New South Wales Nurses and Midwives' Association v Wesley Hospital Ashfield T/A Wesley Mission

[2016] FWC 9100

[2016] FWC 9100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

New South Wales Nurses and Midwives' Association
v
Wesley Hospital Ashfield T/A Wesley Mission
(C2016/1761)

Health and welfare services
COMMISSIONER JOHNS	SYDNEY, 19 DECEMBER 2016

Application to deal with a dispute - allowance - back-pay – exercise of private arbitration power.

Introduction
[1] This decision involves an application brought by the New South Wales Nurses and Midwives’ Association (NSWNMA/applicant) under section 739 of the Fair Work Act 2009 (FW Act). The NSWNMA brought the application in support of its member, Antony Parkin, a Registered Nurse (RN) at Wesley Hospital Ashfield.
[2] The Respondent is Wesley Hospital Ashfield t/a Wesley Mission (Wesley Mission/respondent).
[3] The parties are covered by the Wesley Mission Hospitals and NSWNMA, ANMF Enterprise Agreement 2013-2016 (Agreement). The Agreement was approved by the Commission, on 29 January 2014. It will pass its nominal expiry date on 31 December 2016.
[4] The dispute is about whether RN Parkin is entitled to the In Charge of Ward/Unit & Hospital allowance (IC W/U & H Allowance).
[5] The IC W/U & H Allowance appears at clause 12.4(a) of the Agreement,

“A registered nurse who is designated to be in-charge of a ward or unit when the Nursing Unit Manager is not rostered for duty and who is also designated to be in-charge of a hospital with less than 100 beds during the day, evening or night on the same shift shall be paid an allowance per shift of the sum set out in Item 10 of Table 2 (Part B). This subclause shall only apply where the registered nurse is in charge of one or more other nurses in the ward or unit in question.”

The hearing and submissions

[6] At the hearing on 5 September 2016:

a) the applicant was represented by Ms J Moffitt, and
b) the respondent was represented Ms J Zadel from the Australian Federation of Employers and Industries.

[7] Submissions and evidence had been filed prior to the hearing. Consequently, in addition to the evidence elicited and submission made at the hearing, the Commission, as presently constituted, also had regard to the following in coming to the its decision in this matter:

a) Applicant’s Outline of Submissions and Points of Claim (Exhibit A1),

b) Witness Statement of Antony Parkin (Exhibit A2) (who gave evidence at the hearing and was made available for cross-examination),

c) Witness Statement of Susan Taylor (Exhibit A3) (who gave evidence at the hearing and was made available for cross-examination),

d) Respondent’s Outline of Argument and Response to the Applicant’s Submissions and Points of Claim (Exhibit R1), and

e) Witness Statement of Adam Goss (Exhibit R2) (who gave evidence at the hearing and was made available for cross-examination).

[8] Having considered the evidence and material filed in the matter it became apparent to me that the parties had not been provided with a proper opportunity to make submissions about whether the Commission is invested with jurisdiction to make an order requiring the respondent to make a back-payment to RN Parkin. Consequently, on 11 October 2016 the parties were provided with an additional opportunity to file supplementary submissions.
[9] On 25 October 2016 the parties filed the following submissions:

a) Supplementary Submissions of the NSWNMA on Jurisdiction, and
b) Respondent’s supplementary submissions pursuant to the Commissioner’s request of 11 October 2016.

[10] I have had regard to those submissions.
[11] Having considered the supplementary submissions I further formed the view that the respondent should be provided with an opportunity to reply to the superior Supplementary Submissions filed by the NSWNMA. On 2 December 2016 the respondent advised the Commission that it ‘has nothing further to present in relation to this question and relies on its previous submissions.”

Issue in dispute

[12] Two issues arise to be determined:

a) Is RN Parkin entitled to the In Charge of Ward/Unit & Hospital allowance? (Allowance Question), and
b) If RN Parkin is entitled to the In Charge of Ward/Unit & Hospital allowance, is the Commission invested with jurisdiction to order the respondent to make a back-payment to RN Parkin? (Back-payment Question)

Background
[13] Most of the facts in the matter are uncontested. The following is a summary of the background to the issues in dispute:

a) The applicant’s member, Mr Antony Parkin, is employed as a RN at the respondent’s Wesley Hospital in Ashfield,

b) RN Parkin has worked with the respondent for around three years. During the past two years RN Parkin has primarily worked night shifts,

c) There are three separate wards at the Wesley Hospital,

i. an Eating Disorder Unit (EDU),
ii. a General Psychiatry Unit (GPU), and
iii. an Alcohol and Drugs Unit (AOD).

d) Each ward is run separately,

e) During the daytime there are five RNs and the Director of Nursing (DoN) on duty,

f) On the night shift one RN is rostered to be in charge of the hospital. When he is on night shift that is RN Parkin,

g) On a majority of night shifts the RN in charge of hospital works with one Enrolled Nurse (EN) and one other RN 1. The wards are allocated as follows,

i. the Eating Disorder Unit (on level 2), is overseen by the second RN,
ii. the General Psychiatry Unit (on level 2), is overseen by RN Parkin, and
iii. the Alcohol and Drugs Unit (on level 1), is overseen by the EN.

h) RN Parkin claims to be entitled to the IC W/U & H Allowance because, he says, he is in charge of the AOD (and therefore the EN working there) in addition to being in charge of the GPU and the Hospital,

i) Clause 12.4(a) has a number of elements and can be broken up as follows,

i. A registered nurse,
ii. who is designated to be in-charge of a ward or unit when the Nursing Unit Manager is not rostered for duty, and
iii. who is also designated to be in-charge of a hospital with less than 100 beds during the day, evening or night on the same shift…
iv. This subclause shall only apply where the registered nurse is in charge of one or more other nurses in the ward or unit in question.

j) The respondent concedes that, at all relevant times, RN Parkin,

i. is a RN,
ii. is designated to be in charge of a ward or unit when the Nursing Unit Manager is not rostered for duty, and
iii. is also designated to be in charge of a hospital with less than 100 beds during the day, evening or night of the shift,

k) The respondent does not concede that RN Parkin “is in charge of one or more other nurses or unit in question.”,

l) This is because the respondent says RN Parkin is not in charge of the EN in the AOD.

[14] The Allowance Question depends entirely on whether RN Parkin is in charge of the EN in the AOD.
Principles of construction of agreements
[15] In October 2014 a Full Bench of the Commission heard an appeal in The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel). 2 In summary, the appeal concerned the principles relevant to the interpretation of an agreement. The Full Bench went to great lengths to set out the relevant principles and relevant authorities. The principles can be summarised as follows:

“[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:

(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[16] In coming to this decision the Commission, as presently constituted, has had regard to the authorities referred to by the Full Bench and has adopted the relevant principles.
[17] However, the dispute is not so much about the application of the agreement and nor does it require a determination about the definition of a disputed term or terms. Neither party advanced an alternate argument about how clause 12.4(a) is to apply.
[18] The Agreement, and in particular clause 12.4(a), has a plain meaning and contains no ambiguity.
[19] Consequently, the dispute requires a determination of a simple question of fact, namely, is RN Parkin in charge of the EN in the AOD?

Evidence

[20] RN Parkin’s evidence was that:

a) when he commences night shift,

i. because he is in charge of the hospital, he receives a handover from the afternoon staff for all three wards,
ii. he receives a detailed handover in relation to the GPU,
iii. in addition he receives a full handover of the AOD with the EN.

b) during the night he regularly checks on all wards to ensure all is under control,
c) both the RN (in the EDU) and the EN (in the AOD) report directly to him (as the nurse in charge of the hospital) on all aspects of clinical care for all patients,

“18. For example, if a patient awakes and requires medications, staff will frequently check with the Registered Nurse in charge of hospital before administering medications.
19. The Registered Nurse in charge of hospital is responsible for making clinical decisions in relation to patients whose condition deteriorates.
20. The Registered Nurse in charge of hospital makes the decision to transfer patients to a General Hospital if necessary. There are no medical practitioners on site overnight.
21. If doctors need to be contacted for telephone orders for medications or other clinical matters, the Registered Nurse in charge of hospital undertakes this responsibility.” 3

d) the RN in charge of the hospital is responsible for supervising the EN in the AOD in accordance with the Nursing & Midwifery Board of Australia’s Standard for Practice-Enrolled Nurses (EN Standard). 4

[21] The evidence of RN Parkin remained intact after cross-examination. During cross examination RN Parkin:

a) maintained that,

i. the RN is also present during the handover to the EN, 5
ii. he starts work before the other staff because he has to attend all the handovers, 6
iii. he attends the level 2 handover in the GPU and to count the drugs. He then leaves level 2 to attend the level 1 handover with the EN. Because of time lags he often catches the end of the eating disorder handover but the EN fills him in on the first half which he has missed because time does not allow him to be in three places at the same time, 7
iv. he attends the full handover in the GPU and the AOD, 8
v. while the position description states that the nurses report to the DoN, but because the DoN is not available overnight, that responsibility passes to him by proxy. There is no way for nursing staff to report to the DoN while she is at home in bed. The in charge nurse accepts the responsibility for the shift and inherits the role of the DoN in managing staff overnight because the DoN is not available to attend to that responsibility, 9
vi. he informs the night staff that they are to call him before administering medication so that he is aware of all activity throughout the hospital, 10
vii. he is in charge of the EN, 11

b) rejected the suggestions that,

i. nurses are rostered for a handover, 12and
ii. nurses are instructed to contact the DoN on important issues. 13

[22] The EN Standard issued on 1 January 2016 states that,

The EN works with the registered nurse (RN) as part of the healthcare team and demonstrates competence in the provision of personal centred care. Core practice generally requires the EN to work under the direct or indirect supervision of the RN. At all times, the EN retains responsibility for his/her actions and remains accountable in providing delegated nursing care. The need for the EN to have a named and accessible RN at all times and in all contexts of care for support and guidance is critical to patient safety.

(emphasis added)

[23] The NSWNMA led evidence from Susan Taylor, one of its Professional Officers. Ms Taylor was not called to give expert evidence (as the phrase is properly understood), but it is apparent that she brings a high degree of expertise and specialist knowledge to an understanding of industrial arrangements that apply to nurses. Her evidence about Standards of Registration and Standards of Practice was instructive. Ms Taylor was cross-examined to no effect. Ms Taylor’s unchallenged evidence was that:

a) it is outside the scope of practice for an EN to work autonomously and be in charge of the AOD unit,
b) the EN Standard makes it clear that the EN must 14 work under the direct or indirect supervision of a RN at all times,
c) in practice [the EN Standard]’s requires that an EN must be supervised by a named RN and have reasonable access to the RN at all times for support and guidance which is critical to patient safety,
d) in relation to the issue of direct/indirect supervision of an EN, the accepted best practice is that a RN should be providing direct supervision to an EN at all times. However, the [EN] Standard allows for indirect supervision on the proviso that a RN is reasonably accessible at all times,
e) the Director of Nursing situated off site and unable to perform clinical assessment of patients, would not meet the requirements of reasonable accessibility,
f) the RN in charge of the hospital does not have to be situated in the AOD unit but must be reasonably accessible to the EN during the night shift. Hence the RN in charge of hospital provides direct/indirect supervision and is responsible for the clinical management of the AOD unit.

[24] The only evidence led by the respondent was from Adam Goss, its Hospital Operations Manager responsible for the management of the Wesley Hospital Ashfield and Kogarah. Mr Goss is not a Registered Nurse. 15 Nor is he an Enrolled Nurse.16 He has no qualifications in nursing or health science.17

In circumstances where the Allowance Question depends on whether RN Parkin is in charge of the EN in the AOD unit the decision to call Mr Goss (a person who readily conceded he has no direct knowledge of what happens on night shift and who knows nothing about nursing) was a curious decision.

Mr Goss’ evidence was that:

a) the RN in charge of hospital does not receive a full handover from afternoon shift staff for the three units. This RN receives a full and detailed handover of inpatients only for their unit,
b) the other nurses directly receive a full handover from their afternoon shift counterparts. 30 minutes is provided for this handover, including time to check Schedule 4 drugs and handover of inpatients,
c) the RN in charge of hospital is expected to move through the three units during night shift as part of being in charge of the hospital,
d) the RN and EN do not report to the RN in charge of hospital. They report to the Director of Nursing, as shown in the position descriptions for their roles, and
e) the RN in charge of the hospital does not act as a supervisor.

[25] Under cross examination, and in answer to questions from me, Mr Goss conceded that:

a) he has no direct knowledge of how often the DoN is contacted during the night shift, 18
b) he is not present during the night shift, 19
c) he does not know what happens between RN Parkin and the EN on night shift, 20
d) he cannot dispute the evidence given by RN Parkin about what really happens on a day-to-day basis, 21
e) he has no clinical qualifications or experience, 22
f) Wesley Hospital is the first hospital he has worked in, 23
g) he has never worked in the hospital while RN Parkin has been on duty, 24
h) he has no direct knowledge of what occurs at clinical handovers, 25 and
i) he has no direct knowledge of the RN and EN reporting to the DoN during the night shift. 26

[26] It might obviously have been expected that the best people to give evidence about whether RN Parkin is in charge of the EN in the AOD unit would have been:

a) the Director of Nursing, and
b) the EN.

[27] The respondent’s decision not to call either was unexplained. Consequently, I am entitled to draw the adverse inference that the evidence of both would not have assisted the respondent. 27

Submissions - the Allowance Question

Applicant

[28] The NSWNMA submitted that:

a) the essential criteria for determining whether the IC W/U & H Allowance is payable was set out in a decision of the NSW Industrial Relations Commission in NSW Nurses and Midwives Association v Crown in the Right of the State of New South Wales (Director General NSW Ministry of Health in respect of Sydney Local Health District), 28
b) the principles enunciated in that case apply equally to analogous award provisions whether in the public or private sector, and
c) the RN in charge of the hospital is required to supervise the EN working in the AOD in accordance with the EN Standard.

[29] In NSW Nurses and Midwives Association v Crown in the Right of the State of New South Wales (Director General NSW Ministry of Health in respect of Sydney Local Health District) the NSW Industrial Relations Commission was interpreting the Public Health System Nurses’ and Midwives’ (State) Award and the In Charge of Shift Allowance. The issue turned on who had the “day to day clinical management of the shift”. The NSW Commission found that the claimants were designated to undertake the role of team leader nominated shifts, despite the fact that this designation was not evidenced in writing. The claimants were therefore entitled to the allowance.

Respondent

[30] The respondent submitted that:

a) subclause 12.4(a) only applies where the RN is in charge of one or more other nurses in the ward or unit in question,
b) the eligibility in the Public Health System Nurses’ and Midwives’ (State) Award differs substantially from the eligibility criteria in the Agreement,
c) RN Parkin is not involved in clinical management, and
d) it does not require RN Parkin to supervise the EN or other nurses.

Consideration – the Allowance Question
[31] To the extent that there is a dispute about whether, as a practical matter, during the night shift, RN Parkin is in charge of the EN, I prefer the evidence of RN Parkin. His evidence was the only direct evidence about what actually occurs on the night shift
[32] The respondent had every opportunity to lead evidence from either the DoN and/or the EN which could have contradicted the evidence of RN Parkin, but, for reasons which remain a mystery, it chose not to do so.

[33] Further, noting that RN Parkin first raised the issue of his entitlement to the IC W/U & H Allowance in April 2016, the respondent has had every opportunity to clarify the situation. It could have unequivocally made it clear to him and the EN that, during the night shift, he does not have clinical management of the AOD unit and is not in charge of the EN.
[34] If, as the respondent maintained during the hearing the DoN, at all times, remains in charge of the AOD unit and the EN working in that unit, it could have, in writing or orally, communicated that to RN Parkin and the EN. It chose not to do so.
[35] In:

a) the absence of a clear statement to its employees (residents and the families of the residents) that it was choosing not to apply the EN Standard, and
b) the face of the uncontested (and only direct) evidence of RN Parkin,

the factual conclusion favours RN Parkin.

[36] Consequently, as a matter of fact the Commission, as presently constituted, finds that, during the night shift, when an EN is responsible for the AOD unit, and RN Parkin is in charge of the hospital consistent with the EN Standard,

a) the EN working with RN Parkin in the AOD unit is under his direct or indirect supervision,
b) RN Parkin is in charge of the AOD unit, and
c) RN Parkin is in charge of the EN.

[37] It necessarily follows that RN Parkin is entitled to the IC W/U & H Allowance.

Submissions - the Back-payment Question

Applicant

[38] The NSWNMA submitted that,

a) when exercising dispute resolution powers conferred by an enterprise agreement, the Commission is exercising powers of private arbitration, 29
b) the powers capable of being exercised by the Commission include the power to “arbitrate the dispute”. 30 the word “arbitration” is widely understood to describe the process by which disputes are settled by a third-party appointed for that purpose by the parties to the dispute,31
c) matters that are capable of being referred to the Commission under a dispute resolution provision include the power to resolve the dispute “as to the legal rights and liabilities the parties” 32,
d) when the Commission determines the question of legal rights or liabilities, it does not thereby exercise judicial power,
e) it is open to the parties to an enterprise agreement to confer power upon the Commission as a private arbitrator to determine disputes in relation to questions of law and the legal rights and liabilities the parties. Such course does not involve an impermissible exercise of judicial power, and
f) in the case of the referral of the dispute under an enterprise agreement to the Commission, the jurisdiction of the Commission will turn upon the scope of the dispute resolution clause. That is ultimately a matter of interpretation of the agreement.

[39] The NSWNMA usefully referred the Commission to the following authorities:

● “… Commissioner Wilson recently explained in Hester v Metropolitan Fire and Emergency Services Board [2016] FWC 6790 at [23] (omitting references):

[23] As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies, which involves deciding “all questions both of law and of fact” that arise in the dispute, subject to any limitation on power in the dispute settlement clause, together with the requirement not to make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties…

● In Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 2959, Commissioner Saunders usefully described the proper approach as follows (at [6]-[10]) (omitting references):

[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in the enterprise agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.
[7] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”
[8] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.
[9] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. However, the relief sought may cast light on the true nature of the dispute in some cases.
[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the limitation in s.739(5) of the FW Act and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.”

[40] I adopt the same approach as my learned fellow Commissioners in this matter.

Respondent

[41] The respondent submitted that:

a) the Commission has not been invested with the capacity to make an order for back-payment and, therefore, the Commission does not have the lawful authority or jurisdiction in these proceedings to order back-payment,
b) it is accepted that, in proceedings for recovery of wages, and employer could be compelled by order pursuant to section 545 of the FW Act to make payment in the nature of a back-payment. Such an order is an exercise of judicial power vested in the courts. The Commission is not a judicial body and is not vested with judicial power, 33
c) the parties to the Agreement could not invest the Commission with judicial power, or any comparable authority. This is so because the parties themselves do not hold such power or authority either individually or in combination and so it is not possible for them to sign it,
d) the language of clause 36 does not disclose support for any reasonable argument that the parties have invested the Commission with such power or authority comparable to judicial power. The clause allows the Commission to achieve resolution of disputes by several means including mediation, conciliation and arbitration. That said, the clause does not express any means comparable to, or corresponding with, a judicial power. If it had been intended otherwise, it would be clearly expressed,
e) while the Agreement authorises the Commission to conduct arbitration, the extent and nature of that authority is informed by the meaning of “arbitration”. The term “arbitration” (or “arbitral power”) has been considered in the context of industrial legislation and these cases show that arbitral power has a character distinct from judicial power, and
f) reliance should be had on the decision in Re Finance Sector Union of Australia v Police and Nurses Credit Society Ltd. 34

Consideration – the Back-payment question
[42] It is settled law that section 739 of the FW Act enables the parties to an enterprise agreement to confer powers of a private arbitrator on the Commission.
[43] The dispute settlement clause in the Agreement is contained in clause 36.1. It refers to “a dispute about any matter” 35 (my emphasis) and in clause 36.6 provides for “arbitration”.

The Agreement, and in particular dispute settlement clause, has a plain meaning and contains no ambiguity.

As the applicant correctly submitted,

“As the High Court authoritatively stated in relation to the earlier statutory scheme in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 (at [31]-[32]):

[31] Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.
[32] To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid.”

[44] The decisions relied upon by the applicant were more relevant and persuasive than those of the respondent.
[45] In relation to the submissions of the respondent, the Re Finance decision relied upon by it can be distinguished on the basis that it was not a decision about the exercise of the private arbitration power conferred by an enterprise agreement.
[46] In any case support for the applicant’s case is to be found in the statement of the Full Bench at para [48],

“For example, the Commission cannot give a binding interpretation of an award or agreement where that interpretation is sought for the purpose of enforcing a right said to be created by the award or agreement in question. But arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power. Moreover the arbitral function can involve the determination of a dispute relating to past transactions, events and conduct. 36”

(my emphasis)

[47] The submissions of the respondent misunderstood the proper distinction between judicial power and powers of private arbitration.
[48] The power that the Commission, as presently constituted, is exercising in this matter, is not exercised independently of the consent of the respondent (against whom the proceedings are brought) and it cannot result in a judgment or order that is binding of its own force. Rather, through the agreement making process, the respondent and its employees have voluntarily invested the Commission with powers of private arbitration. Any resulting judgment or order binds the parties because they have voluntarily agreed to be bound by it. It is wrong to attempt to characterise any proposed order about back-payment as an exercise of judicial power. It is not.
[49] The power of private arbitration in the Agreement includes in relation to a dispute about any matter. A dispute about whether RN Parkin should be paid back-pay is such a dispute. True it is a dispute about a legal right of RN Parkin and a legal responsibility of the respondent. But, so be it. The respondent agreed to an Agreement containing a broad dispute resolution clause. The Commission, as presently constituted, is satisfied that the dispute settlement procedure in the Agreement allows the Commission to deal with the dispute about back-payment to RN Parkin.

Conclusion

[50] Having regard to the these reasons, the two questions posed above can be answered as follows:

a) Is RN Parkin entitled to the In Charge of Ward/Unit & Hospital allowance?

Answer: Yes

b) If RN Parkin is entitled to the In Charge of Ward/Unit & Hospital allowance, is the Commission invested with jurisdiction to order the respondent to make a back-payment to RN Parkin?

Answer: Yes

[51] Consequently, the parties are directed to confer about the orders that the Commission should make as a consequence of this decision in respect of the quantum of the back-payment and file proposed consent orders about the same within 21 days of the date of this decision.
[52] Failing agreement on the orders to be made each party is at liberty to contact my chambers and have the matter re-listed on for further hearing and determination about the quantum of the back-payment to be made to RN Parkin.

COMMISSIONER

Appearances:

J Moffitt, for the New South Wales Nurses and Midwives’ Association

J Zadel for Wesley Hospital Ashfield t/a Wesley Mission

Hearing details:

Sydney

20 September,

2016

Final written submissions:

Applicant’s final submissions filed 25 October 2016

Respondent’s final submissions filed 25 October 2106 and 2 December 2016

 1   The evidence of Adam Goss was that “during the last 365 night shifts, three RNs have been rostered on 85 shifts [i.e. 23%], with two RNs and one EN rostered on the other shifts” (i.e. 280 or 77%).

 2   [2014] FWCFB 7447.

 3   Statement of Antony Parkin, (Exhibit A2), paras 18 – 21.

 4   Statement of Antony Parkin, (Exhibit A2), para 16.

 5   PN52 and PN56.

 6   PN59.

 7   PN60.

 8   PN67.

 9   PN75.

 10   PN95.

 11   PN135.

 12   PN58.

 13   PN99.

 14   The EN Standard uses the phrase “generally requires”. It does not use the phrase “must”.

 15   PN210.

 16   PN211.

 17   PN212-213.

 18   PN236-239.

 19   PN253.

 20   PN254.

 21   PN256.

 22   PN261.

 23   PN274.

 24   PN304.

 25   PN306.

 26   PN317.

 27   Jones v Dunkel (1959) 101 CLR 298.

 28   [2014] NSWComm 54.

 29   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 at [31]-[34]; AMWU v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [35].

 30 Section 739(4) of the FW Act.

 31   AMWU v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [32].

 32   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 at [31]-[32]; Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd (2012) 203 FCR 371 at [41]; Linfox Australia Pty Ltd v Transport Workers Union of Australia (2013) 213 FCR 479 at [31].

 33   R v Kirby; Ex parte Boilermakers Society of Australia(1956) 94 CLR 254 (High Court); 95 CLR 529 (Privy Council).

 34   [2003] AIRC 1340 (29 October 2003), PR939977.

 35   Except a dispute about “termination of employment” (clause 36.1).

 36   Citing Re Cram; Ex parte The Newcastle Wallsend Coal Company Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149.

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