Capital Territory Health Commission v Hedley Gordon Rowe & Judith Adella Cooney [1982] FCA 106

These two appeals from decisions of Keely 2. have been heare together. The issue invclved in eacn of tirem is wheth=2 a particular student nurse enrolled atcither tie Wo. a) Canbera Hospital or the Woden vailey Hospital was ai

relevant times entitled to be paid the weekly rate prescribed

by the Hospital Employees Etc. (Nursing Staff A.C.T.) Award

1980 ("the Award") for a student nurse. The resolution of

that issue depends upon whether the relevant student nurse was an employee of the appellant, Capital Territory Heaith Commission ("the Commission") which, inter alia, conducts the Royal Canberra Hospital, the Woden Valley Hospital and the Allambee Nursing Home. The student nurse involved in the first appeal, A.C.T. No. 2 of 1982, is Miss Simms who was a student under & two year supernumerary general nursing course. The student nurse involved in the second appeal, A.C.f. No. 3 of 1982, is Miss Pfeiffer, who was a student under a subsequent three year supernumerary general nuraAing

Mr. Justice Keely at the first instance concluded that each of Miss Simms and Miss Pfeiffer was an employee of the Commission. As a consequence, he held that each was entitled to be paid the prescribed rate for a student nucse under the Award. There was a clear failure by the Commission to pay them that prescribed rate. It followed, so his Honour found, that the Commission had, in each matter, been guilty of a breach of the Award. His Honour imposed, pursuant to tne provisions of s.119 of the Conciliation and Arbitration

It has been submitted on behalf of the Commission that no contract at all existed between the Commission of the one part or either of the student nurses' of the other. Alternatively, it was submitted that, if such a contract did exist, the relevant student nurse was under no contractual obligation to perform any work or services for the Commission. The relationship between the Commission and each student nurse was, so it was said, the relationship of educator or teacher and student. The activities of the student nurses in the wards should be seen as involving no more than part of the teaching and learning process and, specifically, as not involving any relationship of service

Subject to two matters which are of but limited significance to the ultimate outcome and to which we subsequently make specific reference, the conclusion which we have reached is that tne attack on the judgment and decision of Keely J. has not been made good in either appeal. In our view, there was plainly a contractual relationship, involving mutual rights and obligations, between the Commission and the student nurse in each matter. We are unpersuaded that his Honour fell into any error in his detailed statement of the particular work in the wards performed by Miss Simms and Miss Pfeiffer and of the facts and circumstances providing the context in which that work was performed. We agree, for

the reasons he gave, with his Honour's conclusion that the

consequence of his findings of fact was that each of the student nurses was an employee of the Commission entitled to

be paid the rate prescribed for a student nurse by the Award.

The first of the two particular matters which we have mentioned is that, in the course of his judgment, his

«ee. the granting of a scholarship - 2s distinct from training for employees - for two cr three years to student nurses who are undec no obligation to work for the ... commission after their compleiion of their course is not authorised by any the heads of power."

contained in the Health Commission Ordinance 1975. As at

present advised, we do not agree with his Honour's view in that regard. It is, however, unnecessary that we decide che question since we consider that, even if his Honour were mistaken on that point, the validity of the essential reasoning of his judgment and of the ultimate conclusion

"Miss Simms and Miss Pfeiffer were both employees of the Commission by reason of their contractual obligavion to perform their duties of giving general nursing care to patients in the hospital wards, Allambee Nursing Home and other places."

His Honour's reference to "their contractual obligation to perform their duties" needs to be read in the context of the whole judgment. It should not be read as involving a finding that either student nurse was an employee of the Commission by reason merely of the written terms and conditions which the student nurse had signed, or that the question whether the relationship of employer or employee exists fell, in the present matters, to be determined merely by reference to an arid identification of pre-existing contractual obligations. The work of the two student nurses in the wards was performed under the contract which existed between the Commission and the relevant student nurse. The relationship of service between the Commission and the student nurse in each case was more the result of the acting out of the relevant contract by the performance cf that work than the result of any pre-existing contractual obligation to perform it. As Keely J. pointed out, the Court was entitled and required, in the present matters, to pay regard to the overall circumstances in determining the true relationship of the parties. In particular, it was entitled to pay regard to the nature and extent of the work actually performed by the relevant student nurse and the circumstances and control in and under which it

was performed. So much, at least, is made clear by what was

said by the High Court in R. v. Foster; Ex parte The

Commonwealth Life (Amalgamated) Assurance Limited (1952) 85

C.uU.R. 138 and by the Privy Council in A.M.P. Society v.

Allan (1978) 52 A.L.J.R. 407. We would add that we do not consider that anything said by the Privy Council in the

A.M.P. Society case, supra, undermines or detracts from the

following comments of the Chief Justice of the Supreme Court

of South Australia, Bray C.J., in that case (R. v. Allan; Ex

parte Australian Mutual Provident Society (1968) 16 S.A.S.R.

"There is, of course, no doubt that the Society has done its best to make the contract a contract for services or a contract of agency, not a contract of service. The booklet says specifically that the relationship between the parties is that of principal and agent and not that of master and servant. This might be of extreme importance, perhaps even in some cases of decisive importance, if it were purely a question of the private relationship of the parties inter se. But any such express declaration cannot bind third parties, nor can it be decisive of the question of the category into which the relationship falls for the purpose of fiscal statutes or statutes of social, economic or industrial regulation where questions of legislative policy are involved: Ready Nixed Concrete (South Rast) Ltd. v. Minister of Pensions and National Insurance (1968) 2 Q.B. 497; Ferguson v. dohn Dawson & Partners(Contractors) Ltd. (1976) 1 W.L.R. 1213. An employer cannot be allowed to opt out of the provisions of statutes like the Workmen's Compensation Act or the Payroll Tax Assessment Act by the simple expedient of entering into contracts with his workmen an which they admit that they are independent contractors or agents and not servants. The parties are free to enter into a contract of service or not as they please; but they cannot escape statutory regulation of contracts of service by entering into such a

Where, as in the present matters, éxamination of the overall circumstances discloses that, within the context of her nursing course, the relevant student nurse was performing work for the Commission in a relationship of service, the fact that the written terms and conditions which they signed wece consistent with a mere student relationship does not preclude the conclusion that the work performed by

the student nurse was performed by her as an employee.

In reply, senior counsel for the Commissicn Submitted that the fact that the two student nurses were required to obtain some practical experience in the wards to satisfy the educational requirements of the A.C.T. Nursing Regulations (Regulations 7, 15 and 16) prevented the implication of a contract or of a relationship of employee and employer which would commonly result from the rendering of service, under control and supervision, by one party to another. We are conscious of the force of this submission. As we have indicated however, we are of the view that the relationship between the Commission and each student nurse was, from the outset, contractual. That contract way well have been terminable at will by the student nurse. While it subsisted however, the work in the wards was done under it. The fact that the doing of much of the work may be seen as a step in the process of gaining a qualification is relevant to whether or not a relationship of employec and employce

existed, That fact does not however, necessarily preclude

the conclusion that the work in the wards done under the contract between the Commission and the particular student nurse was of such a nature and done in such circumstances as to lead to a finding that it was done as an employee of the Commission. As we have said, we consider that the conclusion by Keely J. that at relevant times each student nurse was working in the wards as an employee of the Commission was correct in the particular circumstances of the

Senior counsel for the Commission argued that the trial Judge was wrong in law in admitting into evidence or Placing weight upon certain material relating to courses prior to the two supernumerary courses involved in the appeals. We agree that little assistance was to be gained from that material. In our view however, it cannot be said that his Honour was in error in admitting it into evidence. Nor; upon a proper reading of his Honour's judgment, can it

It should be stressed that the decision in each of the present matters is based on the nature and extent of the work performed by the relevant student nurse and the circumstances surrounding the performance of that work. Those circumstances iaclude the contractual relationship between the Commission and student nurse, the fact that the

work was performed under that contractual relationship, the

fact that that work, as Keely J. found, constituted part of the services which the Commission provided to its patients and the financial payments which the Commission was, while the contractual relationship subsisted, obliged to make to the student nurse. It would be a mistake to regard the decision in the present matters as being necessarily relevant to the position of those receiving practical training for other occupations or to the position of student nurses in Gifferent situations; for example, obtaining practical experience at a hospital as part cf their course of training at an independent nursing college. Wer should the decision in the present matters be seen as involving any view that che rate prescribed by the Award for a student nurse is appropriate for the particular position of a student nursc, eniolled in one of the relevant courses, who has reached the stage where she is performing work, in a relationship of Service, for the Commission. To the contrary, 1t would seem that variations to the Award are desirable to take account of the particular position of student nurses involved in

was pages are a tree copy of the Rensons for Judgreut hecem of the