New South Wales Nurses and Midwives’ Association v State of NSW

1. [1]

   This is the hearing of three separate questions, to be determined prior to the trial in the proceedings. The proceedings commenced by statement of claim filed 15 March 2023 seeking a large number of declarations that the defendant contravened cl 53 s II(d) of the Public Health System Nurses’ and Midwives’ (State) Award 2018, and the same provisions of the 2019, 2021 and 2022 Awards, by failing to meet the requirement for 6.0 Nursing Hours per Patient Day (NHPPD). The statement of claim also seeks orders that the defendant pay civil penalties in respect of the contraventions pursuant to s 357(1) of the Industrial Relations Act 1996 (NSW) (“IRC Act”).

2. [2]

   The defendant admits that, on a large number of occasions, it failed to achieve 6.0 NHPPD, but denies that it contravened cl 53 s II(d) of the Awards. The defendant says that its obligation is to provide for the 6.0 NHPPD by rostering to achieve that outcome. The issue is, therefore, whether cl 53 s II(d) sets a minimum staffing level that must be met at the rostering stage or at the stage of the hours being actually worked. Associated with that is the question of how the NHPPD are calculated.

3. [3]

   The parties seek answers to separate questions which concern the proper construction of cl 53 s II(d).

4. [4]

   The separate questions are these:

5. [5]

   Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) deals with separate questions. It provides:

6. [6]

   The hearing of these questions came before me somewhat irregularly. The parties appear to have agreed that the separate questions being determined before any trial was the most efficient way of proceeding. Accordingly, they submitted what was called a “Consent Order” to the Registrar at a directions hearing. The Registrar appears to have made the order, noting a submission that the determination of the separate questions may reduce or resolve the issues for determination in the substantive trial.

7. [7]

   A decision under r 28.2 is not part of the powers delegated to the Registrar under s 13 of the Civil Procedure Act 2005 (NSW). Ordinarily, a Registrar may make orders by consent, but r 28.2 does not involve consent jurisdiction: see, for example, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [87]-[92] and [95] and Idoport Pty Ltd & Anor v National Australia Bank Limited & 8 Ors [2000] NSWSC 1215 at [7]-[8].

8. [8]

   Although the Registrar did not have the power to make the order, s 121(4) of the Supreme Court Act 1970 (NSW) means that the order has effect as an order of the Court notwithstanding that it was not within the power of the Registrar to make it.

9. [9]

   Having now heard full argument on the separate questions, I consider that the matter is an appropriate one for the making of an order under r 28.2 If question 1 is answered adversely to the plaintiff, that will be the end of the proceedings. If answered adversely to the State, admissions have been made which make it likely that all that will be left is the question of civil penalties.

Agreed Facts

1. [10]

   The parties agreed the following facts for determination of the separate questions:

2. [11]

   It is not necessary to reproduce the annexures referred to in the Agreed Facts. It is sufficient to note that cl 5.1 of the Memorandum of Understanding (“MOU”) provided that the parties agreed that the new Award would include a new cl 53 “Staffing Arrangements”, and cl 5.2 provided:

The Award

1. [12]

   Relevant portions of cl 53 in the 2022 Award are as follows:

Principles of construing awards

1. [13]

   In Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241; [2005] HCA 10, Kirby J said at [96]:

2. [14]

   In Kucks v CSR Ltd (1966) 66 IR 182 Madgwick J also said in a passage following that quoted by Kirby J:

3. [15]

   The parties largely agree on principles concerning the approach to construing awards. Those principles may be summarised as follows:

4. [16]

   However, the search is not for the actual subjective intent of the makers of the instrument: rather, the process of construction must direct attention to the words that are actually used. Expressed intention is to be gathered from the text of the instrument in light of context and purpose. There are limits on the extent to which the resolution of questions of construction may be driven by reference to history and context: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122], [128]-[130]; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 at [115], [127]-[128].

Questions 1 & 2

1. [17]

   The parties agreed that these two questions were closely connected. They need to be considered together.

2. [18]

   The plaintiff submitted that the language of cl 53 is mandatory in its terms and consistent only with the NHPPD figures specified being minimum staffing levels that must be met. Attention was drawn to such parts of the clause that provided “responsibility to provide reasonable workload for nurses”, that nursing hour awards and units “will be determined by the…NHPPD specified below”, that the principles “shall be applied”, that the hours could be distributed across the day and week, “provided the applicable NHPPD is achieved over the week” and that the staffing arrangements when reviewed required agreement to amend.

3. [19]

   The plaintiff pointed to a number of matters in the award to submit that NHPPD thresholds are intended to be binding and enforceable. These include (a) that the function of the NHPPD levels set out in s II(d) to (j) is “to determine the number of nurses required to provide direct clinical care”; (b) the provision that enables the staffing arrangements and their application to be reviewed and amended from time to time by agreement; (c) the statutory context provided by the IR Act and the nature of the Award as an industrial instrument.

4. [20]

   The plaintiff submitted that the statutory context provided by the IR Act, and the nature of the Award as an industrial instrument indicates its provisions are intended to be binding and enforceable. Industrial instruments are regulated by the IR Act and are intended to be capable of enforcement, including by the imposition of pecuniary penalties in the event of contravention. The nature of an award is to set minimum entitlements.

5. [21]

   The plaintiff submitted that the industrial history and context in which cl 53, and its historical equivalents were made supports the conclusion that NHPPD standards imposed by cl 53(iv) of the Award were intended to be binding and enforceable. The parties proposed a very significant change to the Award in 2011 as a result of extensive and lengthy negotiations, with the most important changes concerning the provisions dealing with staffing arrangements and nursing workload. The changes involved agreement that staffing would be determined on the NHPPD basis, calculated over a week. The parties sought to introduce minimum staffing requirements in addition to general staffing and workload principles.

6. [22]

   The plaintiff submitted that the method by which the provision of NHPPD over a period of a week can be assessed is explained in s II par (s). Reliance was placed on what counsel for the State said at the hearing in the Industrial Relations Commission (“IRC”) when this award was first put into its present form, and on the fact that counsel for the plaintiff did not disagree with the State’s explanation.

7. [23]

   The plaintiff submitted that par (n) was the measure to be used by the parties when first implementing the new system.

8. [24]

   The plaintiff submitted that the Court would not construe the Award such that the defendant can fail to comply with minimum staffing provisions which were set by the parties, on many occasions without a contravention of the Award arising.

9. [25]

   The defendant submitted that the textual framework of the award supports the conclusion that cl 53(iv) s II only requires that the defendant rosters nurses in accordance with the specified NHPPD based on historical patient numbers and then takes rectification action if required on a spot check. The defendant submitted that the award does not require the specified NHPPD be provided on what actually happened over the course of a week. Five reasons were put forward for this submission.

10. [26]

    First, there is no express requirement in cl 53(iv) s II or anywhere else in the Award that the specified NHPPD must actually be provided at the conclusion of a week. If that was intended it would have been straightforward for the requirement to be set out in that way.

11. [27]

    Secondly, the key operative requirement in s II(c) (“staffing will be determined”) is expressed in the future continuous tense, and that connotes a process or decision rather than a result or outcome. The language is apt to describe planning or deciding a number of nurses prospectively, which is done by rostering.

12. [28]

    Thirdly, the manner of “distributing” NHPPD is described in s II(o) as being distribution “in a rostering pattern”. That reflects the example tables appearing below s II(l), which are expressed as examples of a “roster pattern” in which nursing hours have been distributed to achieve NHPPD. That construction is supported by the proviso to s II(o) and also s II(n).

13. [29]

    Fourthly, cl 53(iv) s II(q) contains express mechanisms for dealing with adjustments to nursing hours for operational reasons, but these do not refer to NHPPD. The absence of reference to NHPPD in these provisions indicates that operational or on-shift adjustments are separate from the obligation to provide NHPPD, consistent with the view that that obligation operates only at the earlier rostering stage.

14. [30]

    Fifthly, the fact that cl 53(iv) s II contains an explicit mechanism for identifying and responding to circumstances where NHPPD are not actually met (the “spot check” methodology) is inconsistent with the defendant having a direct obligation to ensure NHPPD are actually met.

Consideration

1. [31]

   The difference between the parties on the construction of the award was that the defendant submitted that the requirement to satisfy the threshold of 6.0 NHPPD was directed to the rostering arrangements with the spot check arrangement found in pars (r) and (s) employed at the instigation of any nurse on the ward or member of the Local Reasonable Workload Committee, whereas the plaintiff said the requirement must be satisfied in the actual way the NHPPD were being provided. On the plaintiff’s view, that required some form of continuous checking using the spot check provisions.

2. [32]

   The plaintiff’s submissions about the mandatory nature of what the Award was stipulating (eg cl 53 (i), (ii) and (iii)) may be accepted. However, given the nature of the dispute between the parties, reliance on those paragraphs is question-begging. The issue is not that reasonable workloads are required, but how that is to be achieved. In that regard, question 1 is not well-drafted by asking whether the Defendant would be in breach of the Award if it “did not provide at least 6.0 NHPPD”. Clause 53(ii) makes clear that the defendant has a responsibility “to provide reasonable workloads”, which are for this purpose 6.0 NHPPD. The issue is how that provision is to be made, whether by rostering or by actual results on a daily or weekly basis

3. [33]

   In my opinion, the defendant’s position is the correct one. A reading of cl 53 as a whole points strongly to the conclusion that the award seeks to achieve the reasonable workloads by a proper rostering arrangement along with the facility for monitoring by reason of the spot check in pars (r) and (s). My reasons are these.

4. [34]

   In the first place, I accept the defendant’s submission that s II par (c) is forward-looking language concerned with rostering to give effect to the reasonable workloads constituted by the agreed NHPPD.

5. [35]

   Secondly, the focus of ss I and II is rostering. Section I concerns unplanned absences. Such an absence requires an immediate review of the roster to determine the effect of the absence “on workload”.

6. [36]

   Section II pars (n), (o), (p), and (q) all emphasise the centrality of rostering in relation to the achievement of the appropriate NHPPD. The plaintiff’s submission that par (n) is effectively only used when the new staffing arrangements are put in place should be rejected. Given the terms of par (k), which makes specific reference to the time when the new staffing levels are introduced, par (n) would have no work or almost no work to do if it was confined to the outset of the new staffing level arrangement. The difference in language between pars (k) and (n) is of some assistance in construing (n) as not being confined to the introduction of the new arrangements.

7. [37]

   Further, if, as the plaintiff submits, compliance with the terms of the award relates to actual staff numbers, historical averages provided for in par (n) would not be relevant. Nor could historical averages simply be used as a guide. The wording of par (n) is that the historical figures “will be used to determine the number of patients”. That wording may be compared with s IV par (c) which reads:

8. [38]

   It is significant in that regard that par (n) appears in s II in the position it does, and its wording may be contrasted with what appears in par (k) (“at the time the new staffing levels referred to s II, sub-cl (d)-(j) above are introduced on award or unit for the first time, …”). The wording in par (n) is not confined to the introduction of the new staffing levels but is clearly concerned with the ongoing implementation of the nursing hours.

9. [39]

   Paragraph (q) is important, because it deals with what happens on an actual shift and provides for what can be done to ensure that the reasonable workloads are met when, absent those adjustments, they might not be met. That presupposes that the appropriate arrangements had previously been made on the assumption that the planned or rostered nurses had been available. That again focuses on rostering.

10. [40]

    Further, that the requirements relating to NHPPD are focused on rostering is reinforced by the example Tables under par (l) which make express reference to “this roster pattern”.

11. [41]

    Thirdly, it is significant that the spot check provided for in par (r) is only able to be implemented if a nurse working on the ward or a member of the local Reasonable Workload Committee makes a written request for such a spot check. That a written request is required for the spot check to be engaged is also consistent with the requirement of the Award in relation to NHPPD being concerned with rostering. It is a protective and/or an enforcement measure enabling any nurse immediately affected to have checked what has been put in place to achieve the NHPPD for the ward concerned. It presupposes, however, that there is already some purported compliance with the requirements of the award. In that way it supports the defendant’s construction of the award.

12. [42]

    In the absence of such a written request there is no mechanism for that spot check to take place. That strongly undermines the plaintiff’s submission that the NHPPD is to be achieved by the use of the spot check method on an ongoing basis. If the preparation of the roster is not the method to achieve the NHPPD, a vacuum exists for how that is to be done. The plaintiff did not explain how the spot check process could be engaged other than by the written requests identified.

13. [43]

    It may be observed that the spot-check method only results in a correction after the completion of the week which is being checked. It is at that time that action must immediately be taken to rectify the shortfall. It may be, as par (r) envisages, that a shortfall is only able to be detected after the four-week period provided in the spot check. Those matters tell against the plaintiff’s submission that cl 53 is concerned with breaches occurring by a shortfall in actual NHPPD as opposed to the rostering arrangement. The defendant would likely not know that a shortfall had occurred until after the week (or up to four weeks) when the bed census was calculated, with the result that it might constantly be in breach. Such an outcome could not have been intended.

14. [44]

    If, as the plaintiff submits, there is an ongoing obligation to monitor the actual position every week, the procedure set out on pars (r) and (s) would not be necessary. On the other hand, the combination of pars (q) and (r) enable compliance with NHPPD as a result of the rostering system being checked and adjusted as required.

15. [45]

    Fourthly, it does not seem to me that either the MOU or what appears on the transcript of the hearing in the IRC on 23 February 2011 is of any assistance in determining which of the competing approaches is the correct one. The MOU is expressed in more general terms than the award, as one would expect. It says nothing about how it would be decided that the matters in the MOU had been achieved or were to be achieved.

16. [46]

    The plaintiff said that the transcript of the hearing before the IRC was not put forward by it as a common understanding; rather, it was to explain the intent of the parties in their agreement. In the light of what was said in King v Melbourne Vicentre Swimming Club and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (above at [19]) I doubt that the transcript is admissible unless, possibly, where there is ambiguity in the terms of the award. I do not consider there is any ambiguity. The matters I have identified are, in combination, strong support for the defendant’s position.

17. [47]

    But even if the transcript is admissible, it does not seem to me that anything said to the IRC in outlining the terms of the award throws light one way or the other on the construction of cl 53. Despite the focus by counsel for the State on the dynamic situation of staffing and the spot check method (see at T 7), the focus of counsel for the present plaintiff was on the rostering system (see at T 11). In any event, for the reasons given, the spot check method cannot be construed as the default method of implementing the NHPPD arrangement. It can only occur when something else is in place, and a written request is made by the persons permitted to make it. That rather suggests that counsel for the State before the IRC misunderstood the way the spot check method worked.

18. [48]

    Finally, the construction put forward by the plaintiff is impractical and unworkable in the sense that breaches would be occurring without any party’s knowledge until after the event. It would require constant (ie daily) monitoring in an endeavour to ensure that breaches did not occur. Where civil penalties apply for a breach, that cannot have been intended by the parties.

19. [49]

    The defendant submitted, as an example of the difficulty that would result from the plaintiff’s construction, that if on the last day of the week it became apparent that there would be a shortfall in actual NHPPD based on actual patient numbers over the course of that week, more staff would be required in order to increase the weekly average, even if that staffing was unnecessary for that last day. Alternatively, patient beds would have to be closed for that day. I agree that this would be the required outcome to avoid a breach. Such an outcome cannot have been intended.

Conclusion

1. [50]

   In my opinion both questions 1 and 2 should be answered No. In those circumstances question 3 does not arise for consideration.

2. [51]

   The parties agreed that if question 1 was answered in the negative the proceedings should be dismissed.

3. [52]

   The parties agreed that the question of costs of the proceedings should be reserved to be argued or agreed at a later time.

4. [53]

   Accordingly:

   1. (1)

      I answer question 1, No.

   2. (2)

      I answer question 2, No.

   3. (3)

      It is not necessary to answer question 3.

   4. (4)

      I dismiss the proceedings.

   5. (5)

      I reserve the question of costs.