Miss Deidre Frost v Uniting Care Health T/A Buderim Private Hospital
[2021] FWC 4018
•9 JULY 2021
| [2021] FWC 4018 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Miss Deidre Frost
v
Uniting Care Health T/A Buderim Private Hospital
(C2020/6608)
COMMISSIONER BOOTH | BRISBANE, 9 JULY 2021 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Application under s.739 – Dispute concerning the UnitingCare Health & QNMU - Nurses and Midwives - Enterprise Agreement 2018 – 2021 and Uniting Care Health and QNU Nurses EA 2012-2015 – eligibility for qualification allowance under agreement – agreed statement of facts filed – agreed question for arbitration.
[1] Ms Deidre Frost (Applicant/Employee) brought this dispute to the Fair Work Commission (Commission) under section 739 of the Fair Work Act 2009 (Act). She has been employed since 11 April 2012 as a Nurse-Midwife at Buderim Private Hospital, operated by Uniting Care Health (Uniting Care/UCH/Respondent).
[2] The dispute is about Ms Frost’s entitlement to be paid a qualification allowance for her midwifery qualification and the timing of any entitlement under current and historical industrial instruments, namely:
● Uniting Care Health & QNMU -Nurses and Midwives - Enterprise Agreement 2018 - 20211 (2018 Agreement), the currently applicable Agreement;
● UnitingCare Health & QNU Nurses Enterprise Agreement 2015 – 2018 (2015 Agreement);
● Uniting Care Health and QNU Nurses EA 2012-2015 (2012 Agreement); and
● UnitingCare Health and Queensland Nurses Union Enterprise Agreement (Nurses) 2009-2012 (2009 Agreement).
[3] The dispute is brought under clause 3.5 of the 2018 Agreement. The Agreement provides for various allowances including in clause 5.7 and Appendix 2, qualification allowances:
“5.7 Qualification allowance
5.7.1 A full-time, part-time or casual employee may be eligible to receive the following
qualification allowances, subject to satisfaction of the criteria set out in this clause. These allowances do not cover basic Registered Nurse qualifications. The weekly allowance is paid on a pro rata basis. Refer to Appendix 2 – Allowances for the rates for:
i. Hospital Certificate or Graduate Certificate;
ii. Post Graduate Diploma or Degree (other than nursing or undergraduate degree);
iii. Masters or Doctorate.
5.7.2 The allowance is available for Levels 1, 2 and 3 Registered Nurses and Midwives who hold relevant qualifications, for example:
- Intensive Care Nursing
- Operating Theatre
- Midwifery
- Mental Health
- Paediatric
5.7.3 The allowance is payable to an employee who holds a qualification from a course which is of at least one year’s (or two academic semesters) duration as approved by UCH.
5.7.4 The allowance is only payable to the employee while they undertake duties that are relevant to the prescribed qualification.
5.7.5 Where an employee holds 2 or more relevant qualifications, the allowance is only payable in respect of one qualification. If the employee holds one qualification of a higher level, that qualification will be paid to the exclusion of the lower qualification.
5.7.6 Employees who believe they may be eligible for payment of a qualification allowance shall make application to the appropriate Director. Applicants shall be required to provide appropriate supporting documentation attesting to their qualifications. Eligibility will be determined by the relevant Director. In determining eligibility for the qualification allowance, the Director may also consider qualifications that do not meet the criteria of clause 5.7.2.
5.7.7 Subject to production of supporting documentation being provided within 4 weeks, the employer will adjust previous payments back to the date of commencement. Any employee unable to provide proof of documentation within 4 weeks of engagement will
not be paid the allowance until such time that the supporting documentation is provided.
The allowance will then be paid from the first pay period on or after the date of production.
5.7.8 Any disputes arising from this process shall be dealt with in accordance with Clause 3.5 Dispute resolution.”
“…
Appendix 2
Allowance | Frequency | Clause | 31/07/2018 | 31/07/2019 | 31/07/2020 |
Qualification - Certificate | per week | 5.7.1(i) | $20.63 | $21.15 | $21.68 |
Qualification - Diploma | per week | 5.7.1(ii) | $25.80 | $26.45 | $27.11 |
Qualification - Masters | per week | 5.7.1(iii) | $34.40 | $35.26 | $36.14 |
…”
Jurisdiction to deal with the dispute
[4] In the initial stages both parties made submissions about the jurisdiction of the Commission to deal with the dispute, including the power of the Commission to award compensation or make monetary orders, and under which agreement (if any) the Commission has power to deal with the dispute.
[5] Initially UCH raised an argument in reliance on Simplot2aboutdisputes under agreements that have ceased to apply. Neither the monetary award point nor Simplot were pressed at hearing. I am satisfied that the dispute is properly made under the 2018 Agreement and that, notwithstanding the history of the dispute from 2012 to 2019, I have jurisdiction to deal with the dispute as it arose under the 2018 Agreement. I am also satisfied that the outcome sought by Ms Frost in determining the dispute will not require making a monetary order.
[6] The parties have put a question for arbitration before the Commission and I am satisfied that it is appropriate for it to be answered in this decision.
Arbitration question
[7] The agreed question for arbitration is as follows.
Was the midwifery qualification allowance payable to Ms Frost under clause 5.7 of the UnitingCare Health & QNU Enterprise Agreement 2018-2021 (2018 Agreement) if she held the relevant midwifery qualification, submitted documentation attesting to her holding a midwifery qualification and undertook duties relevant to the midwifery qualification prior to her making the required application and receiving the required approval under 5.7.3 or 5.7.6?
Procedure
[8] The matter proceeded somewhat unusually in three phases. First, the parties were represented in-house (Ms Frost by her Union) and the issues were wide ranging. As complexities were revealed, both parties were legally represented with permission, and the issues were narrowed considerably. An agreed statement of facts was filed 3, and no further evidence was adduced at hearing; and the arbitration question agreed. Third, submissions were made in writing before hearing in accordance with directions, and orally at hearing.
[9] The parties by consent preferred that the Respondent would file its submissions first and the Applicant would respond. The Commission agreed, and directions were issued accordingly.
Facts and submissions
[10] The agreed statement of facts is attached to this decision (Annexure A). It states the relevant facts appropriately and is adopted without the need for elaboration here.
[11] Matters of fine distinction remained core to the competing positions, shortly stated as follows.
[12] Ms Frost provided her relevant qualifications as part of her initial employment in 2012, including her midwifery certificate, gained from the North Brisbane Hospitals Board on 17 October 1977. She made no separate application for payment of the allowance until 25 July 2019. She claims the production of the certificate in her recruitment was adequate to entitle her to the allowance from commencement or at least, from the date she provided the midwifery certificate (if that was not within 4 weeks of commencement).
[13] UCH argues that the agreement requires a separate application both on the plain meaning of the words of clause 5.7.6 and for practical purposes including proper accountability for the qualification allowance. Other allowances under the Agreements that do not require a decision are those arising from the character of work – shifts and meals for example – while there are others that do require application and approval, such as private use of motor vehicles, usually because information must be provided by the employee or verification is necessary.
[14] UCH’s case is that the entitlement to be paid arises from application and approval, and not from the fact of having the qualification and undertaking the work. If application is made within the first 4 weeks of employment, the entitlement applies from commencement, otherwise from a later date ascertainable under clause 5.7.7. UCH’s position is that the later date is relevant here, being the first pay period after production of the qualification in the application process.
[15] QNMU for Ms Frost argued the provision of documents for Ms Frost’s initial employment was sufficient for her to be entitled to be paid the allowance without separate application. Further, it argued Ms Frost was entitled, under the Agreements, by her 2019 application and the approval, to be paid the allowance and backpay from her commencement to 27 August 2019, after which the approval authorised payment going forward.
[16] Many finer points were raised in submissions, and relevant ones are discussed below.
Consideration
[17] The dispute is one of proper interpretation of clauses in an enterprise agreement, and the application to the facts of this case. The parties agreed on the relevant principles for interpretation in orthodox terms 4 but differed on what the proper interpretation should be, each arguing the other’s interpretation required a degree of ‘rewriting’.
[18] Much turns on the requirement for ‘application’, stated without the term being defined in the 2009 Agreement as follows, and identically worded in later agreements (with different numbering) 5:
“4.7.8 Employees who believe they may be eligible for payment of a qualification allowance shall make application to the appropriate Director. Applicants shall be required to provide appropriate supporting documentation attesting to their qualifications. Eligibility will be determined by the relevant Director. In determining eligibility for the qualifications allowance, the Director may also consider qualifications that do not meet the criteria of clause 4.7.4.”
[19] In passing, I note this formulation and variations are common in agreements covering Queensland private health workplaces. A basic search revealed over 50 Agreements that contain similar application requirements. Some explicitly state the need for separate application; others do not.
Application
[20] It is apparent there is ambiguity as to what constitutes ‘application’.
[21] The Macquarie Dictionary relevantly defines application as “the act of requesting” or “a written or spoken request or appeal.”
[22] The 2018 Agreement has many clauses relevant to employee entitlements that refer variously to notice, application or to a specific application form, for example:
• 3.3.3 (leave for consultative forum training – no form mentioned)
• 3.4.3 (Workload Management Issue form)
• 6.4.3 (notice seeking change of roster – no form mentioned)
• 6.5 (specific rest break issues – form attached to Agreement)
• 6.14.3 (12 hour shift – form attached to Agreement)
• 7.1.7 (application for leave form)
• 7.1.11 (application for pre-purchased leave – no form mentioned)
• 7.1.12 (application to cash out leave form)
• 7.4.3 (notice of compassionate leave – no form mentioned)
• 7.5.9 and 7.5.11 (notice of parental leave – no form mentioned)
• 7.4.12 (notice of request for extension of parental leave – no form mentioned)
• 7.6.3 (application for long service leave form)
• 7.7.3 (notice of expected absence no form except jury leave - Application for leave form)
• 7.8 (leave for Indigenous ceremonial purposes – no form mentioned).
[23] Also analogous is recognition of prior service, entitling an employee to a higher rate of pay: clause 5.2. No application or notice is mandated but the employee bears the onus of proving prior service (clause 5.2.2). The higher pay rates accrue from commencement if proof is provided within 4 weeks or commencement. If proof is given later, the entitlement accrues from the date proof is supplied.
[24] Ms Frost was required to provide proof of prior experience and qualifications at commencement for the purposes of calculating her pay rate:
“Please list the details of all your previous record(s) of service. A copy of these record(s) of service and your Nursing Qualifications MUST be attached to verify your employment. Your rate of pay will be based on the total number of hours worked.
If documentation is not provided, you will be paid at RN Level 1 Grade 2, EN Level 1. (Backpay will be paid if received within 4 weeks).”
[25] On the evidence Ms Frost completed the “Record of Service” form and attached both her Certificate of Nurse Training and Training Certificate – Midwifery Nurse. The Respondent was clearly aware from early in her employment that Ms Frost had both certificates and she was expected to perform midwifery duties as part of her role. She did not make separate application.
[26] UCH’s current process sets out a form employees may complete to apply for a qualification allowance. The form is provided to all staff on commencement. UCH acknowledged that the form is not required under the Agreement and an “application” might take a different form. It seems there was no form and a less rigorous process when Ms Frost commenced employment.
[27] Ms Frost’s providing her qualification documentation at the time of initial employment gave notice of her qualification. Ascertaining if it was ‘application’ for the purpose of then clause 4.7.8 requires further consideration.
‘To the appropriate Director’
[28] The clause requires the employee to make application ‘to the appropriate director’. The Agreement refers to a Director of Clinical Services and a Director of Nursing. Ms Frost made her application in 2019 to the Acting Director of Clinical Services. UCH’s website reveals only a Director of Clinical Services and no listed Director of Nursing, though little turns on that as the parties’ agreed facts seems to resolve that matter of detail.
[29] The requirement to make application for the allowance to the appropriate Director enlivens that person’s responsibility under the Agreement to determine eligibility.
[30] This chain of events points to a construction that separates the allowance decision making from recruitment. UCH argued that this separation allows for proper accountability and determination of the allowance payable. As the extracted material above shows:
• different rates are payable depending on the level of qualification;
• the qualification must be one approved by UCH of at least 2 academic semesters (not any qualification accepted by the registration authority, for example);
• allowances are payable only to Level 1, 2 and 3 employees (not level 4 or 5);
• there is a discretion in the Director to pay the allowance for qualifications other than those stated in clause 5.7.2 (ie sub-speciality);
• allowances are payable only while the employee is performing relevant duties (clause 5.7.4); and
• provision is made for multiply qualified nurses and midwives so that only the highest allowance is payable to the exclusion of lower ones.
[31] Ms Frost’s argument through Counsel was that employees should not be put to providing documentation multiple times for multiple purposes. Ms Frost provided evidence of her midwifery certificate to be employed in a midwife role and the employer then had sufficient documentation to approve the qualification allowance. It follows on this argument the allowance should be back paid to commencement. Counsel for the Applicant noted that clause 5.7.7 is apposite to new employees in its drafting, and that employees entitled to an allowance and engaged in relevant work ought to be paid the allowance.6
[32] There was discussion about how the clause operated for after-acquired qualifications, for example an employee undertaking further studies and attaining a Masters degree. The employer may not even be aware of the studies and therefore unaware of the entitlement, making application a necessary trigger if the employee seeks a qualification allowance or payment at a higher level of an already-approved allowance. In such circumstances, a qualification allowance is not automatic, and depends on triggering events, including application and acceptance (approval). Such was said by the Union to exemplify an employee’s ‘inability’ to produce documentation before the end of the first four weeks, and reinforcing its position that a separate application system is not necessary for the proper application of the Agreement and that it may impede the employer meeting its obligations where the entitlement properly arises in the initial engagement.
[33] UCH’s response if that the plain words of the Agreement provide for such a separate process and in submissions laid out a range of justifications for it including administrative integrity and financial probity. As noted above, the scheme stated in the clause includes certain discretions and checks that might sit outside any more automatic acceptance of documentation provided in a recruitment and appointment context.
Retrospectivity
[34] Considerable argument was made around whether the entitlements and process stated by the two parties amounted to impermissible retrospectivity. 7 In the end, it is not necessary to decide this point, but I do acknowledge the careful consideration and assistance given to the Commission by legal representatives on this complicated point.
Local Consultative Forum
[35] One side argument raised on Ms Frost’s behalf was that UCH should, through the Local Consultative Forum, a joint management-union forum, 8 have advised staff of the need to apply and the process for application. It based this argument on the role of the Forum including “to ensure staff are educated and informed in relation to this Agreement”. Mr Williams argued the Forum’s role is about the Agreement, not the mechanics of allowances and the like. No doubt it would have been better for practice for the employer to ensure new employees had a right to claim the entitlement and to provide whatever form may have been developed for administrative purposes, and indeed UCH has improved its intake practices recently. But that is not the task of the Forum and no remedy lies in the Forum’s performance of its tasks.
Conclusions
[36] Ms Frost has every right to bring this dispute. She was employed, and worked, as a midwife. She presented her qualifications to UCF when she was employed. Mr Williams conceded her midwifery certificate entitled her to the qualification allowance (subject to application and approval). Yet she did not receive the allowance from when she started in 2011 until 2019, once she applied to the relevant director and the approval process played out.
[37] While it may seem that fairness leans on Ms Frost’s side, the dispute can only be resolved by interpreting the Agreement. And it is the plain words of the Agreement that the entitlement crystalises once an employee with the requisite belief makes application to the relevant Director, supported by documentation, and the Director considers the application and approves payment, commencing from the prescribed time.
[38] Ms Frost provided documentary evidence of her qualifications on appointment to UCH, but that was not application for the purposes of clause 5.7. She was eligible to seek payment of the allowance from commencement, but her entitlement to receive payment did not arise until she made application in July 2019 and the application was processed and the relevant approval given.
[39] The question for arbitration must be answered “No”.
COMMISSIONER
Appearances:
Mr Gavin Rebetzke of Counsel instructed by Ms Anne-Maree Roche of the QNMU for the Applicant
Mr Dan Williams of MinterEllison on behalf of the Respondent
Hearing details:
Brisbane
24 February
2021
Final written submissions:
Supplementary statements from the Respondent filed 15 March 2021
Printed by authority of the Commonwealth Government Printer
<PR731526>
Annexure A.
1 AE505983 PR713968, [2019] FWCA 7580
2 Simplot Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union[2020] FWCFB 5054
3 A copy of the agreed statement of facts (not including attachments to the statement) is appended at Annexure A.
4 See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 2017] FWCFB 3005 [114]; Transport Workers' Union of Australia v dnata Airport Services Australia t/a dnata Airport Services Australia Pty Ltd 2020] FWC 6720 [54] Sams DP
5 Current Agreement, clause 5.7.6 (emphasis added)
6 Transcript at PN363-367
7 For example, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Jemena Asset Management Pty Ltd [2015] FWC 1189 [17]
8 Clause 3.3.2
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3
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