|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 18531-1
DEPUTY PRESIDENT HAMILTON
C2008/2301
s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Australian Nursing Federation
and
Independent Private Hospitals of Australia t/as Malvern Private Hospital, Essendon Private Hospital, Mountain Districts Private Hospital
(C2008/2301)
MELBOURNE
10.24AM, WEDNESDAY, 21 MAY 2008
Continued from 17/4/2008
PN474
MR P GARDNER: I seek leave to appear on behalf of the applicant Nursing Federation.
PN475
MS G COLLIER: If it please the Commission, I appear on behalf of IPHOA.
PN476
THE DEPUTY PRESIDENT: Thank you. You are confusing me where you are sitting, Ms Collier. Perhaps I should move along the bench.
PN477
MS COLLIER: Would you like me to - - -
PN478
THE DEPUTY PRESIDENT: If you could then I don’t have to keep cricking my neck towards the left-hand side. Thank you.
PN479
Right, written submissions have been filed and served. There are two witnesses, are there, on behalf of the Nursing Federation.
PN480
MR GARDNER: Yes, your Honour.
PN481
THE DEPUTY PRESIDENT: Ms Collier has advised that she doesn’t seek to cross-examine Mr Megennis. I’m not sure about the other witnesses. Is there a witness statement?
PN482
MR GARDNER: It’s also the case for the other witness, your Honour.
PN483
THE DEPUTY PRESIDENT: Right.
PN484
MR GARDNER: There has been a statement filed.
PN485
THE DEPUTY PRESIDENT: Well, I hope it hasn’t got lost in translation because when I read the papers yesterday there seemed to be only one. So if you could hand it up I would be in your debt.
PN486
MR GARDNER: Yes, your Honour.
PN487
THE DEPUTY PRESIDENT: Thank you. So there is no objection to the witness statements?
PN488
MS COLLIER: No, your Honour.
PN489
THE DEPUTY PRESIDENT: All right, I will mark them then.
PN490
MR GARDNER: Your Honour, I’m in your hands. Would you be content for me just to have the witnesses adopt them?
PN491
THE DEPUTY PRESIDENT: I think we will just tender them. Is there any point in having the witnesses adopt them?
PN492
MR GARDNER: Well, not if there’s no objection and your Honour is comfortable with that.
PN493
THE DEPUTY PRESIDENT: Well I’m comfortable with that. Is there objection to that, Ms Collier?
PN494
MS COLLIER: No, your Honour.
THE DEPUTY PRESIDENT: All right, we will mark the witness statement of Barry Megennis.
EXHIBIT #ANF1 WITNESS STATEMENT OF BARRY MEGENNIS
THE DEPUTY PRESIDENT: We will mark the witness statement of Catherine Hutchings.
EXHIBIT #ANF 2 WITNESS STATEMENT OF CATHERINE HUTCHINGS
THE DEPUTY PRESIDENT: Now we might as well mark all the other - there’s quite a blizzard of documents been filed. I have a document headed Outline of Submissions of the Australian Nursing Federation.
EXHIBIT #ANF3 OUTLINE OF SUBMISSIONS OF THE AUSTRALIAN NURSING FEDERATION
THE DEPUTY PRESIDENT: I have a document marked Reply of the Australian Nursing Federation.
EXHIBIT #ANF4 REPLY OF THE AUSTRALIAN NURSING FEDERATION
THE DEPUTY PRESIDENT: There are numerous attachments. I have a document titled Outline of Submissions in Response to the Applicant’s Submission.
EXHIBIT #IPHA1 OUTLINE OF SUBMISSIONS IN RESPONSE TO APPLICANT’S SUBMISSION
PN500
THE DEPUTY PRESIDENT: I have a second letter - right is that it? Have I missed anything?
PN501
MR GARDNER: That’s it, your Honour.
PN502
THE DEPUTY PRESIDENT: Well I am relieved.
PN503
MR GARDNER: There are a couple of public documents that have been referred to in the material that I think I need to provide copies to your Honour. Both parties have referred to the Health Services Private Hospitals and Day Procedures Regulations 2002.
PN504
THE DEPUTY PRESIDENT: They have.
PN505
MR GARDNER: So can I just provide for convenience a copy of that for your Honour.
PN506
THE DEPUTY PRESIDENT: Yes.
PN507
MR GARDNER: That’s it for the moment. There is another one, I’m sorry your Honour, but could we perhaps mark that.
PN508
THE DEPUTY PRESIDENT: I’m not in the habit of marking regulations and Acts of Parliament.
PN509
MR GARDNER: I’m content with that course, your Honour.
PN510
THE DEPUTY PRESIDENT: I beg your pardon?
PN511
MR GARDNER: I’m content with that course, your Honour. The other document that I just need to ensure that your Honour has is the award.
PN512
THE DEPUTY PRESIDENT: I don’t have the award, no.
PN513
MR GARDNER: What I will do - - -
PN514
THE DEPUTY PRESIDENT: That has been referred to a few times.
PN515
MR GARDNER: It has. Your Honour, the version of the award I will hand up to you is the 2002 award, but it stops at clause 35. I haven’t burdened your Honour with another forest.
PN516
THE DEPUTY PRESIDENT: When I read it I almost wondered why we were here today. The submission of the employer is the award requires that:
PN517
All of the respondent’s locations on the morning shift must have both a director of nursing and a Grade 5 registered nurse on duty.
PN518
So I’m wondering why we’re here.
PN519
MR GARDNER: Yes, your Honour.
PN520
THE DEPUTY PRESIDENT: I’m sure you will have a response to that or the employer will have a response to that, or both of you. I mean, is there a possibility of some sort of agreement arising out of this, if that’s the case?
PN521
MR GARDNER: Can I say, your Honour, that my friend and I have had a number of discussions in recent weeks during the period of filing of the material and what have you. We had discussions as recently as last night and again today. It seems not, your Honour. The difficulty in short is this. Clause 28 of the agreement provides for the appointment of a director of nursing at each of the hospitals. The Federation says the nature of the agreement, read properly, requires that there be someone so appointed on a full time basis. That’s the Federation’s position. I’m sure my friend will correct me if I’m wrong.
PN522
THE DEPUTY PRESIDENT: Sure.
PN523
MR GARDNER: But their proposal is to have an executive director of nursing, and you have seen one of the diagrams.
PN524
THE DEPUTY PRESIDENT: Yes, I have.
PN525
MR GARDNER: Or state manager/director of nursing up above the three hospitals. The Federation has no difficulty with that at all. Executive directors of nursing are not uncommon. But at each hospital, the respondent’s proposal is not to have a director of nursing appointed at each of those hospitals but rather, as we apprehend it, to have this executive director of nursing or the state manager spend one or two days - - -
PN526
THE DEPUTY PRESIDENT: One point five to two days, whatever - - -
PN527
MR GARDNER: Yes, whatever it happens to be, and then it gets murky as to what is meant to happen in the other times. But one scenario, as we understand it, is that there be a person - - -
PN528
THE DEPUTY PRESIDENT: Who acts up.
PN529
MR GARDNER: Who acts, but the classification if not that of director of nursing.
PN530
THE DEPUTY PRESIDENT: Is that right? So they would be acting in the director of nursing position without having that classification?
PN531
MR GARDNER: Yes. They would be, as we understand it, described as a senior nurse manager. That’s not a being known to the classification structure but a generic title.
PN532
THE DEPUTY PRESIDENT: I don’t follow that proposal but perhaps I will when it’s explained to me.
PN533
MR GARDNER: Perhaps you will, your Honour, but can I just make this observation about the acting aspect of it?
PN534
THE DEPUTY PRESIDENT: Yes.
PN535
MR GARDNER: It would be unusual, and we say contrary to the relevant provisions, to have someone who is described in an acting position when the person holding the substantive position was still there, was still on duty and performing their normal duties.
PN536
THE DEPUTY PRESIDENT: Yes.
PN537
MR GARDNER: Because the state manager would be on duty performing their normal duties, albeit that it would be somewhere else. So it’s a sleight of hand in a way to use the term an acting position. You act in a position if someone is not there, not performing the duties of the position. Here, because of this moveable feast as we would see it, you are going to have the difficulty of someone being so-called acting but the substantive person is actually at the other hospital. They are still on duty, they are still doing what they are meant to do.
PN538
So it’s a misuse of the notion of acting. It’s certainly a misuse of the notion of acting up. We say it doesn’t satisfy the very simple requirement of the certified agreement, properly construed, that there be a director of nursing appointment, and be classified as such, at each hospital. That’s the way we see the two positions, though we are having difficulty.
PN539
THE DEPUTY PRESIDENT: Well I can’t follow the position so I’m better asking Ms Collier what it is. Ms Collier, is the proposal that the acting up position be acting as director of nursing in each hospital or not?
PN540
MS COLLIER: Your Honour, may I explain the structure because my colleague here hasn’t quite explained it in the manner - - -
PN541
THE DEPUTY PRESIDENT: Yes, well please explain and please answer my question if you could?
PN542
MS COLLIER: Yes. Could you please just rephrase it for me?
PN543
THE DEPUTY PRESIDENT: Sure. The difference between you - well, one of the differences is Mr Gardner just said that your position was that when the state director, director, however - - -
PN544
MS COLLIER: Director of nursing.
PN545
THE DEPUTY PRESIDENT: The state director of nursing is not present in a particular hospital, another nurse will act up, however that other nurse will not be acting up as a director of nursing.
PN546
MS COLLIER: No your Honour, that’s not correct.
PN547
THE DEPUTY PRESIDENT: So they will be acting up as a director of nursing?
PN548
MS COLLIER: They will be acting director of nursing in the absence of the director of nursing.
PN549
THE DEPUTY PRESIDENT: Right, so they will have the classification and pay and conditions et cetera of director of nursing for that period of acting up; is that right?
PN550
MS COLLIER: Yes, that’s right, your Honour.
PN551
THE DEPUTY PRESIDENT: Well I don’t see how the parties can have misunderstood such a fundamental issue and they just have, apparently. I mean, I am quite at a loss. You have been talking about this now for how long? Two months, and on a fundamental issue like that you don’t seem to even understand each other’s position. Now I don’t know where you have gone wrong but you have done something seriously wrong, both of you, if you can be in that position.
PN552
MR GARDNER: Your Honour, may I respond - - -
PN553
THE DEPUTY PRESIDENT: I am very dissatisfied with that.
PN554
MR GARDNER: May I respond to that?
PN555
THE DEPUTY PRESIDENT: Please, I’m not criticising you in particular.
PN556
MR GARDNER: For the first time - - -
PN557
THE DEPUTY PRESIDENT: Ms Collier, please sit down while he is speaking.
PN558
MR GARDNER: For the first time, before your Honour today, it has been accepted that the person on site will be classified as director of nursing. That was your Honour’s question and the answer was yes.
PN559
THE DEPUTY PRESIDENT: Yes. Yes.
PN560
MR GARDNER: For the very first time that has been - - -
PN561
THE DEPUTY PRESIDENT: So you have never heard that before?
PN562
MR GARDNER: Never heard that before, and your Honour clause - - -
PN563
THE DEPUTY PRESIDENT: I am absolutely astonished, because you see this is probably an important issue. The parties have been discussing this for months. I’ve had two or is it three sets of proceedings about this matter and only now is this fundamental issue between you being clarified. I am just astonished.
PN564
MR GARDNER: Well your Honour, we are delighted. But can I make the point that clause 28 of the agreement, read properly, requires the position at each of the sites to be classified as director of nursing. Now I wouldn’t want the parties still to be at cross-purposes and I’m concerned they might be.
PN565
THE DEPUTY PRESIDENT: Go on. What is the further issue?
PN566
MR GARDNER: The issue is the question of classification.
PN567
THE DEPUTY PRESIDENT: Yes.
PN568
MR GARDNER: If someone is classified as a director of nursing, as we say the agreement requires, then they hold a substantive appointment as a director of nursing. End of story. That’s a simple proposition. What my friend seems to be saying is that there will be perhaps a job-share position where two people have the classification of director of nursing, but she doesn’t quite go that far. What she seems to be saying is there’s going to be a director of nursing but in the three days a week or three and a half days a week that that state manager isn’t there, there won’t be someone classified as a director of nursing, it’s just that they’ll be acting and so we’ll call them acting director of nursing. It’s this - - -
PN569
THE DEPUTY PRESIDENT: Hang on. There is a capacity to act, isn’t there? I mean, every position seems - for obvious reasons such as annual leave ,sick leave, to be filling a position after someone - - -
PN570
MR GARDNER: Long service leave, whatever.
PN571
THE DEPUTY PRESIDENT: - - -has resigned. There is always the capacity to act, isn’t there? Something similar may be the position here, might it not? So they are classified as something else but then they- - -
PN572
MR GARDNER: But that’s the point, your Honour, it’s not a similar position.
PN573
THE DEPUTY PRESIDENT: It’s not?
PN574
MR GARDNER: It’s not a similar position to - - -
PN575
THE DEPUTY PRESIDENT: No, no - - -
PN576
MR GARDNER: - - - what your Honour described at all.
PN577
THE DEPUTY PRESIDENT: All right.
PN578
MR GARDNER: That’s our point.
PN579
THE DEPUTY PRESIDENT: Yes, okay.
PN580
MR GARDNER: That you simply can’t describe someone acting in a position in circumstances where the substantive holder of that position is on duty.
PN581
THE DEPUTY PRESIDENT: All right.
PN582
MR GARDNER: And performing their normal functions. This is the slip I referred to earlier.
PN583
THE DEPUTY PRESIDENT: All right.
PN584
MR GARDNER: Or the sly.
PN585
THE DEPUTY PRESIDENT: We will come to Ms Collier’s full stated position later, of course, but could you just explain to me how the acting provisions, which we have just heard seem to be their position, don’t enable the employer to satisfy the requirements of the agreement? I don’t know about the award; are you saying they are breaching the award too, or not?
PN586
MR GARDNER: Well the agreement is one of those ones that is read in conjunction with the award.
PN587
THE DEPUTY PRESIDENT: Yes, but it doesn’t incorporate the award, does it?
PN588
MR GARDNER: No, it doesn’t incorporate the award.
PN589
THE DEPUTY PRESIDENT: So it’s a different set of regulatory provisions.
PN590
MR GARDNER: Yes.
PN591
THE DEPUTY PRESIDENT: I mean it’s one of these charming exercises where both apply.
PN592
MR GARDNER: Yes.
PN593
THE DEPUTY PRESIDENT: Just to add to the complexity.
PN594
MR GARDNER: Can I take your Honour - and I think I do need to take your Honour, I don’t think there is a shortcut.
PN595
THE DEPUTY PRESIDENT: All right.
PN596
MR GARDNER: I think I do need to take you to the material. For present purposes, could your Honour go to our outline of submissions. Insofar as the introduction of the application and the amendment of the application is concerned there is no issue, as we understand it. Can I formally seek leave to amend the application in the form filed and there’s no objection taken to that.
PN597
THE DEPUTY PRESIDENT: All right. It’s attachment A, is it?
PN598
MR GARDNER: Yes, your Honour.
PN599
THE DEPUTY PRESIDENT: Is the amended - just bear with me while I attempt to find attachment A. There seem to be a lot of attachments.
PN600
MR GARDNER: It’s a Form R37 labelled Amended Application, looking a bit like this.
PN601
THE DEPUTY PRESIDENT: I can’t find it, I’m afraid. I have attachment D, I have attachment F, I don’t have attachment A. Yes I do, it’s a separate document is it? I have a document attached to a letter of Ryan Carlisle Thomas dated 18 April 2008 enclosing for filing an amended application; is that it?
PN602
MR GARDNER: That’s the one, your Honour. It’s both attached and separately filed in the registry.
PN603
THE DEPUTY PRESIDENT: Right, and what is the significance of it?
PN604
MR GARDNER: It more accurately reflects the nature of the matters in dispute and the relevant clauses to that in the original application.
PN605
THE DEPUTY PRESIDENT: Right.
PN606
MR GARDNER: Including giving a clause number correctly which was incorrect.
PN607
THE DEPUTY PRESIDENT: Well that always helps. Yes, go on.
PN608
MR GARDNER: So we seek leave to do that, your Honour. Paragraph 6 and 7, there is no issue taken with jurisdiction. I won’t trouble your Honour further with it. Paragraph 8, we identify the areas of grievance and I won’t trouble your Honour at this point with A, B but I will take you to C, and that’s a grievance over clause 28 of the agreement insofar as it requires the respondent to appoint a director of nursing at each hospital. I won’t take you to D and E, though I might have to come back to them. Can I take your Honour now to the agreement itself, and that agreement is attached to the witness statement of Barry Megennis and it’s attachment E.
PN609
THE DEPUTY PRESIDENT: Yes, I have it.
PN610
MR GARDNER: It was an agreement certified 1 December 2004. You will see in paragraph 2 that it applies in the State of Victoria to employees covered by the terms of the award. You will see at paragraph 4 that it’s to be read and interpreted wholly in conjunction with the award, subject to the usual inconsistency provision. You will see in clause 19 the avoidance of industrial disputes and grievances clause; there is no issue with that. Clause 21.4 and 21.5, you will see there is provision made for the director of nursing to have certain functions under the terms of the agreement.
PN611
THE DEPUTY PRESIDENT: Who is the individual in clause 19 affected?
PN612
MR GARDNER: Clause 19, your Honour?
PN613
THE DEPUTY PRESIDENT: Yes, it says, “The parties to this agreement recognise that from time to time individual employees may” et cetera.
PN614
MR GARDNER: Yes.
PN615
THE DEPUTY PRESIDENT: “An employee will have the right” et cetera. “The employee” et cetera and so on and so forth. So who is the individual referred to? Given that the one I had before me, that matter has been resolved.
PN616
MR GARDNER: There were two levels, two legs to this, your Honour. You remember or you may not remember - - -
PN617
THE DEPUTY PRESIDENT: Yes.
PN618
MR GARDNER: There was a dispute in relation to Ms Jenny King who was a director of nursing, but there was also another dispute and I can’t recall whether it was before your Honour or Commissioner Cribb, in relation to the - - -
PN619
THE DEPUTY PRESIDENT: I think it was both, but I might be wrong. I think it was both.
PN620
MR GARDNER: Right.
PN621
THE DEPUTY PRESIDENT: The matter was joined, wasn’t it?
PN622
MR GARDNER: I think Commissioner Cribb still got the dispute relating to more than people.
PN623
THE DEPUTY PRESIDENT: So it’s not actually before me then?
PN624
MR GARDNER: No, I’m coming at it a different way, your Honour.
PN625
THE DEPUTY PRESIDENT: Right.
PN626
MR GARDNER: The individuals in clause 19.
PN627
THE DEPUTY PRESIDENT: Yes.
PN628
MR GARDNER: Who have the dispute now represented by the Federation are that same group. So they have got a concern not only about - - -
PN629
THE DEPUTY PRESIDENT: All right, what are their names? I mean, I’m just trying to work out if I have jurisdiction over clause 19.
PN630
MR GARDNER: Yes, your Honour.
PN631
THE DEPUTY PRESIDENT: It seems to refer to individual employees.
PN632
MR GARDNER: Yes.
PN633
THE DEPUTY PRESIDENT: I have just read -
PN634
MR GARDNER: Yes.
PN635
THE DEPUTY PRESIDENT: Who are the employees who have a grievance, which I’m hearing now apparently.
PN636
MR GARDNER: Yes, well I will get you some names if you want some names.
PN637
THE DEPUTY PRESIDENT: All right. No, no, in your own time.
PN638
MR GARDNER: In due course, your Honour.
PN639
THE DEPUTY PRESIDENT: No, no, I just don’t like - - -
PN640
MR GARDNER: But the issue of course is - and I will come to it but I will refer to it briefly now.
PN641
THE DEPUTY PRESIDENT: Yes.
PN642
MR GARDNER: That in circumstances where there this is an appointment of director of nursing issue there are significant career structure opportunities that are involved in having or not having a director of nursing, a whole range of professional leadership issues and the like. Those individuals have concerns in that regard, as did Ms Jenny King, who was at the Essendon Hospital. So I will get those to you in due course.
PN643
THE DEPUTY PRESIDENT: No, that’s fine. So there are individuals with grievances who you are representing before me today; is that right?
PN644
MR GARDNER: Yes, your Honour.
PN645
THE DEPUTY PRESIDENT: Okay, thanks. Go on.
PN646
MR GARDNER: I was taking you to clause 21.4 and 21.5.
PN647
THE DEPUTY PRESIDENT: Yes.
PN648
MR GARDNER: Drawing your attention to the fact that the DON has functions under the agreement.
PN649
THE DEPUTY PRESIDENT: DON being what?
PN650
MR GARDNER: Director of nursing.
PN651
THE DEPUTY PRESIDENT: Okay.
PN652
MR GARDNER: Clause 25.
PN653
THE DEPUTY PRESIDENT: I see. I will just read that again. Right, so that envisages a specific role for the director of nursing doesn’t it?
PN654
MR GARDNER: Under the terms of the agreement, yes your Honour.
PN655
THE DEPUTY PRESIDENT: Okay, go on.
PN656
MR GARDNER: Clause 25.
PN657
THE DEPUTY PRESIDENT: Yes.
PN658
MR GARDNER: There’s a commitment by the hospitals to ensuring that staffing levels are appropriate, “Thus ensuring the delivery of quality of patient care and keeping within best practice principles which take into account patient acuity”. Your Honour one of the difficulties, as we understand it, of the respondent’s proposal is raised by an issue of backfill.
PN659
THE DEPUTY PRESIDENT: Right.
PN660
MR GARDNER: Let me explain it simply. If for example this on site person who is going to be acting is taken off somewhere else, you have immediately got a serious staffing level problem.
PN661
THE DEPUTY PRESIDENT: You may have, yes.
PN662
MR GARDNER: The evidence that you have from Ms Hutchings in relation to that issue is fairly clear.
PN663
THE DEPUTY PRESIDENT: Yes.
PN664
MR GARDNER: In paragraph 5(b) she refers to DON duties and their supernumerary character and, “Unable as a matter of practice to be undertaken by staff having unit ward responsibilities”. You will also see it in the first sentence of paragraph 6 about good nursing practice. Those two propositions in that material inform, we say - - -
PN665
THE DEPUTY PRESIDENT: What is appropriate for staffing.
PN666
MR GARDNER: Exactly, for the purposes of clause 25.
PN667
THE DEPUTY PRESIDENT: Supernumerary in that context means what?
PN668
MR GARDNER: Over and above staffing levels.
PN669
THE DEPUTY PRESIDENT: Right.
PN670
MR GARDNER: Sort of hands-on staffing levels.
PN671
THE DEPUTY PRESIDENT: Okay, thanks.
PN672
MR GARDNER: Then, your Honour, we come to clause 28 of the agreement and you will see there that it involves an agreement to appoint a director of nursing at each hospital. But we naively thought that that was the beginning and the end of the matter.
PN673
For our part we are unable to construe that provision as requiring anything more than the appointment of someone at each hospital in circumstances where, if one goes to appendix B to the agreement, you will see the hospitals there covered by the agreement.
PN674
THE DEPUTY PRESIDENT: Yes I see them. There are four of them, are there?
PN675
MR GARDNER: There are four of them, Pine Lodge is not presently relevant. Barranoor[sic] Private Hospital, as Mr Megennis tells us in his statement, changed its name to Essendon and the other two your Honour has heard about. So what we say very simply is that there is an obligation under the terms of the certified agreement to appoint a director of nursing at each hospital. One can see that there is a difference in clause 29, with the use of the language there where you appoint a unit manager to the ward or unit.
PN676
Then, your Honour, the last part of the agreement to which I want to direct your particular attention is the fact that in the schedules, provision is made for a Grade 7 registered nurse and in a little while it will become apparent to your Honour that a Grade 7 registered nurse is a director of nursing.
PN677
THE DEPUTY PRESIDENT: Also perhaps appendix C, Letter of Appointment; does that clarify what the word appoint means in clause 28? “A letter of appointment will contain the following information”.
PN678
MR GARDNER: Yes, your Honour.
PN679
THE DEPUTY PRESIDENT: Is that the same as appoint in 28 or is it something different? I don’t know that it is.
PN680
MR GARDNER: Well, it’s - - -
PN681
THE DEPUTY PRESIDENT: But does this mean that - yes, go on.
PN682
MR GARDNER: It means that someone who is the subject of an appointment is to receive a letter of appointment substantially in these terms.
PN683
THE DEPUTY PRESIDENT: Yes.
PN684
MR GARDNER: But that would apply both to a director of nursing and to other employees who were appointed. You will see it’s referred to in clause 30, the adoption of a standard employment letter involving the specification of the employee’s classification.
PN685
THE DEPUTY PRESIDENT: Paragraph 5 provides for full time or part-time or bank appointments, so there are three modes of appointment apparently.
PN686
MR GARDNER: Yes, your Honour.
PN687
THE DEPUTY PRESIDENT: What does bank mean?
PN688
MR GARDNER: That means when you are in what is described as a bank of available employees to be called in.
PN689
THE DEPUTY PRESIDENT: Full time and part-time are defined elsewhere in the agreement, are they?
PN690
MR GARDNER: Or the award, your Honour.
PN691
THE DEPUTY PRESIDENT: They’re defined in the award.
PN692
MR GARDNER: Yes.
PN693
THE DEPUTY PRESIDENT: Wonderful. Go on.
PN694
MR GARDNER: Your Honour I quickly took you to the witness statement of Ms Hutchings for the particular purpose I identified.
PN695
THE DEPUTY PRESIDENT: Yes.
PN696
MR GARDNER: Could I just invite your Honour to spend a minute looking at that statement. I know it has just been provided to you.
PN697
THE DEPUTY PRESIDENT: Sure. Okay.
PN698
MR GARDNER: Thank you, your Honour. The witness statement of Mr Megennis I haven’t referred you to and should do so. I know your Honour has read the papers. Substantial amounts of - well, it’s pretty much all not controversial. He goes through the terms of the agreement but can I direct your attention to a couple of things.
PN699
Paragraph 12 of the statement directs attention to clause 28 of the agreement. Mr Megennis’s statement refers to the fact that it reflected considerations that were common to the parties at the time. That’s on the basis of his evidence earlier about having been involved in the negotiations. He refers to a number of features. One is the position of the DON under other clauses of the agreement; your Honour has noted that. The provision of career structure opportunities for nurses in the context of the private hospital sector, and I have referred your Honour to that as well. He then refers to:
PN700
The identification of professional leadership roles for nursing divisions, career structure, industrial issues and the appointment of directors of nursing to individual hospitals reflected established standards of practice and professional requirements -
PN701
and:
PN702
The need for such a position given the impact on the staff workloads if the position was vacant.
PN703
Your Honour he then deals with clause 19 and I won’t trouble you with that. He does refer in paragraph 16 to the Private Hospitals and Day Procedures Regulations, a copy of which I’ve provided to your Honour, and said that they applied at the time of making the agreement. They provide that a proprietor must appoint a suitable person as the director of nursing of a private hospital and -
PN704
are required to appoint an acting director of nursing of the private hospital during any period of absence, incapacity or a vacancy in the position of the director of nursing.
PN705
Interestingly, your Honour, that language picks up the sort of discussion we were having a few minutes ago. Then there is a requirement to notify the secretary and so on. He is doing no more there than just summarising the regulations.
PN706
THE DEPUTY PRESIDENT: Just remind me, are you saying that there is some degree of ambiguity in clause 25, is it?
PN707
MR GARDNER: 28, your Honour.
PN708
THE DEPUTY PRESIDENT: Sorry, 28; to resolve an ambiguity having regard to Kadelfa and similar decisions. I have regard to this evidence of Mr Megennis about the background and context of the negotiations and the clause; is that the way this material is being put or something different?
PN709
MR GARDNER: Precisely, but as an alternative, because our first proposition is no argument. You look at the agreement, the plain language supports[sic]. End of story.
PN710
THE DEPUTY PRESIDENT: However if - - -
PN711
MR GARDNER: You are against us.
PN712
THE DEPUTY PRESIDENT: On that, yes, then we have regard to all the industrial background and context, which is unchallenged. Yes.
PN713
MR GARDNER: You jumped well ahead of me, your Honour.
PN714
THE DEPUTY PRESIDENT: No.
PN715
MR GARDNER: That’s exactly where I’m heading,.
PN716
THE DEPUTY PRESIDENT: Thank you for that. Well, still feel free to spell it out, okay?
PN717
MR GARDNER: Okay.
PN718
THE DEPUTY PRESIDENT: Thank you.
PN719
MR GARDNER: I won’t take you necessarily to highlight any other aspects of Mr Megennis’s statement at this point.
PN720
THE DEPUTY PRESIDENT: All right.
PN721
MR GARDNER: I may need to come back to it. Can I then invite your Honour to go to paragraph 9 of our outline.
PN722
THE DEPUTY PRESIDENT: Okay.
PN723
MR GARDNER: In that, what we do is we set about having characterised the nature of the dispute in relation to clause 28. We set out the factual background and I don’t read that to your Honour. It’s all pretty straightforward until we get to J and that picks up the propositions that I’m going to come to in a minute, in relation to the construction of the agreement. I’m picking up there exactly the sort of evidence that’s in Mr Megennis’s statement. What I do now need to do, your Honour, is take you to the award.
PN724
THE DEPUTY PRESIDENT: Right.
PN725
MR GARDNER: You will recall that clause 4 of the agreement tells us that in construing it we have got to read it in conjunction with the award. The award replaced a 1992 award which was the first Federal award made for nurses. I have some recollection that your Honour might have been involved in that at some stage or other.
PN726
THE DEPUTY PRESIDENT: Those were the days.
PN727
MR GARDNER: Those were the days indeed your Honour. You will see in the arrangement of clause 3 the way the award is structured. Part A is preliminary, then there are common conditions that relate to the registered nurses and mothercraft nurses and enrolled nurses. Part C relates to registered and mothercraft nurses, Part D to enrolled nurses.
PN728
We are concerned with registered nurses and so we turn to Part C and your Honour will see at clause 29 there are definitions. When one goes to clause 29.1(7) you will see there that there is a director of nursing definition.
PN729
THE DEPUTY PRESIDENT: Yes, I have it.
PN730
MR GARDNER: Yes. That is, when we are dealing with the clause in the agreement we are talking about someone being appointed as a director of nursing, and here is where we find the definition of that. Can I draw your Honour’s attention to the second limb of the definition. In the case of a private hospital - and we need not worry about the residential care facilities because we are not one of those, “Where the proprietor is not a working director of nursing” - and that is the case here, “the resident nursing manager shall be classified and paid as the director of nursing”. What we say is that even on the respondent’s scenario of having someone who was there three days or three and a half days a week, or whatever it is - - -
PN731
THE DEPUTY PRESIDENT: One point five to two I seem to remember. I might be wrong about that.
PN732
MR GARDNER: I’m sorry, I’m talking about the person who is - yes, the state manager is there one point five or two.
PN733
THE DEPUTY PRESIDENT: I see.
PN734
MR GARDNER: I’m talking of the person - - -
PN735
THE DEPUTY PRESIDENT: The local acting up person.
PN736
MR GARDNER: Exactly. Exactly.
PN737
THE DEPUTY PRESIDENT: Right.
PN738
MR GARDNER: That person, we say, would in any event meet the resident nursing manager description and they need to be classified and paid as the director of nursing. Because it’s submitted that there’s no way that, properly described, this state manager could be regarded as the resident nursing manager.
PN739
So we say that under both legs, both limbs of 29.17, the first one there’s an obligation under the agreement to appoint a registered nurse as a director of nursing. But in any event clause - the second part of 19.17 kicks in to address the approach proposed by the respondent. Your Honour, I anticipated a question from you in relation to the meaning of the word resident.
PN740
THE DEPUTY PRESIDENT: I was holding my fire but go on. I was about to ask that.
PN741
MR GARDNER: I won’t labour the point but can I say that resident doesn’t, in that context, refer to patients. That’s for a number of reasons. The one is that it refers to a private hospital and its nursing homes who have residents, not private hospitals.
PN742
THE DEPUTY PRESIDENT: So the colloquial term for the patients is not resident in this area of the industry.
PN743
MR GARDNER: Absolutely not in this area of the industry.
PN744
THE DEPUTY PRESIDENT: Okay.
PN745
MR GARDNER: And absolutely not in this area of the industry at the time that this definition went into the award in 1992, the first Federal award. It’s the same definition, used the same language.
PN746
THE DEPUTY PRESIDENT: Well the word resident implies a sort of ordinary living arrangement.
PN747
MR GARDNER: No, your Honour.
PN748
THE DEPUTY PRESIDENT: Doesn’t it?
PN749
MR GARDNER: Not in this context.
PN750
THE DEPUTY PRESIDENT: No, but if it refers to a patient- - -
PN751
MR GARDNER: I’m sorry, yes, your Honour.
PN752
THE DEPUTY PRESIDENT: - - - who was in a sense living there, which is suitable for an old persons’ home - - -
PN753
MR GARDNER: Exactly.
PN754
THE DEPUTY PRESIDENT: But a bit difficult to apply to a situation of sickness.
PN755
MR GARDNER: It can’t apply to a private hospital, yes.
PN756
THE DEPUTY PRESIDENT: Or illness. Yes, I see.
PN757
MR GARDNER: There’s logic in the history of this as well, your Honour.
PN758
THE DEPUTY PRESIDENT: Yes.
PN759
MR GARDNER: Very briefly, prior to 1997 private hospitals and nursing homes had patients. In 1997 the Aged Care Act came into effect, including the quality of care principles. It was from that point on that you start getting people called residents.
PN760
THE DEPUTY PRESIDENT: Right.
PN761
MR GARDNER: This definition predated 1997 so resident can’t have been referring to the people that might otherwise be known as patients.
PN762
THE DEPUTY PRESIDENT: All right. You will need to provide me with that Act if you want to rely on it. I’m sorry, but if that’s all right.
PN763
MR GARDNER: I can do that, your Honour.
PN764
THE DEPUTY PRESIDENT: I know it’s another forest.
PN765
MR GARDNER: I can provide you perhaps most conveniently with an extract from the Quality of Care Principles 1997 that involve the Charter of Resident Rights, which is the first time one really sees the use of resident.
PN766
THE DEPUTY PRESIDENT: All right, thank you.
PN767
MR GARDNER: On that issue, your Honour, you will see that in the definition of 29.33 there’s a definition of extended care and in 29.33.7 and 3.8 you can see for the first time in 2002 there included - I make good my submission in any event by reference to the award.
PN768
THE DEPUTY PRESIDENT: I see.
PN769
MR GARDNER: For the first time we are getting residential care facilities introduced.
PN770
THE DEPUTY PRESIDENT: Yes, which is consistent with the information you just gave.
PN771
MR GARDNER: Which is consistent with what I say.
PN772
THE DEPUTY PRESIDENT: Yes.
PN773
MR GARDNER: We also get it in 29.36 where we have residential aged care facility classifications, brought in in 2002, and there we have a director of nursing residential aged care. Also consistent with the submission I’ve been making, your Honour.
PN774
THE DEPUTY PRESIDENT: Yes.
PN775
MR GARDNER: Can I ask your Honour, on this issue, before I just finish it so I can get it out of the road; in our reply there is attached to that reply a document marked Reply B, and it’s an extract from the Oxford - - -
PN776
THE DEPUTY PRESIDENT: Yes.
PN777
MR GARDNER: Can I take your Honour to the definition of resident, and I take you half-way down the first page in the right-hand column, 2A:
PN778
Staying in or at a place in discharge of some duty or in compliance with some regulation.
PN779
That’s the context here, your Honour.
PN780
THE DEPUTY PRESIDENT: Yes, I see.
PN781
MR GARDNER: In the discharge of some duty or regulation is particularly apt here because we’ve actually got literally a regulation that I’ve taken your Honour to, requiring the appointment of a director of nursing. So one can see both in terms of responsibility under the award and the regulation that that’s the appropriate definition of resident. I’ve gone on and on about it, but I knew it was going to cause a question.
PN782
THE DEPUTY PRESIDENT: No, no, that’s interesting. So there has to be someone resident ie. there in each of the four hospitals in the sense of staying there.
PN783
MR GARDNER: Well, no, in the sense of being there to discharge their duties.
PN784
THE DEPUTY PRESIDENT: Yes.
PN785
MR GARDNER: Yes.
PN786
THE DEPUTY PRESIDENT: As opposed to moving about you say?
PN787
MR GARDNER: Or sleeping there.
PN788
THE DEPUTY PRESIDENT: Yes. Okay, go on.
PN789
MR GARDNER: So again, your Honour, if you are against us, we are - I withdraw that. In order to understand clause 28 of the agreement we are looking at the award and we are saying if the respondent commits to appointing a director of nursing, that’s what we are talking about. It’s consistent with what we say, which is the appointment of a person at each of the facilities.
PN790
Clause 31, your Honour, provides for the classification in grades. It provides that the various registered nurses are to be classified according to the grading of 1, 2, clinical and specialist and so on. Your Honour will see at clause 31.10.2 - - -
PN791
THE DEPUTY PRESIDENT: Sorry, is this the award or the agreement?
PN792
MR GARDNER: This is the award.
PN793
THE DEPUTY PRESIDENT: Right.
PN794
MR GARDNER: So still on the award.
PN795
THE DEPUTY PRESIDENT: Okay, 31 point what?
PN796
MR GARDNER: Clause 31 is classification and grades and obligation for an employer to classify registered nurses.
PN797
THE DEPUTY PRESIDENT: Right, yes.
PN798
MR GARDNER: 31.10.2 provides that a registered nurse appointed as a director of nursing be classified as a Grade 7. Your Honour will recall that I took you to the schedule at the back of the agreement and I drew your attention to the provision for a Grade 7 classification. That’s where it comes from. That is, a director of nursing is to be appointed, they are to be appointed at Grade 7. I won’t trouble your Honour with salaries because they are picked up in the agreement.
PN799
THE DEPUTY PRESIDENT: Go on.
PN800
MR GARDNER: I should just say though, your Honour, that the Grade 7 salaries in the agreement provide for salary rates at particular bed numbers, bed numbers that are appropriate for the facilities there concerned. So depending on how many beds you have got, you get a different sort of salary.
PN801
THE DEPUTY PRESIDENT: Yes.
PN802
MR GARDNER: Clause 33 of the agreement - of the award, I withdraw that. 33 of the award - I’m still on the award - provides for higher duties and this comes back to the question of someone being paid on higher duties if they are engaged in duties carrying a higher rate of pay.
PN803
THE DEPUTY PRESIDENT: That’s the operative provision for higher duties, is it?
PN804
MR GARDNER: Yes, your Honour.
PN805
THE DEPUTY PRESIDENT: Or acting, if I could use that phrase.
PN806
MR GARDNER: Well, it raises an issue, your Honour.
PN807
THE DEPUTY PRESIDENT: Right.
PN808
MR GARDNER: It’s the provision for higher duties. That’s what it says.
PN809
THE DEPUTY PRESIDENT: Yes.
PN810
MR GARDNER: I would perhaps be discouraging your Honour from slipping into the vernacular in this context. But your Honour the next clause is 34 and that deals with the classification structure for private hospitals such as we are dealing with here. Each of them is 60 beds or less and you will see that 34.1 says:
PN811
Notwithstanding anything else where appearing, these provisions will apply but all other provisions of this Part shall apply.
PN812
So I think what it means, and it’s submitted that what it means, is that in the absence of an inconsistency then all other provisions of the part apply; these particular provisions apply in the private hospitals. It doesn’t really matter a lot, your Honour, the way in which that is construed for the purpose we have and that is that if we go to clause - - -
PN813
THE DEPUTY PRESIDENT: There’s the word supernumerary.
PN814
MR GARDNER: It is.
PN815
THE DEPUTY PRESIDENT: Which is, I suppose, relevant to the question we discussed before.
PN816
MR GARDNER: Yes.
PN817
THE DEPUTY PRESIDENT: In the witness evidence of Ms Catherine - - -
PN818
MR GARDNER: Hutchings.
PN819
THE DEPUTY PRESIDENT: Hutchings, yes.
PN820
MR GARDNER: Yes, that’s the sense in which she is using it obviously. I think I did justice to the definition.
PN821
THE DEPUTY PRESIDENT: No, you said the same thing.
PN822
MR GARDNER: Clause 34.5, your Honour, is where we want to take you now and that is where we have got a single service delivery facility. You will see that there’s an AM, PM, ND, and under one ward, three beds or less, or two wards, and so on. There’s a reference in AM to DON and 4A and DON 4A and 4A. What that means - and Mr Megennis explains it - is that in a private hospital that is a single service delivery facility, and that’s defined, you need on an AM shift - that’s during the day rather than evening or night - to have appointed a director of nursing at each hospital.
PN823
THE DEPUTY PRESIDENT: So that’s where the employer gets that statement from and we discussed before, is it?
PN824
MR GARDNER: I don’t think the - sorry, which statement, your Honour?
PN825
THE DEPUTY PRESIDENT: Sorry, the employer at paragraph 6A states, “The award requires that all the response and locations of a morning shift” and so on and so forth.
PN826
MR GARDNER: Yes, your Honour, that’s exactly right.
PN827
THE DEPUTY PRESIDENT: So that’s probably referring here?
PN828
MR GARDNER: Yes, yes. The reason I take your Honour to it is for a somewhat different purpose -well no, it’s the same purpose but it’s in the context of construing the agreement.
PN829
THE DEPUTY PRESIDENT: Yes.
PN830
MR GARDNER: If one is saying that there is an obligation under the agreement to appoint a director of nursing at each hospital, and you read the agreement in conjunction with the award, and the award provides for you to have a director of nursing on every morning shift, it seems to us that that is the end of the story because you can’t have a director of nursing on the morning shift at all three hospitals simultaneously.
PN831
THE DEPUTY PRESIDENT: Four hospitals.
PN832
MR GARDNER: The parties, your Honour, in reaching their agreement for the appointment of a director of nursing at each hospital - - -
PN833
THE DEPUTY PRESIDENT: It’s a very badly drafted clause. I mean, where is the doing word?
PN834
MR GARDNER: The which word?
PN835
THE DEPUTY PRESIDENT: The doing word, the verb. It says, “34.5 Service Delivery” then it has, “Single service delivery ie”. Where is the operative clause? I don’t understand. Is it in the earlier part of 34 perhaps, “The following provisions shall apply”.
PN836
MR GARDNER: That’s the doing clause, your Honour, for want of a better term. It’s one of those clauses - - -
PN837
THE DEPUTY PRESIDENT: That you refer back to the first sentence of the clause to understand it. Yes.
PN838
MR GARDNER: Indeed.
PN839
THE DEPUTY PRESIDENT: Okay.
PN840
MR GARDNER: As Mr Megennis in his statement said, it’s a formulation that is entirely familiar in the industry, your Honour.
PN841
THE DEPUTY PRESIDENT: Right.
PN842
MR GARDNER: It’s second nature.
PN843
THE DEPUTY PRESIDENT: I understand, yes.
PN844
MR GARDNER: So whilst on its face it might look a bit peculiar, you show it to anyone in the industry and they know immediately, and the respondent in this case understands it, your Honour.
PN845
THE DEPUTY PRESIDENT: Yes.
PN846
MR GARDNER: We’re all of one mind.
PN847
THE DEPUTY PRESIDENT: Yes.
PN848
MR GARDNER: So coming back then to clause 28 of the agreement - and I keep coming back to it, without apology - the respondent is required to appoint a director of nursing at each hospital. Read in conjunction with this provision, it’s submitted that it’s simply inconceivable for the parties to be referring to, or for the clause to mean anything other than, the appointment of someone full time at each hospital in order to be able to satisfy the requirement of 34.5.
PN849
34.6 I will just take your Honour to for completeness. Here we’ve got a clause that provides for the weekend shifts, “That in the absence of the director of nursing”. So again, what we are contemplating is a director of nursing who is there full time effectively, but on weekend shifts we’ve got a director of nursing who is absent and there’s provision made for it, “and to be paid at a Grade 5 level”.
PN850
Your Honour, that’s the provision that deals with the acting up scenario. It’s expressly dealt with in a weekend context. It doesn’t contemplate the sort of picture that we understand the respondent to be putting.
PN851
THE DEPUTY PRESIDENT: A kind of permanent acting up, ongoing, regular or permanent acting up, if I can use that phrase.
PN852
MR GARDNER: Yes, well exactly, your Honour, and we just say that that just doesn’t work. That’s not what clause 33 Higher Duties is about and it’s not what this clause is about. It’s a sort of a - well, it’s an invention, your Honour, that has no basis in the industrial instruments.
PN853
The last clause I take you to in the award, your Honour, is clause 35 and we simply draw attention to the fact that that’s an obligation on the employer and hasn’t been complied with in this case. The advertisement concerned is attached to our reply and it didn’t specify the classification required. Your Honour’s understandable testiness at the beginning of the proceedings might have been obviated if the respondent had complied with that clause, by specifying the classification as they were required to do in the advertisement.
PN854
THE DEPUTY PRESIDENT: I’m not sure testiness is the right word. Perhaps perplexity is a better word.
PN855
MR GARDNER: Perplexity. I unqualifiedly withdraw testiness your Honour.
PN856
THE DEPUTY PRESIDENT: Thank you.
PN857
MR GARDNER: Returning then, your Honour, to our outline, we try and identify in paragraph 10 the practical issues. These are the sorts of issues that we have been discussing. Whether the appointment of a single Victorian state manager satisfies the obligations under the agreement, and we say no. Whether the absence of a full time director of nursing is consistent with the agreement, we say no.
PN858
THE DEPUTY PRESIDENT: So this is the sort of determination you are seeking really?
PN859
MR GARDNER: Sort of. I’ll get to what we actually seek by way of orders in due course.
PN860
THE DEPUTY PRESIDENT: Okay.
PN861
MR GARDNER: But we were trying at this stage - your Honour these were our opening submissions you remember. I was trying to be helpful really, to refine the issues, and in paragraph 11 you will see the way in which we put it and in paragraph 11C we advance some orders. But I withdraw that submission in favour of what we say in reply, given that Ms King is no longer a concern. We refer to that - we don’t need to deal with that at the moment.
PN862
Your Honour we then deal with the question of the construction of the agreement having, I hope, laid the groundwork both in terms of Mr Megennis’s evidence, Ms Hutchings’s evidence. I’ve taken you to the agreement and I’ve taken you to the award. I’ve drawn your attention to the private hospital regulations and I’ve given you a little bit of the background to the resident nurse manager.
PN863
The authorities on this approach to construction are well settled, it would have to be said, and I’m not going to trouble you with all those authorities. What I will do, your Honour, is just provide one decision which is a recent decision of Vice President Lawler of 8 April 2008.
PN864
THE DEPUTY PRESIDENT: I remember that. He canvasses a lot of this doesn’t he?
PN865
MR GARDNER: He does, your Honour. It’s just really a very convenient - - -
PN866
THE DEPUTY PRESIDENT: Summary.
PN867
MR GARDNER: - - - summary of it all and I provide it to your Honour for that purpose. Starting at paragraph 7, he refers to the
Telstra Full Bench decision, which in turn takes us to Kadelfa and then BP Australia where Nicholson J distilled in a very hand passage
the following points for resolving an ambiguity in contracts, and we know that the same approach is to be applied in respect of agreements.
He then refers to Kucks v CSR and the judgment of Madgwick J.
I don’t take you to all those authorities. It takes us to UFU and of course Short v F W Hercus which has been long the sort
of template or standard authority in relation to it. That’s the legal context - - -
PN868
THE DEPUTY PRESIDENT: It’s all common sense as Burchett J says in Short, but anyway go on.
PN869
MR GARDNER: You would hope so, your Honour, but a lot has been written about it.
PN870
THE DEPUTY PRESIDENT: I know. Go on.
PN871
MR GARDNER: We just make two other points that perhaps don’t emerge necessarily from the Vice President’s summary.
PN872
THE DEPUTY PRESIDENT: Yes.
PN873
MR GARDNER: One is that agreements and awards are to be construed in the context of the commercial and industrial realities. The industrial realities in this case have been referred to by Mr Megennis including the issue of nurses’ career structure. Your Honour, Mr Megennis’s evidence is unchallenged and he makes it clear that the parties at the time were concerned about career structure.
PN874
I’m saved from having to do a survey of nurses’ career structure of development since 1986. I looked the case up; it’s over 20 years now since the Industrial Relations Commission of Victoria first did the professional rates - sorry, the career structure cases, and they continued right through in the Federal Commission and so on. That’s the industrial context and Mr Megennis gives evidence about it. Critical to that career structure issue was that there be a director of nursing.
PN875
THE DEPUTY PRESIDENT: I recall those decisions.
PN876
MR GARDNER: Your Honour, you are probably thinking of Alley J, Cohen J and Commissioner Bain in A257, the anomalies conference.
PN877
THE DEPUTY PRESIDENT: Very hard fought.
PN878
MR GARDNER: And PR G7200, very hard fought stuff, your Honour.
PN879
THE DEPUTY PRESIDENT: Were those the matters where there were also state-wide strikes?
PN880
MR GARDNER: Absolutely, your Honour.
PN881
THE DEPUTY PRESIDENT: Of very long duration.
PN882
MR GARDNER: Yes.
PN883
THE DEPUTY PRESIDENT: Great contention.
PN884
MR GARDNER: All that stuff.
PN885
THE DEPUTY PRESIDENT: Yes, I remember.
PN886
MR GARDNER: Yes.
PN887
THE DEPUTY PRESIDENT: I well remember all of that.
PN888
MR GARDNER: So I won’t take you down there. We rely upon Mr Megennis’s evidence in relation to that.
PN889
Can I take you to paragraph 13 of our outline of submissions, your Honour. Against the background I’ve given you we say that the plain language of clauses 25, and in particular 28, compel the conclusion for which we contend. The structure of the agreement and its application to the four hospitals, though only three are relevant in this context; the role and functions of the DON under the terms of the agreement itself; the provision for the separate wage rates for the Grade 7 registered nurse in the schedule; the reference to the hospitals as individual enterprises. That was in 14.2. I didn’t direct your attention to it and I do now. Clause 4 of the agreement; the effect of clauses 29, 31 and 34 of the award which I’ve taken you to; the terms of the regulations; the factual matters and the duties of the DON at the hospital and their facility-based focus.
PN890
In the next section I deal with the characterisation of the dispute, your Honour, but in fact that has fallen away because the parties have somewhat refined their positions since then, so I don’t need to trouble you with that part of it, I don’t think.
PN891
But could I take your Honour then to our reply. Can I immediately say that throughout this reply I’ve repeatedly described clause 28 of the agreement as clause 29. Wherever there’s a reference to clause 29 of the agreement it should be clause 28, and that’s in at least 4A.
PN892
THE DEPUTY PRESIDENT: Yes, I see.
PN893
MR GARDNER: 6A, 6B, 6E1. 29.17 of the award is correct of course, but F and G have got even worse because I think I just called it clause 9.
PN894
THE DEPUTY PRESIDENT: It’s 28, is it?
PN895
MR GARDNER: It’s 28. Paragraph 9 and subparagraph (1), that should definitely be amended. Turning then, your Honour, to paragraph 2; I won’t take you to it. Paragraph 3, we refer to the key features of the respondent’s proposal.
PN896
THE DEPUTY PRESIDENT: Is that still the case or has it varied?
PN897
MR GARDNER: Well, that’s still as we understand the position.
PN898
THE DEPUTY PRESIDENT: I’ll just read it again. I think in B it’s not just to be paid at the level, it’s temporary classified at the level isn’t it? I think that’s what we heard this morning, but I might be wrong about that.
PN899
MR GARDNER: That was the new development I think.
PN900
THE DEPUTY PRESIDENT: Yes.
PN901
MR GARDNER: We would of course say you can’t have a temporary classified.
PN902
THE DEPUTY PRESIDENT: No, no.
PN903
MR GARDNER: Yes. In paragraph - - -
PN904
THE DEPUTY PRESIDENT: I think that’s what it was. Go on.
PN905
MR GARDNER: In paragraph 4 we sort of identified the issues that would still remain as difficulties if the proposal was advanced as we understand it. I won’t read it but then in paragraph 6 we make a number of points. In paragraph B we say clause 28 requires the appointment of a full time director of nursing. We accept that there might be a job share, that’s not uncommon.
PN906
Paragraph C you will see what we say. Paragraph D, merely because there’s part-time employment in the industry doesn’t mean that the position is required to be filled on a full time basis.
PN907
Then we make some observations about the senior nurse manager appointments. We say it doesn’t satisfy clause 28. It’s a director of nursing role. We refer to clause 29.17 of the award and you recall our submissions in relation to that.
PN908
THE DEPUTY PRESIDENT: Well we have just been told that they would be classified as director of nursing I think. Go on.
PN909
MR GARDNER: You see, your Honour, the clause 33 of the award which I took you to talks about positions being classified. So classified is not just a loose term, it actually is a formal term required under the award for - - -
PN910
THE DEPUTY PRESIDENT: It means the substantive position, does it?
PN911
MR GARDNER: Yes, your Honour.
PN912
THE DEPUTY PRESIDENT: Right.
PN913
MR GARDNER: That’s what classified means in this context and of course that’s the word that’s used in 29.17 of the award, and then we find Grade 7 in the schedule to the agreement with the different salary rates. As your Honour observed, we’ve got the appointment requirement, the letter of appointment requiring the identification of the classification, so this is a sort of a consistent theme through the instruments.
PN914
We refer to clause 29.17. In paragraph (vi) on the top of page 4 I refer to the longstanding reference and some of the materials I referred to in relation to the meaning of resident. If required your Honour, in reply, after hearing my friend, I might need to take you to some of those materials if issue is taken with it but I won’t for the time being.
PN915
In F we make the point that this structure involved in acting up in higher duties isn’t appropriate for clause 33. In H we say this is not really about titles. In I we say that:
PN916
Where a full time state manager executive director of nursing role is maintained and the senior nurse manager positions foreshadowed, classified as director of nursing positions, having DON responsibilities for the facilities concerned and paid as such under the schedule to the agreement, there would be no further dispute over the application of the agreement in respect of clause 28.
PN917
That’s as best we can formulate what we say is the obligation under the agreement, and so if that were done there would be no problem. But your Honour, it seems to us clear that that is not what is proposed. Certainly it’s not what is in place at the moment.
PN918
Then we refer in J to how we understand the position and then we note that Ms King’s position has been resolved. Paragraph
8 has been overtaken by events and in paragraph 9 we submit what orders are appropriate, and we submit that in the resolution of
this dispute over the application of the agreement that, “The Commission should make an order that the respondent, pursuant
to clause 28”,
not 29, “of the agreement establish and fill by appointment a full time position of director of nursing”. Your Honour,
on my feet I might just amend that, if I may?
PN919
THE DEPUTY PRESIDENT: Which part?
PN920
MR GARDNER: Paragraph 9 and subparagraph (1) of that.
PN921
THE DEPUTY PRESIDENT: Yes, which part of paragraph 9?
PN922
MR GARDNER: I would like to, after the words “a full time position” insert the words “classified as” and delete the word “of”.
PN923
THE DEPUTY PRESIDENT: Okay.
PN924
MR GARDNER: In paragraph 2:
PN925
That each of the three positions be remunerated at the Grade 7 level in accordance with the schedule to the agreement.
PN926
And that:
PN927
To avoid uncertainty, part-time appointments may be made to fill each full time position of director of nursing at each hospital provided the positions are occupied on a full time basis.
PN928
That’s the job share point, your Honour. We are not saying that people have to be full time, but the position is.
PN929
At four:
PN930
That pending the making of such appointments the respondent make acting appointments within seven days of this order.
PN931
Your Honour, those are the orders that we say follow from what is a very simple clause in the agreement that imposes an obligation on the respondent to appoint a director of nursing at each hospital. It couldn’t be clearer, in our submission. If you are against us, you have heard what we have said. Those are our submissions, subject to anything your Honour has, or in reply.
PN932
THE DEPUTY PRESIDENT: No, thank you very much for that. Thank you. Ms Collier.
PN933
MS COLLIER: Thank you, your Honour and thank you, Mr Gardner.
PN934
Your Honour, we are somewhat disadvantaged today because of the timelines of these matters and discussions that have been going on with the Department of Human Services; and the development of our structure and key personnel recruitment activity.
PN935
However, I can say this. I concurred with your comments earlier that when you read the submission you wondered why we are here. Your Honour we have wondered what this dispute has been about for some time. Mr Gardner refers to our proposal. There is no proposal, your Honour. Mr Gardner refers consistently for the need for us to appoint a director of nursing. Your Honour, we have appointed a director of nursing at each and every hospital. The person’s name is Ms Marie Wilson.
PN936
THE DEPUTY PRESIDENT: Is she resident?
PN937
MS COLLIER: Your Honour, Ms Wilson fulfils the requirements of the Act, as regulated by the Department of Human Services. She fulfils Part 4 of the regulations, Division 1, director of nursing.
PN938
MR GARDNER: Your Honour, I don’t like to interrupt my friend but those are assertions from the bar table with which we take issue.
PN939
THE DEPUTY PRESIDENT: Right, I see, so it’s not evidence before the Commission?
PN940
MR GARDNER: No, your Honour.
PN941
MS COLLIER: Your Honour, I will get to that - - -
PN942
THE DEPUTY PRESIDENT: Just a minute.
PN943
MS COLLIER: Mr Gardner has talked for two hours, may I please have an opportunity to speak?
PN944
THE DEPUTY PRESIDENT: Yes, just a minute, Ms Collier.
PN945
Her written submissions were tendered and those assertions are contained within them aren’t they, or not?
PN946
MR GARDNER: They are submissions, yes. They are submissions your Honour. They are not evidence and what has just been said, your Honour, is that a structure - - -
PN947
THE DEPUTY PRESIDENT: You see attachment B - - -
PN948
MR GARDNER: Well that’s a submission, your Honour.
PN949
THE DEPUTY PRESIDENT: I see.
PN950
MR GARDNER: All that’s said is - it’s in the same type face as the submission. It’s described as a latest proposal.
PN951
THE DEPUTY PRESIDENT: Yes.
PN952
MR GARDNER: Well a latest proposal doesn’t take us very far and then we get a submission that the latest proposal satisfies the regulator under the regulations, which you’ve got before you, your Honour.
PN953
THE DEPUTY PRESIDENT: I’m not sure she goes that far, does she? Doesn’t she assert - - -
PN954
MR GARDNER: Well she just said that DOHS were satisfied.
PN955
THE DEPUTY PRESIDENT: Right.
PN956
MR GARDNER: My only point is that is not evidence before your Honour and we don’t accept it.
PN957
THE DEPUTY PRESIDENT: Right. Ms Collier?
PN958
MS COLLIER: Thank you, your Honour. As I said, we are somewhat disadvantaged with timelines. As this matter has been drawing closer, our discussions with DOHS have been continuing.
PN959
THE DEPUTY PRESIDENT: No, sorry Ms Collier. If you want to make statements of that sort you will have to give sworn evidence about it and be subject to cross-examination.
PN960
MS COLLIER: Your Honour I’m unable to give sworn evidence.
PN961
THE DEPUTY PRESIDENT: Just let me finish. You see, I can’t receive evidence from the bar table except by consent, okay?
PN962
MS COLLIER: Thank you.
PN963
THE DEPUTY PRESIDENT: So if you want to make those statements and rely on them it will have to be in the form of sworn evidence, all right?
PN964
MS COLLIER: Thank you your Honour.
PN965
THE DEPUTY PRESIDENT: Otherwise I won’t have regard to them. Is that understood?
PN966
MS COLLIER: Yes, it is understood. Thank you your Honour.
PN967
THE DEPUTY PRESIDENT: Okay.
PN968
MS COLLIER: In regard to our responses to the applicant’s material, I will refer you to - - -
PN969
THE DEPUTY PRESIDENT: Sorry, I had a question which I just asked, which is this.
PN970
MS COLLIER: Yes.
PN971
THE DEPUTY PRESIDENT: You just said that you had appointed a director of nursing.
PN972
MS COLLIER: Yes. That is in - - - .
PN973
THE DEPUTY PRESIDENT: Yes. Now my question was this - I will take you to clause 29.17 of the award. Do you see that? Do you see 29.17 of the award?
PN974
MS COLLIER: Well I don’t have the award in front of me, your Honour.
PN975
THE DEPUTY PRESIDENT: You don’t?
PN976
MS COLLIER: But I’m aware of the meaning of the term resident.
PN977
THE DEPUTY PRESIDENT: Well it seems to suggest a director of nursing has to be resident. It says:
PN978
In the case of a private hospital…where the proprietor is not a working director of nursing, the resident nursing manager shall be classified and paid as the director of nursing.
PN979
Okay? Now that suggests that there is a resident nursing manager at each of the four hospitals that you represent.
PN980
MS COLLIER: Three.
PN981
THE DEPUTY PRESIDENT: Resident being there on the spot or words to that effect. How is your state-wide director of nursing resident?
PN982
MS COLLIER: Our state-wide director of nursing is not at each facility five days of the week, your Honour. She divides her week amongst the three facilities and she is resident - - -
PN983
THE DEPUTY PRESIDENT: So she is simultaneously resident at four hospitals?
PN984
MS COLLIER: No, at three.
PN985
THE DEPUTY PRESIDENT: Three.
PN986
MS COLLIER: We only have three hospitals, your Honour. She is resident
at - - -
PN987
THE DEPUTY PRESIDENT: Sorry, there is four listed in the appendix to your agreement.
PN988
MS COLLIER: Your Honour, the agreement was an inherited agreement from another - - -
PN989
THE DEPUTY PRESIDENT: I see, so one of those is not there anymore?
PN990
MS COLLIER: That's correct.
PN991
THE DEPUTY PRESIDENT: Which one is not there any more?
PN992
MS COLLIER: The only hospitals that we have are Essendon, which is referred to as Barrambin, Mountain District and Malvern Private.
PN993
THE DEPUTY PRESIDENT: Okay, thank you for that.
PN994
MS COLLIER: So there are three hospitals that are relevant. Our director of nursing is resident at those three hospitals.
PN995
THE DEPUTY PRESIDENT: Is resident at those three.
PN996
MS COLLIER: On different days of the week. In her absence she is replaced by an acting director of nursing. Now the disagreement over the words pay versus classification; the person who replaces her when she is not there is an acting director of nursing; they receive that pay level or classification. They simply perform the duties that are associated with the requirements of that classification. They are the acting director of nursing.
PN997
In terms of trying to clarify the exact nature of the dispute - and again I may be wrong because I’ve struggled with this from the start - it seems to me that the applicant wants us to call both people at each site director of nursing, rather than director of nursing and acting director of nursing.
PN998
THE DEPUTY PRESIDENT: Well let me take you to paragraph 9 of the applicant’s reply submissions. Could you have a look at that now, please?
PN999
MS COLLIER: The first reply or the second reply, your Honour?
PN1000
THE DEPUTY PRESIDENT: Sorry, exhibit ANF4.
PN1001
MS COLLIER: Four.
PN1002
THE DEPUTY PRESIDENT: Exhibit ANF4, paragraph 9.
PN1003
MS COLLIER: Numbered nine, your Honour?
PN1004
THE DEPUTY PRESIDENT: Yes, paragraph 9. Do you see that? Do you have that there in front of you?
PN1005
MS COLLIER: I’m sorry, my number 9 says, “It is submitted that the following orders are appropriate”.
PN1006
THE DEPUTY PRESIDENT: Yes, that’s the one.
PN1007
MS COLLIER: Yes.
PN1008
THE DEPUTY PRESIDENT: That’s what they want, that’s their view. Now you take me through those paragraphs and tell me if you disagree with any of it. You may well not, I don’t know.
PN1009
MS COLLIER: Your Honour, we disagree with - it is difficult to - - -
PN1010
THE DEPUTY PRESIDENT: Just a minute. I’ll ask him again.
PN1011
MS COLLIER: Yes.
PN1012
THE DEPUTY PRESIDENT: Say I’m of a mind - and I’ve made no decision because I haven’t heard your full submissions - say I make a determination. I don’t use the word order for such matters under 170LW, a determination to the effect of paragraphs 9(1), two, three and four. Which of those, if any, do you specifically not agree with?
PN1013
MS COLLIER: Your Honour, we don’t agree with paragraph 1.
PN1014
THE DEPUTY PRESIDENT: Okay.
PN1015
MS COLLIER: Sorry, Part 1 and I will explain why.
PN1016
THE DEPUTY PRESIDENT: Sure.
PN1017
MS COLLIER: There are three facilities. Previously each facility had a full time director of nursing in each facility, which was a different person.
PN1018
THE DEPUTY PRESIDENT: Yes.
PN1019
MS COLLIER: When that person was absent, acting people filled those jobs.
PN1020
THE DEPUTY PRESIDENT: Yes.
PN1021
MS COLLIER: Either on a daily, weekly or monthly basis.
PN1022
THE DEPUTY PRESIDENT: Yes.
PN1023
MS COLLIER: Because of the financial situation and business direction of the company, the three facilities will be managed by the one director of nursing and rather than run as three hospitals that compete against each other and impact on profit, they are to be run as one hospital with three different campuses, if you like. It’s a different concept. It’s not articulated in the award but there are precedents, I’m told, for this kind of arrangement. So the one director of nursing provides corporate leadership and nurse leadership across the three facilities.
PN1024
Clearly the award requires the presence of a director of nursing five days a week in each facility. In order to fulfil that obligation we appoint a senior nurse manager to perform acting duties in the director of nursing’s absence. Now some days of the week she may be at Malvern for five days of that week. Some days of the week she may be at Malvern for one day of that week. She may be required to travel to Sydney. She may be required to travel to Canberra and so on and so forth. In her absence, key staff will be appointed as acting director of nursing to fulfil the requirements of the award.
PN1025
The applicant has talked about their concerns of aggrieved employees who are concerned about this. Your Honour, we are not aware and we challenge that. We don’t believe that there are any aggrieved employees about this arrangement. The applicant has talked about nurses must have career opportunities. We agree your Honour. They must have career opportunities and we are trying to provide them. But suddenly when we try to provide them in the form of an acting DON, the applicant talks about creating a serious staffing issue and that the person isn’t suitably qualified.
PN1026
We would submit that what is a better structure to offer nurses in the hospital career opportunities? An entrenched five day a week DON that sits in each hospital five days of the week? Or a director of nursing that moves in and out as required and offers them the opportunity to act up in the director of nursing role, and gain experience and qualifications and a taste, if you like, for leadership.
PN1027
THE DEPUTY PRESIDENT: Instead of being four director of nursing jobs there is one, I guess is the difference.
PN1028
MS COLLIER: Well there is one position in each hospital.
PN1029
THE DEPUTY PRESIDENT: Doesn’t that affect career prospects? You see, instead of having four jobs to aim for the nurses in these hospitals - sorry, having three jobs to aim for, the nurses in these three hospitals have only one to aim for so there is a limitation on their career prospects, isn’t there?
PN1030
MS COLLIER: Well instead of going from being a nurse manager or what you would call a nurse unit manager to a director of nursing, there’s an extra step in there. Nurse unit manager, acting director of nursing, and then director of nursing/state manager. The reason for a structure is that they are small hospitals and it does not suit the way that the hospitals are. As I said, they previously competed against each other and having three separate directors of nursing, full time, seemed to entrench that competition against each other and isolation.
PN1031
Having the one director of nursing across all three sites, and treating all three hospitals as separate campuses of the one organisation, has worked already fairly well. As I said we are in the early stages however it is not a proposal, it is a structure that is in place.
PN1032
The applicant refers to the regulations and I won’t refer to them because I haven’t put anything in evidence, but I will say what I have said in my responses. That is that the Department of Human Services is the body that governs those regulations and that is a matter for them, and that our licence relies upon us satisfying that government department. That is a matter that we see for them.
PN1033
THE DEPUTY PRESIDENT: Yes, but it may form part of the industrial context which I have regard to in the event of an ambiguity being found to exist.
PN1034
MS COLLIER: Absolutely and as I have said earlier, your Honour, we are at a disadvantage with the timeline. If you were to name a date in three weeks’ time I could provide you with written evidence of my assertion earlier, but I’m unable to provide that because these matters have happened in the last 48 hours.
PN1035
THE DEPUTY PRESIDENT: What matters have happened in the last 48 hours?
PN1036
MS COLLIER: The matters of the approval of the Department of Human Services of our structure.
PN1037
THE DEPUTY PRESIDENT: Well just bear with me, Mr Gardner had better listen to this.
PN1038
Did you hear all of that, Mr Gardner? I saw you otherwise occupied.
PN1039
MR GARDNER: I’m sorry, I was dealing with something else your Honour and I apologise for that.
PN1040
THE DEPUTY PRESIDENT: She has just said that she has just had something approved by somebody.
PN1041
MR GARDNER: Well that, I think, your Honour, was I suspect exactly the same point to which objection was taken before and we maintain that objection.
PN1042
MS COLLIER: As I have said, your Honour, we are at a disadvantage because of the date of today’s hearing. If you were to name a date in the future - - -
PN1043
THE DEPUTY PRESIDENT: Are you seeking an adjournment, are you? I mean, I can only act in your - you are here today to put what submissions you see as suitable and for your client.
PN1044
MS COLLIER: I’m an employee of the organisation.
PN1045
THE DEPUTY PRESIDENT: You know, I’m not - sorry?
PN1046
MS COLLIER: Sorry. I’m an employee of the organisation. I’m not a lawyer.
PN1047
THE DEPUTY PRESIDENT: Well, you know, I’m in your hands. If you wish to make a procedural application that’s a mater for you. You will have to put it, and Mr Gardner will have to respond or have an opportunity to respond, and then I will rule on it.
PN1048
But if you don’t put any procedural application, we will proceed on the basis of the procedure we established by consent on the last occasion, all right? Do you understand that?
PN1049
MS COLLIER: I do but I have not put in a procedure application before - - -
PN1050
THE DEPUTY PRESIDENT: No, no, you are on your feet now. I’m just trying to understand what you are saying. Are you proposing that we adjourn for a month?
PN1051
MS COLLIER: Your Honour I am proposing that we adjourn for a month.
PN1052
THE DEPUTY PRESIDENT: Why are you proposing that?
PN1053
MS COLLIER: Because the regulations that are referred to by the applicant are regulated by the Department of Human Services. We have had ongoing discourse with them and recently have received information by way of approval. However because of the timelines - - -
PN1054
THE DEPUTY PRESIDENT: Yes, how is that going to have a bearing on the interpretation of clause 28 of the agreement, which seems to be the key clause?
PN1055
MS COLLIER: Clause 28 of the agreement says that we - - -
PN1056
THE DEPUTY PRESIDENT: You see, just let me - - -
PN1057
MS COLLIER: Yes.
PN1058
THE DEPUTY PRESIDENT: Just imagine for a minute the department says you have complied with the regulations, okay?
PN1059
MS COLLIER: Yes.
PN1060
THE DEPUTY PRESIDENT: At its highest, that’s what they may do or may not do. How does that help me determine what clause 28 means? You see, they are alleging you haven’t appointed a director of nursing at each hospital. That’s what they say, I think.
PN1061
MS COLLIER: Well your Honour we have appointed a director of nursing at each hospital and it’s in our material.
PN1062
THE DEPUTY PRESIDENT: Well no, no, just let me finish. I’m just trying to work out how the issue of the approval or otherwise of the relevant department about the regulations is of any relevance. I’m not enforcing the regulations.
PN1063
MS COLLIER: I understand that. In our material - - -
PN1064
THE DEPUTY PRESIDENT: I’m enforcing - well I’m seeking to determine an allegation of breach of clause 28 of the agreement.
PN1065
MS COLLIER: Look, you are right. I mean, clearly if it seems to us that it all comes down to an interpretation of the wording in clause 28, the clause says it agrees to appoint a director of nursing. It doesn’t say whether it’s full time or part-time. It just says a director of nursing at each hospital and I’m saying a director of nursing has been appointed at each hospital.
PN1066
The applicant has raised the issue of the regulations and I’m saying that those regulations are a matter for the government department. I’m also saying that that government department has approved it, but I cannot submit that today as evidence because the approval has been so recent. But if you were to name a date in about three weeks’ time I probably could prove that.
PN1067
However, you are right, it does come back to an interpretation of clause 28. The applicant has suggested to me in our discussions that we call the person, rather than acting director of nursing in the absence of the director of nursing, simply director of nursing and not acting director of nursing. Then we would have no dispute.
PN1068
I would like to explain why we won’t do this. One is we need one leader. We can’t have two leaders and the hospital staff need one person to look up to as the director of nursing. We can’t really have two people that are the director of nursing. So we have a director of nursing and an acting - - -
PN1069
THE DEPUTY PRESIDENT: Well under your proposal you are going to have two people. You are going to have someone who is there one point five to two days a week at each hospital.
PN1070
MS COLLIER: Yes.
PN1071
THE DEPUTY PRESIDENT: Then you are going to have someone who is going to step into his or her shoes and acts up.
PN1072
MS COLLIER: Yes, and they may be the same person - - -
PN1073
THE DEPUTY PRESIDENT: As director of nursing.
PN1074
MS COLLIER: Or a different person.
PN1075
THE DEPUTY PRESIDENT: The same person?
PN1076
MS COLLIER: It may be the same person that acts up all the time or it may be a different person who acts up.
PN1077
THE DEPUTY PRESIDENT: You may rotate through the senior nursing staff?
PN1078
MS COLLIER: We may, to give them career opportunities and advancement, yes.
PN1079
THE DEPUTY PRESIDENT: All right.
PN1080
MS COLLIER: I wouldn’t say in such a small facility that it’s terribly likely that we are going to have hordes of people.
PN1081
THE DEPUTY PRESIDENT: No.
PN1082
MS COLLIER: But I am saying that it’s not always going to be the same person, because as people move through their career and their working life they move up through the ranks.
PN1083
Your Honour, clause 29 simply says that we must appoint a director of nursing at each hospital. It doesn’t say whether it’s full time or part-time. The award requires the presence of a DON on all morning shifts. Presumably when the DON is absent an acting DON fills their shoes. It’s not possible to have - - -
PN1084
THE DEPUTY PRESIDENT: Well that’s an interesting question. Isn’t there an argument that the acting role is one for - I mean, there are various clauses in the award and agreement which may support this. I think there’s a clause in the award relating to weekends, for example.
PN1085
MS COLLIER: That's right, on the weekends - - -
PN1086
THE DEPUTY PRESIDENT: Does acting within - it’s not a phrase used in the award or agreement, is it?
PN1087
MS COLLIER: It’s a phrase that’s used commonly.
PN1088
THE DEPUTY PRESIDENT: No, no, I know that, but is it a clause phrase? Is there a clause of the award that says acting means, or anything of that sort?
PN1089
MS COLLIER: The clause that you would be referring to would be higher duties.
PN1090
THE DEPUTY PRESIDENT: Yes.
PN1091
MS COLLIER: People have turned that into using the word acting, but it’s simply higher duties. It simply means that when people perform a function that they are paid according to the function that they have performed.
PN1092
THE DEPUTY PRESIDENT: That's right. It’s not actually an appointment, is it?
PN1093
MS COLLIER: It’s not a permanent appointment and that’s why people call it acting.
PN1094
THE DEPUTY PRESIDENT: Go on.
PN1095
MS COLLIER: The applicant has put in our discussions the scenario to us that we should have people called director of nursing in each hospital that make up five days a week. It doesn’t matter if it’s two people doing a job share or so on and so forth, but that on five days of the week someone is called a DON and that the person that we now have as the DON could be called an executive DON.
PN1096
THE DEPUTY PRESIDENT: Just let me get this straight. On your interpretation of clause 28 it would be enough if the Victorian regional manager was appointed as director of nursing for 10 minutes a week at each hospital, wouldn’t it, then the rest acting? That would be enough to satisfy clause 28 in your view wouldn’t it? I think it would. So you would say he or she is part-time for 10 minutes or an hour or a day, or any period really, at each of the three and the rest of it is acting, and that’s sufficient for clause 28. Isn’t that right, on your interpretation?
PN1097
MS COLLIER: Well, your Honour, there’s a difference between presence and capability and performing duties and performing functions. The director of nursing does not carry a clinical load; they do not see patients. Their function is an executive function. I’m working today but I’m not at IPHOA or any one of their facilities yet I’m working for them.
PN1098
Our director of nursing could be anywhere at any time. She could be at any meeting or facility, doing anything, but at the end of the day she is the director of nursing and she is responsible under various obligations that she has.
PN1099
Industry standards - for instance your Honour, in some facilities, a facility with 400 beds will have the one director of nursing. Our three facilities combined have 110 beds. So what that they are in different suburbs? So what? We have cars, we have mobile phones, we have emails, we have faxes. We submit that a director of nursing can fulfil their function even when they’re not on site.
PN1100
However, in order to qualify the requirements of the award, when the director of nursing is absent an acting director of nursing will perform the day-to-day functions of the director of nursing.
PN1101
THE DEPUTY PRESIDENT: Just a minute. What would prevent you - and I’m just curious - appointing a part-time director of nursing for each of the three?
PN1102
MS COLLIER: Well technically she is part-time for each of the three.
PN1103
THE DEPUTY PRESIDENT: No, no, just let me finish. So there’s a practical matter the ANF may not - I mean, I might be wrong on this, it may not have an objection to that course of action. So for example you have, you say, the two days or one point five; you could have a regional manager appointed as director part-time for those days, sharing with another one who is appointed for two days or two point five or three. You see, there’s less objection - - -
PN1104
MS COLLIER: No, because there are global responsibilities and accountabilities that are essential.
PN1105
THE DEPUTY PRESIDENT: So it’s incompatible with your management structure?
PN1106
MS COLLIER: That's correct. It is absolutely essential that one person takes the responsibility for the financial and legal - financial performance of the three facilities; that they run them as one business unit that’s profitable and viable; and the one person is also responsible for the legal requirements of the department, and so on and so forth, that we have heard about.
PN1107
We have had before a full time director of nursing in each facility, topped by a state person, and the three facilities competed against each other. It didn’t work. It didn’t get along. In the interests of running the organisation for a profit and running it efficiently and running it according to the way we want to run it, we have introduced this structure.
PN1108
Now you may ask why we don’t just do what the ANF want and I’ll tell you why, your Honour. We inherited the agreement. We are in the process of replacing the agreement and the agreement won’t have this clause and we won’t be having the next agreement with the ANF, it will be directly with - - -
PN1109
THE DEPUTY PRESIDENT: When does the agreement expire?
PN1110
MS COLLIER: The agreement has expired some time ago and we are in a bargaining period with our staff, directly with our staff. We intend to replace the agreement without this clause and certainly the ANF won’t be a party, and things are well on the track towards that aim.
PN1111
So if you are wondering why we are even bothering to be here, and simply put our case, that is why. It is because it was an inherited agreement. It’s expired. We intend to replace it and move on and move forward.
PN1112
THE DEPUTY PRESIDENT: There is a lot of evidence from the bar table but it hasn’t been objected to so I will have regard to it.
PN1113
MR GARDNER: Your Honour, can I say I will be objecting to it. I was going to do it in reply rather than continually interrupt my friend, if that course is convenient?
PN1114
THE DEPUTY PRESIDENT: I don’t know how to deal with this. I mean, Ms Collier, I can’t accept any evidence from the bar table that is objected to. It will be as if you had not spoken about those matters. You can give sworn evidence or procedurally ask that you give sworn evidence now of all those matters you want to give evidence about.
PN1115
MS COLLIER: No, your Honour.
PN1116
THE DEPUTY PRESIDENT: That’s an option for you. Do you want to do that or not?
PN1117
MS COLLIER: No, your Honour. We have very little - - -
PN1118
THE DEPUTY PRESIDENT: No, no. It’s your choice.
PN1119
MS COLLIER: Thank you.
PN1120
THE DEPUTY PRESIDENT: Just so you understand, that will mean that all the evidence from the bar table that you have given, that Mr Gardner objects to, I will have no regard to it. Do you understand that?
PN1121
MS COLLIER: Yes I do, your Honour.
PN1122
THE DEPUTY PRESIDENT: Right, well don’t give any more evidence from the bar table that is of the same character, unless you wish to give sworn evidence, because it will be met with the same response from Mr Gardner you see.
PN1123
MS COLLIER: Thank you your Honour. As I’ve said to you, we are at a disadvantage because things move along and happen as
a course of day-to-
day - - -
PN1124
THE DEPUTY PRESIDENT: Well, you have made a procedural application and Mr Gardner will respond to it. I don’t know how he will respond, but we will see.
PN1125
MS COLLIER: Your Honour I have very, very little to say. I realise we will be sitting for another hour or several more and going through oodles of material. At the end of the day it seems to us very, very simple. It all comes down to an interpretation of clause 28. It says we agree to appoint a director of nursing.
PN1126
We have submitted in our submission that we have and we have made our position clear. We oppose the orders for the reason given and we have nothing more to add to this, other than we thank you for your time and we thank Mr Gardner for his time and we await to hear his reply.
PN1127
THE DEPUTY PRESIDENT: All right. Thank you. Mr Gardner, I think there is a procedural application of some form.
PN1128
MR GARDNER: Yes, can I deal with the application for an adjournment first.
PN1129
MS COLLIER: I’ve withdrawn that.
PN1130
THE DEPUTY PRESIDENT: Sorry, you have withdrawn that?
PN1131
MS COLLIER: I’m sorry. I thought I made that clear that I wasn’t - - -
PN1132
THE DEPUTY PRESIDENT: No, no, I wasn’t clear. So you are withdrawing your procedural application?
PN1133
MS COLLIER: Yes. Yes.
PN1134
THE DEPUTY PRESIDENT: So I will proceed to hear and determine the matter today.
PN1135
MS COLLIER: Yes.
PN1136
THE DEPUTY PRESIDENT: Thank you. Now you have that, Mr Gardner? It’s withdrawn.
PN1137
MR GARDNER: Thank you your Honour. My friend made a number of submissions to the effect that there was in place a particular arrangement. Your Honour, that may be relevant to your exercise of discretion and we reject that evidence from the bar table.
PN1138
THE DEPUTY PRESIDENT: All right, so I can’t have regard to it then.
PN1139
MR GARDNER: That's right your Honour, and the reason we say that is not just for being cussed. We’ve provided to you a copy of an advertisement recently in the papers that seems to be - well, it is a senior nurse manager position. It’s difficult for us to accept without evidence that there is in place this structure about which there has been discussion. So can I just - - -
PN1140
THE DEPUTY PRESIDENT: All right. Is the advertisement different to the claimed structure today, is it?
PN1141
MR GARDNER: Well, it’s not - - -
PN1142
THE DEPUTY PRESIDENT: Or may be?
PN1143
MR GARDNER: - - - clear, your Honour, because you would see that there’s a reference in that advertisement, in the more detailed parts of it - well there are two aspects to it. One is that much of it does reflect director of nursing type duties, but there’s also a reference to it being a nursing unit manager position. I will just show that to your Honour.
PN1144
THE DEPUTY PRESIDENT: Which is what? A grade 6 or something is it?
PN1145
MR GARDNER: It’s not DON. We are not told what the classification is going to be but there is a reference to it in that material. So for that reason, not just to be difficult, we object to that.
PN1146
The next point, your Honour, is that Ms Collier referred to there being the state manager DON position and then in her absence an acting director of nursing position. That person will work as the replacement and that acting DON will be paid or classified. There’s the slip, your Honour. Paid or classified. There is just a complete reluctance from my friend to really address and come to grips with - there’s no evidence, but even in her submissions she doesn’t come to grips with the issue that really is between the parties.
PN1147
There’s a submission made about the facilities operating as one unit and in having worked in competition, despite the fact that they are many, many miles apart. We object to that from the bar table.
PN1148
THE DEPUTY PRESIDENT: So all that evidence about the economic reasons for the approach they are taking is evidence from the bar table which I must disregard; is that what you are saying?
PN1149
MR GARDNER: Yes your Honour. Again for good reason. There’s a geographic proposition here. One could take notice of the fact that they are miles and miles apart. It’s difficult to see the nature of the competition that is alleged. Again, I’m not being cussed.
PN1150
THE DEPUTY PRESIDENT: No, I understand your position fully, Mr Gardner. One thing does trouble me. I would always prefer if agreements and awards can be interpreted in the manner which is consistent with competition, efficiency and viability of the private sector. But I understand your position. Go on.
PN1151
MR GARDNER: Your Honour, in the course of her submissions my friend also made a couple of observations that underscore the difficulty that we apprehended. The first was that this state-wide director of nursing might be more than five days a week or might be in Canberra or might be somewhere else. It underscores the point that an acting position, as they would have it, is not a substantive position. If someone is away for five days the suggestion that someone is acting, rotatingly acting - - -
PN1152
THE DEPUTY PRESIDENT: It could be 10 minutes in each hospital for all I know.
PN1153
MR GARDNER: It could, your Honour.
PN1154
THE DEPUTY PRESIDENT: I mean, to push it to an extreme.
PN1155
MR GARDNER: Yes.
PN1156
THE DEPUTY PRESIDENT: I can’t see how that - - -
PN1157
MR GARDNER: It illustrates the absurdity of a construction as advanced by the respondent for what is about a simpler clause in a certified agreement as you could get.
PN1158
The other suggestion was that there would be a career structure available by way of appointment to nurse unit manager, acting DON and then state manager DON. Again, it’s the middle one, nursing unit manager. It’s submitted that acting DON is a position and then state manager DON. The problem is that the acting DON is not proposed to be classified as a substantive position.
PN1159
THE DEPUTY PRESIDENT: I think it was made clear that the acting would not be appointed as such.
PN1160
MR GARDNER: Exactly, your Honour, and therein lies the difficulty in compliance with clause 28 of the agreement.
PN1161
THE DEPUTY PRESIDENT: I suppose that raises one practical issue which is in evidence, which I think I will have to disregard. It was stated that this agreement is going to be replaced by one - are you - - -
PN1162
MR GARDNER: I’m coming to that, your Honour. I am coming to that, your Honour.
PN1163
MS COLLIER: I beg your pardon your Honour, may I just interject, and I apologise. Your comment about acting and not appointed. Appointed as the acting DON[sic].
PN1164
THE DEPUTY PRESIDENT: All right, thank you.
PN1165
MS COLLIER: Thank you.
PN1166
THE DEPUTY PRESIDENT: Go on Mr Gardner.
PN1167
MR GARDNER: But not classified in accordance with the award.
PN1168
MS COLLIER: No - yes classified. I beg your pardon.
PN1169
THE DEPUTY PRESIDENT: Mr Gardner has - - -
PN1170
MS COLLIER: Appointed as an acting DON, paid according to what you’re supposed to be paid and classified as the acting DON under the award. Not walking around with a sign around your neck saying, “I am the acting DON for the next two days” but simply the DON is absent, somebody is appointed, “Excuse me, madam you are the acting DON for the next two days”. They are paid what an acting DON is paid and they perform the duties that are required and they are appointed for that time.
PN1171
THE DEPUTY PRESIDENT: All right.
PN1172
MS COLLIER: Thank you.
PN1173
THE DEPUTY PRESIDENT: Ms Collier you have had your go.
PN1174
MS COLLIER: Thank you.
PN1175
THE DEPUTY PRESIDENT: We really have to let Mr Gardner do his reply without interruption, all right?
PN1176
MS COLLIER: Thank you your Honour.
PN1177
THE DEPUTY PRESIDENT: Thank you. Go on Mr Gardner.
PN1178
MR GARDNER: We just draw attention to the provisions of the award and the certified agreement that require classification, in accordance with the classification structure in the award.
PN1179
The observations that fell from the bench during Ms Collier’s submissions in relation to the acting role, we adopt particular attention to the award clause related to higher duties and the distinction drawn between that and this notion of acting.
PN1180
We take issue with and reject the suggestion that the director of nursing position -and the evidence from the bar table - could be performed by way of phone, fax and the like. Your Honour I’m going to provide your Honour - I’ll provide it to my friend first. It is nothing more than a submission and I emphasise that it is only a submission.
PN1181
THE DEPUTY PRESIDENT: This is in reply, is it?
PN1182
MR GARDNER: Yes your Honour.
PN1183
THE DEPUTY PRESIDENT: To which point?
PN1184
MR GARDNER: It’s in reply to the proposition that the duties of the director of nursing can be performed and fulfilled by someone who isn’t there; the references to performing duties by fax, by phone and email and the like. This is a list, by way of submission only, of the typical week of a director of nursing and the areas of ongoing responsibility.
PN1185
THE DEPUTY PRESIDENT: All right. Are you tendering this?
PN1186
MR GARDNER: I tender it, your Honour, but again it’s properly part of our submissions.
PN1187
THE DEPUTY PRESIDENT: Sure. What are we up to? That will be exhibit ANF5. Any objection? No?
PN1188
MS COLLIER: Yes I object to it.
PN1189
THE DEPUTY PRESIDENT: On what basis?
PN1190
MS COLLIER: I’ve never received it before.
PN1191
THE DEPUTY PRESIDENT: He says it’s just a submission in reply.
PN1192
THE COMMISSIONER: It appears to have come from Ms Jenny King who is now no longer part of this matter.
PN1193
THE DEPUTY PRESIDENT: Do you maintain your objection or do you accept it?
PN1194
MS COLLIER: I apologise your Honour. I will just reserve my right to speak to it, if possible.
PN1195
THE DEPUTY PRESIDENT: All right, so you will reply to it?
PN1196
MS COLLIER: Thank you.
PN1197
THE DEPUTY PRESIDENT: That’s what you seek to do. Okay, I will admit it then on that basis. You don’t have a problem with her replying to it?
MR GARDNER: No your Honour.
EXHIBIT #ANF5 DOCUMENT HEADED DIRECTOR OF NURSING ISSUES: A TYPICAL WEEK
PN1199
MR GARDNER: I say no more about it than this, that it illustrates what in our submission is the impossibility of a remote controlled director of nursing function. We expressly reject and object to the submission that the industry standards that operate are consistent with what is proposed. We expressly reject and object to the submission that the proposal or the scheme advanced qualifies and meets the award requirements.
PN1200
I have already objected to the material relating to financial performance. My friend made submissions about their being a replacement agreement and that there was a bargaining period in place in relation to employee staff; and that there would be a replacement agreement and that the ANF would not be a party to it and it would not contain a clause relating to a director of nursing.
PN1201
We object to each of those submissions. We submit that it is, in the absence of evidence, able to be tested. The Commission simply could not rely on that material. It is material that might well weigh in the Commission’s mind as a matter of discretion as to whether to make an order or not. We think it unlikely but in circumstances where my client simply rejects those submissions.
PN1202
Your Honour, as to the - - -
PN1203
THE DEPUTY PRESIDENT: I guess as a practical matter, I think what I interpreted it in part as saying that it may be a pyrrhic victory if you are successful. But that’s a practical matter, not necessarily relevant to determination of a matter.
PN1204
MR GARDNER: Exactly. Yes, and who knows?
PN1205
THE DEPUTY PRESIDENT: I have no idea.
PN1206
MR GARDNER: I have no idea and there’s no evidence before the Commission in relation to it.
PN1207
Your Honour, what was perhaps the most telling part of my friend’s submissions was her failure to respond to your Honour’s question about her objections to the orders we propose. An objection was taken; she said, “We don’t agree with paragraph - - -
PN1208
THE DEPUTY PRESIDENT: One.
PN1209
MR GARDNER: But your Honour, she got to her feet in the course of my reply and it would seem now wants to agree. Certainly for our part we are unable to identify any coherent basis upon which objection is taken to the orders we propose, as I have amended them.
PN1210
Your Honour, we submit that the respondent is not under any disadvantage. These proceedings have been scheduled in accordance with an agreement between the parties. The respondent’s own submissions say that the question of the compliance with the regulations is not a matter for the Commission. Paragraph 5 of their submissions actually eschew any basis upon which the Commission should be doing it, so it’s hard for them to be now heard to be saying that they are suffering some disadvantage. We of course do refer to the presence of the regulations for the purposes of construction. But that’s the context in which we put it. Unless there are any questions, those are our submissions, your Honour.
PN1211
THE DEPUTY PRESIDENT: Thanks. Ms Collier, you wanted to respond to exhibit ANF5?
PN1212
MS COLLIER: Yes, your Honour.
PN1213
THE DEPUTY PRESIDENT: You don’t have to but feel free to.
PN1214
MS COLLIER: Yes, your Honour, I do wish to respond. Just to clarify a point and I do wish to respond to that latest point about the objection to the orders. I will clarify that as well, if that’s agreeable.
PN1215
Your Honour, we are not suggesting that the duties are going to be done by remote control or should be done by remote control. Some of these duties need to be done when the person is on site and some of them can be done when the person is off site. The point we are making is that someone does not have to be at the site all the time to have the responsibility.
PN1216
Secondly, with regard to our objection to the order. I’m sorry, I have not made myself clear, your Honour. We do oppose the orders. We oppose that the order, specifically the words full time, in 9.1:
PN1217
The respondent, pursuant to clause 29 of the agreement establish and fill by appointment a director of nursing at each of the Essendon, Malvern and Mount District Private Hospitals - - -
PN1218
THE DEPUTY PRESIDENT: You missed a few words:
PN1219
…which was a full time position classified as director of nursing.
PN1220
MS COLLIER: “Classified as”. I don’t have a problem with. Sorry, I didn’t write that down earlier.
PN1221
THE DEPUTY PRESIDENT: I’ll read it again. Just wait.
PN1222
That the respondent pursuant to clause 28 of the agreement establish and fill by appointment a full time position classified as director of nursing at each of the hospitals.
PN1223
MS COLLIER: Yes, well you see, your Honour, this is where the devil is in the detail and again in the wording. It makes it incredibly difficult to actually work out how one does that. We could say that that is already in place. A position, establish a position. We are not an organisation that has positions with position numbers attached to them. We are a private sector organisation and it’s a little bit difficult to interpret and understand how we practically apply it in the workplace.
PN1224
THE DEPUTY PRESIDENT: Paragraph 2 says, “Each of the three positions”. So that clarifies it a bit. There are three of them, okay?
PN1225
MS COLLIER: That's right, and I guess if paragraph 3 of the orders said that, “To avoid uncertainty part-time or acting appointments may be made to fill each full time position”, we would be very satisfied.
PN1226
THE DEPUTY PRESIDENT: Right, so if we added those words you could accept those four orders?
PN1227
MS COLLIER: Absolutely. Absolutely.
PN1228
THE DEPUTY PRESIDENT: All right.
PN1229
MS COLLIER: We would have no problem. If point 3 said that:
PN1230
To avoid uncertainty part-time or acting appointments may be made
PN1231
That is perfect for us because there must be a DON on five days a week.
PN1232
THE DEPUTY PRESIDENT: All right.
PN1233
MS COLLIER: If the DON is away for five days of the week, then we can put somebody in acting for those five days or a part-timer, or a full timer who may be acting.
PN1234
THE DEPUTY PRESIDENT: All right, thanks.
PN1235
MS COLLIER: Thank you.
PN1236
THE DEPUTY PRESIDENT: Sorry, Mr Gardner, you have an opportunity to respond to the reply to the reply to the reply.
PN1237
MR GARDNER: Yes, very briefly, your Honour. We oppose the proposed amendment to the orders.
PN1238
THE DEPUTY PRESIDENT: Okay.
PN1239
MR GARDNER: Can we say also that my friend, in opposing the orders, manifestly failed to tell your Honour why they are inconsistent with clause 38.
PN1240
THE DEPUTY PRESIDENT: All right.
PN1241
MR GARDNER: 28.
PN1242
THE DEPUTY PRESIDENT: 28.
PN1243
MR GARDNER: I’ll get it right at last.
PN1244
THE DEPUTY PRESIDENT: All right.
PN1245
MR GARDNER: Those are the submissions, your Honour.
PN1246
THE DEPUTY PRESIDENT: Thank you very much for those submissions. I will have regard to them. I will publish a decision as soon as I can, however I advise the parties that unfortunately pressure of business may delay it to some extent. But nevertheless it will be as soon as possible. So thank you very much.
PN1247
MS COLLIER: Thank you.
PN1248
THE DEPUTY PRESIDENT: Thank you.
<ADJOURNED INDEFINITELY [12.28PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #ANF1 WITNESS STATEMENT OF BARRY MEGENNIS PN495
EXHIBIT #ANF 2 WITNESS STATEMENT OF CATHERINE HUTCHINGS PN496
EXHIBIT #ANF3 OUTLINE OF SUBMISSIONS OF THE AUSTRALIAN NURSING FEDERATION PN497
EXHIBIT #ANF4 REPLY OF THE AUSTRALIAN NURSING FEDERATION PN498
EXHIBIT #IPHA1 OUTLINE OF SUBMISSIONS IN RESPONSE TO APPLICANT’S SUBMISSION PN499
EXHIBIT #ANF5 DOCUMENT HEADED DIRECTOR OF NURSING ISSUES: A TYPICAL WEEK PN1198
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2008/257.html