T12788
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Nursing Federation Tasmanian Branch and The Minister administering the State Service Act 2000/Department of Health and Human Services
Industrial dispute - the alleged breach of a registered agreement - jurisdiction - staffing levels - rostering - appointments - order issued REASONS FOR DECISION [1] On 7 September 2006, the Australian Nursing Federation Tasmanian Branch, (the applicant) (ANF), applied to the President, pursuant to s29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister administering the State Service Act 2000/Department of Health and Human Services (the respondent) arising out of the alleged breach of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2005 (the agreement). [2] The application concerns three hospitals: the Launceston General Hospital, Department of Emergency Medicine; the North West Regional Hospital, Medical Ward; and the Royal Hobart Hospital, Orthopaedic Ward. [3] This decision is confined to the dispute in relation to the Department of Emergency Medicine (DEM) at the Launceston General Hospital (LGH). [4] The part of the application dealt with in this decision is a claim that 8.14 full-time equivalent (FTE) positions of shift coordinators in the LGH DEM have not been filled. The applicant claims that failure to do so is in breach of the agreement and is seeking orders that staff be rostered so as to meet the staffing levels required under the terms of the agreement. [5] A hearing commenced in Hobart on Friday 29 September 2006. Ms N Ellis and Ms C Saint appeared for the applicant. Ms J Cox appeared for the respondent. The first day of proceedings took the form of a conciliation conference which resulted in a strong recommendation being issued by the Commission dated 2 October 2006, which said in respect of the LGH:
[6] The hearing resumed on Friday 27 October 2006. Appearing on that day were Ms Ellis and Ms S Darcey for the ANF. Ms Cox and Dr S Ayre, the Chief Executive Officer of the LGH, appeared for the respondent. The dispute remained unresolved. [7] A further hearing was set down for 10 November 2006 to consider a draft order to be prepared by the applicant in relation to the dispute at the LGH. On that date Mr E White for the applicant and Mr P Turner for the respondent sought and were granted leave to appear. BACKGROUND [8] The dispute concerns staffing levels that allegedly breach the terms of a consent order which is Schedule 2 (the schedule) of the agreement registered in the Commission with an operative date of 1 January 2006. [9] Clause 14 of the agreement provides:
[10] The schedule sets out the duty of the employer to "prevent sustained unreasonable workload" and the duty to "allocate and roster nurses in accordance with process consistent with reasonable workload principles". It outlines an agreed staffing model known as Nursing Hours per Patient Day (NHPPD), which includes a benchmarking process, consultation, monitoring, and, at clause 6, a grievance procedure. [11] The Grievance Procedure provides:
[12] Consistent with the agreement, a specialist panel met and made recommendations regarding the LGH DEM. The Director of Nursing wrote the following letter, dated 28 June 2006 to the Chief Executive Officer of the LGH.
[13] The first recommendation has been complied with. The second recommendation and the recommendation for the temporary increase of 8.14 FTE positions have not. [14] Consistent with Step 3 of the Grievance Procedure the CEO wrote to the Deputy Secretary informing him that the Step 2 phase of the Grievance Procedure had failed to achieve a resolution. [15] The temporary positions were implemented but only for a very short time and did not continue because of funding issues. There are currently no shift coordinators as are required under the NHPPD model. [16] There has been no resolution and the matter is now before the Commission pursuant to Step 4 of the Grievance Procedure. [17] Following the recommendation issued by the Commission on 2 October 2006 the ANF met with the CEO but an agreed position in relation to the recommendations of the Specialist Panel was unable to be achieved. [18] The model requires that once the number of patient presentations in an emergency department exceeds 30,000 per year then a shift coordinator is to be appointed for each shift. The duty to prevent sustained unreasonable workload has been breached, according to the applicant. [19] The position of the Department of Health and Human Services is that, consistent with directions from the Minister for Heath and Human Services, hospitals are to work within their budgets. Hospitals should be staffed according to clinical needs, but that must happen within the allocated budget. Dr Ayre advised the Commission that if there were an order of compliance with the agreement there would be budgetary difficulties at the LGH. [20] The order sought by the ANF reads:
THE EVIDENCE The Applicant [21] Evidence presented by the applicant showed that in May 2004 there was a report concerning the implementation of the Nursing Hours per Patient Day model.3 The formula in that model was applied to the patient presentation figures of 2004 at the LGH DEM and showed a requirement for 37.28 FTE. The presentation figures in 2004 were below 30,000. There was a further report in October 2005, showing a full-time equivalent staffing requirement at the LGH DEM of 41.13 FTE. [22] A graph prepared from the respondent's material shows that since 2004 there has been an increase from 76 to in excess of 90 daily attendances from January in 2004 to January in 2006.4 [23] There are longer patient stays.5 The LGH DEM Daily Access Block record shows that the number of patients who spend more than eight hours in the department is increasing and has exceeded the previous peak in August 2003.6 [24] The average patient hours per day has increased from about 260 hours in September 2004 to 460 hours per day in September 2006.7 [25] There has been an increase in long stay patients, with more than one patient per day staying more than 24 hours in the DEM.8 [26] There has been an increase in acuity, as recorded in page 16 of the Department of Emergency Medicine Review. [27] In the model, when the number of patient presentations exceeds 30,000 per year then there is to be a full-time shift coordinator for each shift, which equates to 8.14 FTE, making a total of 49.27 FTE nurses required under the agreed model in order to provide a safe and sustainable workload. [28] A roster for the LGH DEM for the period 5 November 2006 to 2 December 2006 shows that the roster ranged from 37.32 FTE nurses to 38.42 FTE, less than the 49.27 FTE required according to the formula. [29] Dr Ayre wrote to the ANF on 7 November 2006. He said:
[30] A press release from the Minister for Health and Human Services, dated 30 October 2006, said:
Witness Evidence - Dianna Morrison [31] Ms Morrison testified that she is a registered nurse who works as Team Leader in charge at nights at the LGH DEM. She works mainly in triage and resuscitation. [32] Her evidence was that not all positions on the DEM roster are filled and there is a shortfall on a daily basis, even before taking account of sick leave. [33] She said that it was the practice to fill the shortfall with experienced DEM nurses so experienced nurses are contacted to come in on their days off. If the gaps can't be filled that way, then they try to get casual workers from the pool. [34] Ms Morrison's evidence was that the DEM sometimes operated with one nurse short. Every week nurses work a double shift. She said a double shift meant that:
[35] Ms Morrison gave an example of what it was like to work a double shift. She said that on her late shift she was busy, but was able to take a tea break and go to the toilet. She stayed on and worked the night shift as well and because she was the only one there that could triage and who had resuscitation skills she was unable to leave the department; she could not get off the floor, not even for five minutes. That was for ten hours after already working the late shift. [36] Ms Morrison testified that she had been in the emergency department for ten years and she has noticed that morale is going down, people are stressed and the tension is high. Recently a colleague had been in tears because she had 15 patients and she could not look after them all, she was not even able to do observations of the patients. The next day she did not come to work. Many nurses are talking of resigning. She is aware of a number who have resigned. A lot had given up emergency nursing and were working in other areas. [37] She said that the patients are not getting the care that they are meant to receive. As a result, they are becoming disgruntled and abusive.
[38] Ms Morrison testified that there had been an increase in violence and abuse directed at them, with the public saying things such as: "you don't care any more." [39] She said that a shift coordinator would keep things flowing and would reduce access block, ensure that observations are done, improve skill levels of inexperienced nurses and check patient care. [40] Ms Morrison's evidence was that nurses are redeployed to the DEM but not out of it. Redeployment from other areas did not happen often because there is a high need for staff on the wards. When nurses are redeployed they maintain their existing classification. There is a generic position description. The Respondent [41] No evidence was presented by the respondent. SUBMISSIONS - Jurisdiction The Applicant [42] Mr White, for the applicant, submitted that workload issues are an industrial matter. They pertain to the relations of employers and employees. The employer is in breach of an industrial agreement, which of itself makes this dispute an industrial matter. [43] Clause 14 of the agreement and the schedule deal with workload matters. The schedule creates a mandatory obligation to prevent sustained, unreasonable workloads and to roster nurses in accordance with reasonable workload principles [44] The respondent has contended that the dispute is not an industrial matter because the remedy sought would require the employment or redeployment of staff and appointments are excluded from the definition of industrial matters. Mr White, however, submitted that "appointments" are only excluded in particular circumstances, for example where there is a dispute about appointments within and from existing employees. In the case of Jan Saarinen v University of Tasmania (1997) 7 Tas R 154 (Saarinen) which concerned an employee who was not reappointed to a position, Cox CJ in a minority judgement said:
[45] The key point, Mr White said, was that Ms Saarinen was seeking an appointment outside of an already established relationship and not an appointment within an existing framework therefore it was not an excluded matter. The majority adopted the same reasoning even though they disagreed with the outcome; Wright J said:
[46] In Mr White's submission, the Justices are at one in defining that it is only internal appointments that are excluded from the definition of "industrial matter". The difference between the minority and the majority was the characterisation of Ms Saarinen's position, that is, whether the dispute arose from a new position or from an existing position, which was the majority view. [47] Mr White said that whilst the exclusion only relates to internal appointments the Commission would fall into error if it characterised the dispute as a dispute about appointments. It is not, it is about workloads and their sustainability, or otherwise. The applicant is not concerned with the means by which the workload issue is resolved. [48] In any event, the applicant contends, the Commission should not conflate jurisdiction with remedy. If the order sought requires a prohibited appointment that is different to whether there is jurisdiction relating to an industrial dispute. A dispute about a cow can be settled by an order about a horse. In National Tertiary Education Industry Union v University of Wollongong (2003) 123 IR, the Full Bench of the Australian Industrial Relations commission said at paragraph 21:
[49] Justice Slicer in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (2004) TASSC 142 (Blue Ribbon) distinguishes between jurisdiction and power. The source of the power is in s31(1). Mr White submitted that it is a two-step process and should not be conflated. The proposition that there is no dispute because the draft order relates to the employment of new staff and not to the relations between employees and employers is an egregious example of conflating jurisdiction with power. The dispute is about existing staff and their workload. The Respondent [50] Mr Turner, for the respondent, agreed that the nature of the relief does not govern the jurisdiction, but said that the nature of the relief sought informs as to what the dispute is about. The order sought would require the employment of more staff. The only way the draft order can be applied is by either employing more nurses, or redeploying them from other areas. Redeploying nurses from other areas would be changing the terms and conditions of their employment and would effectively appoint them to new positions. [51] Mr Turner submitted that employment of staff is not within the definition of an industrial dispute in the Act. It does not relate to relations between employers and employees. Even if that is not the case, employing someone outside of a subsisting employment relationship is an "appointment" which is excluded from the definition of "industrial matter". "Appointment" includes an engagement. Mr Turner submitted that there was no need to include "engagement" in the legislation because the word "appointment" necessarily connotes engagement. [52] Cox CJ in Saarinen said that engagement was the act of creating the employment relationship and appointment was something that occurred during the course of employment. In the majority decision their Honours saw no need to draw such a distinction. Underwood J said that the issues all related to the appointment of the appellant and were not industrial matters. Mr Turner said that the provision in the Act says: "relating to" appointments so it is not confined to appointing a person to a position. [53] The Act has limited and specific provisions concerning reinstatement and re-employment, which supports the contention that there is no general power to order an employer to employ. [54] Mr Turner said that it does not matter that there is a registered agreement about staffing levels or that there has been a breach of that agreement because, if it is about appointments, it is not an industrial matter. If the agreement complies with contract law then it can be enforced in another jurisdiction; authority for that is The Queen v Tasmanian Industrial Commission ex parte Kenneth James Farrell (2002) TASSC. [55] Mr Turner referred to Australian Education Union v Victoria (1995) 184 CLR at 232 where the High Court said that the government of a State had the right to determine the number and identity of the people it wished to employ or dismiss on redundancy grounds. Whilst that was a constitutional argument, the principle that the executive government has the power to determine who and how many it shall employ is fundamental. [56] He also submitted that executive government cannot spend funds without the proper appropriation therefore no court or tribunal is able to make an order that the State employ extra people. SUBMISSIONS -Merit The Applicant [57] Mr White submitted that the figures show that there is a very serious workload issue including incapacity to roster the number of staff to provide a safe and sustainable workloads. [58] By clause 14 of the agreement the parties agreed that they would comply with a consent order made in the Australian Industrial Relations Commission, which became Schedule 2 of the agreement in the Tasmanian Industrial Commission. The industrial regulation of public sector nurses was transferred to the state jurisdiction. Schedule 2 contains mandatory obligations imposed on the employer. [59] Clause 1 sets out the duty to prevent sustained unreasonable workload. There is a mandatory duty to roster nurses consistent with reasonable workload principles. Clause 2 sets out the duty to allocate and roster nurses in accordance with reasonable workload principles and sets out what those principles are. [60] The means by which the obligations are to be met are by the implementation of a model described in Appendix 2 to Schedule 2. [61] The respondent has not said that any of Ms Morrison's evidence was wrong. It has not said that the schedule is not a mechanism for establishing reasonable workloads. It has not said that any of the evidence presented by way of graphs was wrong. It has not challenged the number of patient presentations at the LGH DEM. It has not said that working double shift is a safe work practice. [62] Mr White submitted that the uncontested evidence was that the government is relying on the goodwill, hard work and unsafe work practices by nurses to provide nursing care at the LCH DEM. [63] The agreement is a recent one, the formula is not out of date, and there is uncontested evidence that the workloads are intolerable and unsustainable. [64] The remedy to the situation is to apply the model to a changing situation. Schedule 2 deals with workload issues in a realistic and meaningful fashion. The order sought is reasonable and fair. The Respondent [65] The respondent made no submissions as to the merits of the case, other than to say that it was up to the Launceston General Hospital to manage and work within its budget. FINDINGS - Jurisdiction Jurisdiction and Powers [66] The respondent submitted that because the remedy sought would require the employment or redeployment of staff then the dispute is not about an industrial matter, because "appointments" are excluded from the definition of industrial matter. The applicant has argued that jurisdiction should not be conflated with remedy. I agree with the applicant that the two should not be treated as one. First, jurisdiction must be established, and then, after considering the merits of the case, a remedy may or may not be ordered. The remedy ordered may or may not be the remedy sought. The draft order proposed by the applicant, even if granted, may or may not have the effect of requiring employment or redeployment in order to be capable of effect. That would be an administrative matter with which the Commission is not concerned. [67] The Commission has broad powers in respect of the orders that it can issue in settlement of an industrial dispute. The powers of the Commission are different from the jurisdiction of the Commission. The Commission is empowered by s31 to settle a dispute by the issuing of orders:
[68] In Blue Ribbon Crawford J said in the lead decision at paragraph 33:
[69] And at paragraph 44
[70] For the reasons given above, I reject the submission that the remedy sought puts the matter beyond jurisdiction. Industrial Matter - Breach of Agreement [71] The application is made pursuant to s29(1) and is an application about the alleged breach of an agreement. A breach of a registered agreement is an "industrial matter" as defined. The Commission has jurisdiction to hear and determine a dispute about an industrial matter. [72] The real question to be determined is whether or not the terms of the agreement that are sought to be enforced deal with an industrial matter. That is, whether rostering and staffing levels are industrial matters. If they are not, then there is no jurisdiction and that part of the agreement entered into between the parties has no effect, at least insofar as this jurisdiction is concerned. [73] Section 19 of the Act confers jurisdiction on the Commission:
[74] "Industrial matter" is defined at s3 - Interpretation.
[75] The duty of the employer to prevent sustained unreasonable workloads and the duty to allocate and roster nurses in accordance with process consistent with reasonable workload practices is provided for in Schedule 2 of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2005. The agreement was made pursuant to s55 of the Act, between the ANF and the Minister administering the State Service Act 2000. An agreement in similar terms had previously been certified by the Australian Industrial Relations Commission. That agreement was set aside and the industrial regulation of public sector nurses in Tasmania is now a matter for this Commission. At the hearing of the application for approval of the agreement, the ANF submitted that the Commission was empowered to make the agreement under s55 of the Act.
[76] Section 55 of the Act provides:
[77] The respondent attended that hearing and supported the application for the making of the agreement. Clearly, the parties to the agreement considered staffing levels and rostering to be industrial matters at the time the agreement was made. That does not, of itself, make a matter an industrial matter if it is not. [78] Schedule 2 contains a grievance procedure that provides a role for the Commission in settling disputes through conciliation or arbitration specifically in relation to disputes such as this one. The grievance procedure is concerned with disputes about rostering and workloads. The parties agreed that disputes of this nature should be settled in this Commission. As a general proposition, parties should be bound by agreements they have entered into, which, I acknowledge, is a different question to the question of jurisdiction. [79] The purpose of schedule 2 of the agreement is to prevent sustained unreasonable workloads. It confers such a duty on the employer. Sustained unreasonable workloads directly impact on employees and industrial tribunals have intervened to prevent unreasonable workloads being imposed on employees. Staffing and rostering issues are matters that pertain to the relations of employers and employees and are industrial matters. They concern the mode, terms and conditions of employment. [80] Staffing levels and rostering issues are not necessarily connected with appointments. How staffing levels are maintained, and how rosters are drawn up, are administrative matters. It may be that part of a strategy to maintain safe and sustainable workloads could include recruitment or redeployment, but not necessarily. I observe that the application of the NHPPD model could equally result in a situation where there is a reduction in staff requirements, making nursing staff redundant, which most decidedly is an industrial matter. [81] I find that the NHPPD model contained in the agreement is a matter pertaining to the relations between employers and employees and relates to the mode, terms and conditions of employment. [82] However, a matter can be a matter relating pertaining to the relations between employers and employees but not be a matter capable of being dealt with by the Commission because of the exclusion provisions at s3. Appointments and Promotions [83] The respondent submitted that the dispute is not an industrial matter because it concerns appointments and "appointments, or promotions, other than in respect of the qualifications for advancement" are excluded from the definition of "industrial matter" in the Act. [84] I am not sure that the NHPPD model can be characterised as relating to "appointments", given that it deals with sustainable workloads and staffing and rostering levels. Nonetheless, I shall deal with the question of "appointments since it has been raised. There is some ambiguity around the term "appointments" in the context of s3 of the Act. [85] The Supreme Court considered the question in Saarinen, which case concerned an employee who was not reappointed to position when a fixed term contract came to an end. [86] In a minority decision Cox CJ said:
[87] In the majority decision, Underwood J said:
[88] In the Hansard record of debate of 10 April 1984 (not 1994 as was said in Saarinen) the Minister is recorded as saying:
[89] I observe that the exclusion as to appointments and promotions does not appear to apply in other industrial jurisdictions. In my experience, some very long bows have been drawn in arguments as to what the exclusion means. I incline to the view that the intention of Parliament was to exclude from the Commission's jurisdiction appeals by individuals who had unsuccessfully applied for appointments or promotions. This is supported by the fact that the public sector "mechanism of appeal and decision in respect of appointments and promotions" referred to by the Minister is explicit in limiting appeals against appointments and promotions to appeals by existing employees who were applicants for the positions to which the appointment or promotion relates. [90] Even if it is not the case that the exclusion was only intended to relate to disputes by persons aggrieved at not being appointed or promoted, it is my view that the exclusion is only intended to apply to employees already employed by the employer. Their Honours in Saarinen, as argued by the applicant, are agreed that the exclusion relates to appointments and promotions within an already subsisting employment relationship. [91] Wright J referred to "an intention to exclude from the jurisdiction of a Commissioner disputes within an employer's work force with respect to persons who may be appointed or promoted to various positions in the workplace...". (my emphasis) [92] Cox CJ said that engagement is something that is separate to appointment, and is the initial act of creating the employment relationship. The respondent submitted that "appointment" includes "engagement". That is not the view advanced by His Honour, who said of engagements and appointments: "it follows that the latter were regarded as something distinct from the former." He said, in effect, that appointments concerned new responsibilities in an already existing employment relationship. [93] In my opinion the exclusion of "appointments and promotions" relates only to the exclusion of appointments and promotions within an already existing employment relationship. "Appointment" involves being appointed to a position with new and different duties, tasks and responsibilities. There are, of course, other circumstances within an existing employment relationship, such as disputes in relation to demotion or to breaches of award in respect of incorrect classification, where the Commission would have jurisdiction. [94] The respondent submitted that redeployment of nurses from one area of the hospital to another would be changing the terms and conditions of their employment and would be effectively appointing them to a new position. I reject that argument. A transfer from one part of a worksite to another does not necessarily involve new and different responsibilities, and therefore does not of itself create a new appointment. If, as I understand it, there is a generic position description for a nurse at a particular classification level and that nurse moves from ward to ward within a hospital within the same classification level, then that does not create a new appointment each time the nurse changes the place in which they perform their work. [95] In respect of the argument advanced by the respondent to the effect that the State has the right to determine the number and identity of the people it wishes to employ, that is true, it is up to the employer how they give effect to the order sought, if it is issued. That is an administrative matter. Similarly with the argument in respect of the appropriation of funds; how the staffing levels provided for in the formula set out in schedule 2 of the agreement are achieved and funded are matters for the employer to determine. [96] The respondent's submission that the engagement or appointment of an employee is not an industrial matter because it does not pertain to the relations of employers and employees is irrelevant for the reasons given above, even if it were correct. The outcome of such disputes would very much depend upon the facts and circumstances of a particular case. [97] I find that the Commission has jurisdiction to hear and determine the matter. Merit [98] The uncontested evidence shows that clause 14 of the Nurses (Tasmania Public Sector) Enterprise Agreement 2005 has been breached. That clause requires the model set out in Schedule 2 to be applied, that is, the Nursing Hours per Patient Day model. The evidence clearly shows that the model has not been complied with. I find that the respondent has breached the agreement in this respect. [99] The schedule to the agreement sets out the duties of the respondent to prevent sustained unreasonable workload and to allocate and roster nurses in accordance with reasonable workload principles. The unchallenged evidence shows that there are sustained unreasonable workloads for the nurses in the Department of Emergency Medicine at the Launceston General Hospital and I so find. The unchallenged evidence also shows that the duty to allocate and roster nurses in accordance with reasonable workload principles has not been observed, and I so find. [100] The respondent presented no evidence and does not appear to dispute the fact of the breach of agreement, relying instead on jurisdictional arguments to the effect that the Commission does not have jurisdiction to deal with the matter. For the reasons given earlier, I have rejected those jurisdictional arguments and have found that the Commission does have jurisdiction and I have decided to issue the order sought by the applicant, excepting insofar as the timing is concerned. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in settlement of that part of matter No. T12788 of 2006 that refers to the Department of Emergency Medicine at the Launceston General Hospital: (1) THAT the Minister administering the State Service Act 2000 by himself, his servants, employees and agents including the Launceston General Hospital and its Director of Nursing maintain rostering of nursing staff in the Department of Emergency Medicine such as to prevent sustained unreasonable workloads and to ensure reasonable workload principles are applied by: (a) Rostering nursing staff so as to meet the benchmarked staffing levels assessed as necessary under the Nursing Hours Per Patient Day Model for the Department of Emergency Medicine by the Department of Emergency Medicine Review (February 2006) and the Specialist Panel Recommendations of 28 June 2006 and consistently with the level of anticipated presentations utilised by the review for the calendar year concerned; (b) Rostering nursing staff so as to meet the benchmarked staffing levels referred to in paragraph (a) on the basis of 30,000 presentations per calendar year for 2006 and 2007 pending the publication of revised estimates by the Director of Emergency Services; and (c) Complying with paragraphs (a) and (b) above without rostering nursing staff for unreasonable overtime, double shifts or extra shifts outside the ordinary roster pattern. (2) THAT this Order shall commence on 10 January 2007. The file will remain open in respect of the disputes concerning the Medical Ward at the North West Regional Hospital and the Orthopaedic Ward at the Royal Hobart Hospital. P C Shelley Appearances: Dr S Ayre of the Launceston General Hospital on 27 October 2006 Date and place of hearing: 1 Exhibit A3
|