2011 PN1448

 178   Transcript date 12 July 2011 PN1509

 179   Transcript date 12 July 2011 PN1462

 180   Transcript date 12 July 2011 PN1510

 181   Transcript date 12 July 2011 PN1487

 182   Transcript date 12 July 2011 PN1459-1461

 183   Transcript date 12 July 2011 PN1504

 184 Termination, Change and Redundancy Case, Moore P, Maddern J, Brown C, 2 August 1984 [8 IR 34].

 185 Termination, Change and Redundancy Case, Moore P, Maddern J, Brown C, 2 August 1984 [8 IR 34] at 73.

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