Mandy Kerryn Loechel v The Royal Children's Hospital

[2021] FWC 6610

[2021] FWC 6610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mandy Kerryn Loechel
v
The Royal Children’s Hospital
(C2021/5318)

COMMISSIONER MCKINNON MELBOURNE, 15 DECEMBER 2021

Application to deal with a dispute under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 - clause 31 - qualification allowance - whether relevant qualification.

[1] Ms Mandy Loechel is a Clinical Nurse Specialist employed by the Royal Children’s Hospital in Victoria. In October 2019, she completed a graduate diploma in law. Ms Loechel wishes to be recognised for her studies by payment of a qualification allowance under clause 31 of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020. The Hospital says Ms Loechel is not entitled to the qualification allowance because her qualification is not relevant to her role.

[2] The question is whether the graduate diploma is a relevant qualification for the purposes of clause 31.

[3] I have decided that the graduate diploma is a relevant qualification and that Ms Loechel is entitled to payment of the qualification allowance from the first full pay period on or after 11 July 2020. I have not decided the broader issue of the process adopted by the Hospital for dealing with applications for qualification allowance, which is of a collective nature. That issue is more appropriately dealt with by the Hospital and its employees either in bargaining or in the development of policies or procedures at the appropriate time.

[4] These are my reasons for the decision.

Qualification allowance

[5] Clause 31 of the Agreement deals with the qualification allowance. The relevant terms are found at clauses 31.1-3, which provide:

“31 Qualification Allowance

NOTE: see subclause 4.2 (Definitions) regarding the interpretation of relevance.

31.1 Entitlement

(a) An Employee will be entitled to a qualification allowance, where an Employee has a:

(i) relevant qualification in addition to their base nursing or midwifery qualification; or

(ii) base qualification that is a double degree or Masters degree.

(b) In the case of the entitlement under subclause 31.1(a)(ii), the qualification allowance will be payable after one year of experience in an area where the qualification is relevant.

31.2 One Qualification Allowance Only

An Employee holding more than one qualification is entitled to one qualification allowance only, being the allowance for the highest qualification held.

31.3 Evidence

(a) An Employee claiming entitlement to a qualification allowance must provide to the Employer evidence of that Employee holding the qualification for which the entitlement is claimed.

(b) An Employee will meet the evidence requirements when they have provided the Employer with evidence from the education / training provider that would satisfy a reasonable person that the Employee has obtained the qualification for which the allowance is claimed, for example:

(i) the award of the qualification; or

(ii) the certificate of the qualification; or

(iii) transcript from the education/training provider; payable from the FFPPOOA on or after the evidence is provided.”

[6] Clause 4.2 of the Agreement deals with when a qualification is “relevant” for the purposes of the Agreement, including clause 31:

“4.2 Relevant qualification/relevant component of a qualification etc.

Where a provision of this Agreement requires consideration of the relevance of a qualification or certificate (including components of a qualification or certificate) or course of study or similar (education):

(a) the main criteria for considering relevance are:

(i) the nature of the education and

(ii) the current area of practice of the Employee; and

(b) other considerations may include:

(i) the clinical or other area of work of the Employee;

(ii) the classification and position description of the Employee; and /or

(iii) whether the education would assist the Employee in performing her or his role and/or assist in maintaining quality patient care and/or assist in the administration of the ward/unit/area in which the Employee is employed.”

[7] As can be seen, consideration of relevance is not limited to whether the qualification will contribute to clinical practice.

Ms Loechel’s role

[8] The role of Clinical Nurse Specialist is defined in the Agreement at clause 83. A Clinical Nurse Specialist is a registered nurse who is:

“(a) appointed to the grade with either specific post basic qualifications and 12 month’s Experience working in the clinical area of her/his specified post basic qualification, and is responsible for clinical nursing duties, or minimum of four years post registration Experience, including three years’ Experience in the relevant specialist field; and

(b) who meets the criteria set out at Appendix 4.

Applicants must meet the above definition, be employed either full time or part time and demonstrate the criteria in each of paragraphs 1, 2 and 3 of Appendix 4. The process for applying for a Clinical Nurse Specialist position is set out at 83.4 below.”

[9] Separately to the Agreement, the Clinical Nurse Specialist position description describes the role as “a clinical expert in an area of nursing specialisation [who] accepts responsibility for professional activities that support service delivery and the professional development of self and others.” Key accountabilities of the role include documenting appropriately and accurately, contributing to the development, implementation and evaluation of standards of practice, policies, procedures and guidelines, actively contributing to unit quality-improvement initiatives, identifying practice problems and using resources to address practice issues through research or quality improvement, and serving as a resource or committee member to groups within the unit or organisation.

[10] On appointment to the role of Clinical Nurse Specialist in the Hospital’s Butterfly Unit, Ms Loechel’s project/portfolio was described as “Butterfly ANMF Representative and Documentation Improvement and efficiency (Legal Implications).”

Is the graduate diploma a relevant qualification?

[11] Ms Loechel will be entitled to the qualification allowance if she has a relevant qualification in addition to her base nursing or midwifery qualification. Contrary to the parties’ submissions, it is not also necessary for Ms Loechel to have had one year of experience in the area where the qualification is relevant. This requirement only applies where the employee’s base qualification is a double degree or Masters degree. There is no evidence of this in relation to Ms Loechel, and to the extent that it is relied upon, the graduate diploma is not a degree.

[12] Is a graduate diploma in law relevant to Ms Loechel’s work? The course is legal in nature, covering legal reasoning and general legal principles across a range of core subjects known in the legal profession as the “Priestley 11”. Ms Loechel’s area of practice is nursing in the Hospital’s high dependency and neonatal intensive care units, caring for newborn babies. Seen in isolation, a graduate diploma in law has limited relevance to the performance of clinical work by a registered nurse. It would not ordinarily create an entitlement to qualification allowance for nursing employees.

[13] However, and as the Hospital has observed, each case must be assessed on its merits. In Ms Loechel’s case, her role as Clinical Nurse Specialist spans areas of work that are not only clinical but also quasi-legal. While the role of union representative does not require legal qualifications, it is likely enhanced by them. This might be in the giving of enterprise agreement and contractual advice, or representing others in industrial disputes, or negotiating settlement outcomes. The role is voluntary and for the benefit of the union, but it is also a role endorsed by the Hospital. Critically, it was relied upon by the Hospital as a basis for Ms Loechel’s appointment as a Clinical Nurse Specialist.

[14] In a similar way, legal skill and knowledge is relevant to Ms Loechel’s work on the legal implications of documentation improvement and efficiency. According to the Hospital’s Documentation: Medical Records policy, documentation is an important medico-legal requirement which provides written evidence of care and clinical handover. Understanding the legal implications of quality, efficient record keeping, providing training to others on the subject and working to improve documentation practices within the unit, including during clinical handover, are functions that can only be enhanced by the application of general legal skills.

[15] Neither Ms Loechel’s classification as a registered nurse, nor the position description for Clinical Nurse Specialist, require legal qualifications. But a graduate diploma in law will help Ms Loechel to assist in the administration of the units where she works because of the nature of her work, and its particular focus on the legal implications of documentation improvement and efficiency.

[16] On balance, I find that the graduate diploma in law is relevant to Ms Loechel’s role and is in addition to her base nursing qualification. It has a bearing upon her role and a connection to the functions she performs as Clinical Nurse Specialist. Ms Loechel is entitled to the qualification allowance under clause 31.1(a)(i) of the Agreement.

Operative date

[17] Clause 31 requires an employee who seeks payment of the qualification allowance to provide evidence that they hold the qualification for which the allowance is claimed. Ms Loechel met this requirement on 11 July 2020, by email to her then Nursing Unit Manager. In accordance with clause 31.3(b)(iii) of the Agreement, the allowance is payable from the first full pay period on or after 11 July 2020.

[18] The dispute is determined accordingly.

COMMISSIONER

Determined on the papers.

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