Re Royal Australian Nursing Federation v Ex Parte New South Wales Nurses' Association S74 of 1985; Ex Parte Health and Research Employees Association of Australia

[1986] HCA 56

HIGH COURT OF AUSTRALIA

Brennan, Deane and Dawson JJ.

Re THE ROYAL AUSTRALIAN NURSING FEDERATION v. Ex Parte THE NEW SOUTH WALES NURSES' ASSOCIATION S74 of 1985; Ex Parte HEALTH AND RESEARCH EMPLOYEES ASSOCIATION OF AUSTRALIA &ANOTHER

26 September 1986

Decision

BRENNAN, DEANE AND DAWSON JJ.: An organization of employees registered pursuant to the provisions of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") and two trade unions registered pursuant to the provisions of the Industrial Arbitration Act 1940 (N.S.W.) apply on notice for writs of prohibition and certiorari directed to the Full Bench of the Conciliation and Arbitration Commission, to Justice Cohen of that Commission and to the Royal Australian Nursing Federation ("the RANF"), another registered organization of employees. The applications relate to proceedings before the Commission commenced by the RANF for an award regulating wages and working conditions of various categories of employees whose work is or is associated with nursing. On 6 July 1984, Justice Cohen found that an industrial dispute had arisen between the RANF "in respect of persons who are members or eligible to be members thereof" and certain employing authorities in hospitals, nursing homes and other institutions, the dispute having arisen out of the non-acceptance of a letter of demand and log of claims served by the RANF on those employing authorities. The log of claims related to the wages and conditions of various categories of employees including enrolled nurses or nursing aides (howsoever called from State to State), and trainee or student nurses.

2. The applicants and certain other parties contended that the eligibility rule of the RANF precludes the RANF from enrolling as members, and from creating a dispute with respect to the wages and conditions of, employees who are enrolled nurses or nursing aides (howsoever called from State to State) and trainee or student nurses except where one or other of those categories is included in a part of the RANF eligibility rule having an application restricted to Queensland, Western Australia or South Australia. An appeal to the Full Bench of the Commission against Justice Cohen's determination that there was an industrial dispute with respect to the wages and conditions of employees in the challenged categories was dismissed. By these applications, the applicants attack the validity of the determination by Justice Cohen that there was an industrial dispute with respect to the wages and conditions of employees in the challenged categories and the validity of the dismissal of the appeal against that determination. The sole ground on which that challenge is made is that employees in the challenged categories are not eligible for membership of the RANF.

3. Sub-rule (1) of r.6 of the rules of the RANF reads as follows:

"(1) Membership shall be open to the following classes of employees engaged in the nursing industry:

(a) Who hold a certificate of three years training as a nurse in a recognised general hospital together with such other persons, whether employees in the industry or not as have been appointed officers of the Association and admitted as members thereof

(b) who can produce evidence of training to
the satisfaction of the Council

(c) or who are registered by any State in
Australia."

That sub-rule is followed by sub-rule (2) which contains particular provisions governing eligibility in the States of Queensland, Western Australia and South Australia. That sub-rule is introduced by the words:

" Notwithstanding anything contained in the foregoing provisions of this rule and without limiting the generality thereof the following classes of employees shall also be eligible for membership".

The text of the sub-rule and the context in which it appears combine to show that, in respect of the States and Territories to which sub-rule (2) does not apply, sub-rule (1) alone should be regarded in determining the categories of employees whom the RANF is eligible to enrol. That approach is reinforced by the history of sub-rule (2). Sub-rule (2), the Full Bench of the Commission accepted, was

" made to overcome difficulties which might emerge following the decision of the Industrial Court in Moore v Doyle (1968) 15 FLR 59 where the effective activity of a federal union in a State could be eroded by the divergence of its rules from those of a State branch. This pragmatic amendment has the effect of incorporating into the rule of the RANF words and phrases which, when read with the first part of the rule, could influence the interpretation of that part. Part (1) of Rule 6 has, in substance, been the guide to eligibility since registration. It has never had any other purpose than to define the persons who may validly be members of the RANF. Part (2), on the other hand, was introduced for a different purpose, albeit it also bears upon eligibility for membership in the States therein mentioned."

It would be wrong to have regard to the language of sub-rule (2) to expand or restrict the scope of sub-rule (1). The classes of employees mentioned in the three paragraphs of sub-rule (1) are eligible for membership if they are "engaged in the nursing industry". The qualification of being engaged in the nursing industry limits the classes of employees mentioned in the three paragraphs.

4. Paragraph (a) covers nurses holding a certificate of three years' training in a general hospital. Nothing turns on that paragraph in this case. Paragraph (c) covers employees who are registered by a State. It is submitted that this paragraph reflects a well-known and statutorily recognized distinction between registered nurses and others. However, even if it be accepted that registered nurses are a distinct class of professional nurses, it does not follow that par.(c) comprehends only registered nurses. Paragraph (c) comprehends "employees engaged in the nursing industry" who are registered by a State, not merely registered nurses. In earlier times, the only employees engaged in the nursing industry who were registered were registered nurses, and registered nurses were a recognized category of nurses. But each of the relevant State laws nowadays makes provision for the keeping of an official list of nursing aides or enrolled nurses whose qualifications in training and education are not as stringent as the qualifications of registered nurses. The first statutory provisions governing the listing of nursing aides or enrolled nurses was introduced in Tasmania in 1949, the last in Queensland in 1970. Although the State laws do not all use the term "registered" to describe nursing aides or enrolled nurses who are included in an official list, the listing of those employees is at least a form of registration. However, it is not necessary to decide that nursing aides or enrolled nurses are included in the class of employees described as "registered" in par.(c) if they are eligible for enrolment under par.(b).

5. Paragraph (b) covers employees engaged in the nursing industry who may neither hold a general nursing certificate nor be registered but who can produce some evidence of training. When par.(b) was added to the eligibility rule of the RANF (then known as the Trained Nurses Guild) in 1922, Mr Maher, appearing for the Trained Nurses Guild, referred to those contemplated in par.(b) as "a second class which is on all fours with the position of that of an apprentice, that is a person undergoing training in a recognised general hospital, or a recognised public institution ... They are what would be called an ordinary apprentice in an outside industry". It seems that this view of the scope of par.(b) has been acted on by the RANF in enrolling student nurses since that time without demur in the industry. No doubt par.(b) is susceptible of a construction which limits its scope to employees who have training comparable with employees who hold certificates entitling them to membership under par.(a) or who are registered so as to satisfy par.(c). But par.(b) is equally susceptible of a construction which comprehends employees who are receiving or who have received training designed to equip the employees to perform duties in the nursing industry. The Full Bench construed par.(b) as covering student nurses or nurses in training and observed that -

" it would be unusual to have a rule which applied to the fully qualified person but which gave that person no assistance during the period of training for the qualification."

In expressing this view, the Commission plainly drew on their knowledge of industrial practice, and that view commands considerable respect. In Reg. v. Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402, at p.411, the majority of this Court said:

" The weight to be given to the Commission's decision will of course vary. As Mason J. said in Reg. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union ((1981) 153 CLR 376, at p 390):

'The weight to be given to the Commission's decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.' "

See also Reg. v. Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415, at p 430. Paragraph (b) therefore should be held to cover trainee and student nurses. Why should it not cover nursing aides and enrolled nurses who are also employees with some training engaged in the nursing industry? If nursing aides and enrolled nurses are not within the scope of par.(c), they would fall within the scope of par.(b). That is because sub-rule (1) seems to us clearly to intend to provide coverage for those engaged in the provision of nursing services at various levels in the various areas of health care, ranging from the "registered nurse" as recognized by the statutes of the several States and Territories to the junior trainee who can produce evidence of nursing training to the satisfaction of the Council. Nursing aides and enrolled nurses are within this coverage, comprehended either by par.(b) or par.(c). Where they are officially listed, we tend to the view that they fall within par.(c).

6. As sub-rule (1) is wide enough to cover the categories of employees whose eligibility for membership is challenged, it is unnecessary to consider whether employees in those categories are eligible for membership in particular States pursuant to the provisions of sub-rule (2).

7. The applications must be dismissed, and it is so ordered.

Orders

Applications dismissed.