New South Wales Nurses and Midwives' Association v Crown in Right of the State of New South Wales

Issue to be determined 7The issue to be determined - and it is one essentially of award interpretation - is whether the role of HACU team leader constitutes day to day clinical management for the shift as those words are used in cl 12(v) of the Award, so as to attract the ICS Allowance and whether that role was delegated to Ms Pink and Ms White. Section 175 of the IR Act provides: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 8The applicant, of course, submitted Ms Pink and Ms White were delegated to perform the day to day clinical management role for the shifts in respect of which they were designated. The respondent's position regarding the claim was that at no material time did it require Ms Pink or Ms White to act in charge of the shift or to be responsible for the day to day clinical management for the shift. Further, that at all material times the only person with day to day clinical management role for the shift was the Nursing Unit Manager (NUM) of HACU, Mr Adrian Pink, and he did not delegate this responsibility to Ms Pink and Ms White, nor was any delegation of his responsibilities approved by the Nurse Executive of the Hospital to be delegated by Mr Pink, who is graded as Nursing Unit Manager Level 3, or NUM3.

For the applicant 9Three persons gave evidence for the applicant. These were Ms Pink, Ms White and Ms Stephanie Shean. Ms Shean was employed by the applicant from February 1983 until her retirement in November 2010. Her duties as Industrial Officer included maintenance of the Association's awards, representation of the Association in disputes, the provision of advice and representation for individual members before industrial tribunals and support and advice to the Association's organisers in their duties. 10Since 1992, Ms Shean had involvement in most negotiations relating to the Award and its predecessors. Ms Shean was the applicant's Industrial Officer with responsibility for the development of the claim and the preparation of evidence for Matter No IRC 3810 of 2000, in Public Hospital Nurses (State) Award [2002] NSWIRComm 100; (2002) 115 IR 183 ("Nurses' Conditions Case") the proceedings that resulted in the insertion of cl 12(v) in the Award. Ms Shean's evidence was directed mainly to the circumstances leading to insertion of cl 12(v) in the Award.

Ms Pink 11Ms Pink has been an RN since 1983 and midwife since 1985. Ms Pink has been employed in HACU since 2004. In a statement tendered in the proceedings, Ms Pink described HACU's role and staffing. There did not appear to be any issue about the description. 12HACU treats haematological patients with both malignant conditions such as leukaemia, lymphoma and multiple myeloma and non-malignant conditions, such as myelodysplasia, iron deficiency anaemia. Treatments include chemotherapy, blood product transfusion support and other intravenous therapies, eg; iron infusions and venesections. HACU also functions as an outpatient infusion unit for the whole hospital, delivering intravenous therapies for neurology, immunology, rheumatology, dermatology and renal medicine and gastroenterology as needed. 13Since about 2002, HACU has been co-located with the Medical Oncology Day Unit (MODU) and the Stem Cell Transplant/Apheresis Team on what is known as "Ground Floor East'. 14When co-location occurred in 2002, the previous arrangement where HACU and MODU were each managed by a NUM1 was changed so that a single NUM2 was in charge of all three units. In 2005, the NUM2 position was upgraded to a NUM3 position. 15The NUM3 is generally rostered on Ground East and is responsible for all three areas - HACU, MODU and the Stem Cell Transplant/Apheresis Team. The NUM has an office which is approximately 30 metres from HACU. 16HACU operates between the hours of 7.30am and 6.00pm, Monday to Friday. HACU nursing staff (other than the team leader) are rostered on in four staggered shifts, the first being from 7.30am to 4.00pm and the last being from 9.30am to 6.00pm. The HACU team leader ordinarily works 8.00am to 4.30pm. 17HACU is, and at all material times was, usually staffed by five RNs, one Enrolled Nurse and a team leader, although sometimes due to staff shortages this level is not achieved . The HACU nurses generally work in either two teams of three, or three teams of two. 18The HACU team leader role was created in about 2002 when the HACU NUM1 position was abolished. With the exception of certain limited matters which changed in 2012 the role has remained the same since that time. The applicant wrote to the respondent concerning the ICS Allowance on 30 March 2012, claiming payment for Ms Pink and Ms White. In about April 2012, changes were made to the team leader role by the respondent. In particular, Mr Pink took over responsibility for the initial allocation of staff to patients for the shift. The other change was that the team leader was required to report all admissions to the NUM3. 19Ms Pink described the role of the NUM3, held by Mr Pink (no relation). In particular, Ms Pink stated: 16. The NUM3 is responsible for the overall management of the three units being HACU, MODU, and the Stem cell transplant/Apheresis and bone marrow unit; 17. The NUM's responsibilities include attendance at weekly haematology meetings with haematology specialists, registrars, dieticians, social worker allied health professionals and oncology meetings and convening staff meetings approximately once per month. 18. The NUM is responsible for processing staff requests for leave and conducting annual staff appraisals for approximately 20 staff and organising replacement staff for sick leave. 19. The NUM is generally not on the floor in the HACU. The NUM comes in daily for about an average of half an hour or when contacted by the Team Leader for assistance with lunch relief, or with urgent matters or patient complaints. 20. In or around April 2012 Mr Pink, took over the Team Leader's responsibility for the allocation of staff to patients in HACU for the following day. However, when Mr Pink is on leave it is usually done by the Team Leader. 21. However, the Team Leader is responsible for changing the allocations on the shift when there are changes in patient requirements or staff skill mix or shortage of staff. 22. There is no formal requirement for the Team Leader to report to the NUM but the Team Leader can ask for the NUM's assistance eg; with bookings and following up with bed manager. 20Ms Pink described the Team Leader's duties: 23. The Team Leader does not have a patient load but instead is responsible for coordinating the overall care and treatment of patients in HACU. 24. The Team Leader's responsibilities include allocating staff to patients dependent on nursing skill acquisition and patient needs, liaising with nursing staff to discuss patient treatments and ongoing care, liaising with medical staff to discuss follow-up treatments, scheduling of treatments, monitoring and reporting on blood test results for all patients, liaison with other health professionals. I describe the duties of the Team Leader more fully below. 25. I commenced working as Team Leader in the HACU in or around 2007 and have regularly been identified on the roster to act as the Team Leader on day shifts. The Team Leader is assigned the 8.00am to 4.30pm shift usually on a fortnightly basis. 26. This Team Leader role was usually rotated amongst three to four RNs. Currently I rotate in the role with one other RN. 27. I have seen the Team Leader duty list written by Gabrielle Prest in July 2011. In my view this is an accurate general description of the roles of Team Leader in HACU and MODU. 21In the remainder of her statement Ms Pink expanded on the duties of a team leader, addressing the following matters: (1)Allocation of staff to patients; (2)Liaison with other health care disciplines; (3)Allocation of patients to beds or chairs; (4)Clinical management of unscheduled patients; (5)Liaison with bed manager; (6)Reviewing blood results; (7)Management of bookings for patient treatments. 22It may be observed at this point that not all of Ms Pink's evidence was accepted by witnesses for the respondent as being correct or accurate. 23When initially questioned in cross examination regarding matters a team leader would report to the NUM, Ms Pink suggested that the NUM would not be informed about a deteriorating patient: Q. Okay, a patient is deteriorating, you would be expected to inform the NUM, wouldn't you? A. No, not necessarily. Q. Not at all? A. No. Q. You would take it on yourself to deal with it, would you? A. Not by myself. Q. You would need to consult with at least a medical A. Medical officer. Q. And if you have done that, wouldn't it be the right thing to let Adrian know as well? A. No, I would let him know if there was plans for the patient to be admitted or if, you know, any concerns about the medical management. 24However, during later questioning, Ms Pink said that Mr Pink would be contacted (this accords with the evidence given by Mr Pink): Q. But it makes sense, doesn't it, to have a central point or somebody to page Adrian if a nurse comes to you and says, "Look, I'm not quite sure what to do here" and you realise, I actually do need to get this to Adrian's attention. You would make that decision to call him? A. What sort of things are you talking about? Q. We're going back to the deteriorating patient, if you like. A. Well, normally, you call the NUM first up for a deteriorating patient. 25Ms Pink agreed in cross-examination that a role of the HACU team leader was to co-ordinate patient care at HACU: Q. If somebody said to you that the NUM is responsible for managing patient flows out of the unit, do you have a problem understanding what that means? A. No Q. Because you know that means it is a situation, for example, where if an out-patient in the HACU needs to be put into an in-patient ward, that is an example of a patient flow, isn't it? A. That is a patient flow, yes. Q. You say, this is Annexure A, again the Gabriel (sic) Priest (sic) list of team leader duties, you generally believe it is an accurate description; is that what you say, "generally"? A. Yes Q. Would you say that you generally would be agreeing that they very first sentence is right, that is, "The overall role is to co-ordinate the clinical nursing care of the respective units in conjunction with the NUM" and then it goes on? A. Yes Q. So you agree with that? A.(No answer). Q. Do you also agree in that sentence "Team Leaders are then co-ordinating"? A. Yes

Ms White 26Ms White has been an RN since 1980. In 1994 Ms White commenced in the Haematology Department in the Apheresis/Blood Collection Unit. Since approximately 2004 she has been working in HACU. Since early 2005 Ms White said she had been regularly designated to undertake the role of team leader on day shifts in HACU. 27Ms White also described the role and staffing of HACU, consistent with Ms Pink's description. In relation to the NUM3's role, Ms White stated: 22. Until 2012, the NUM3, Mr Adrian Pink, would generally come into HACU a couple of times a day for short periods, effectively walking through the Unit to make sure things were running smoothly. From about April 2012 Mr Pink started coming into the Unit at the commencement of the shift and writing the initial staff to patient allocations on the whiteboard. Previously, a discussed below, the Team Leader performed this task. However whenever Mr Pink is absent (such as when he was on leave) the Team Leader still does the initial staff to patient allocation. The Team Leaders have continued at all times to adjust the staff to patient allocations throughout the day as described below. 23. At about the same time in 2012 Mr Pink also started to come through the Unit more frequently throughout the shift. During this time he intermittently relieved Team Leaders during their breaks, and sometimes helped with patients needing admission. However, these changes were not sustained and within a few months we had largely reverted to the arrangements which are discussed below. 28In relation to the team leader's role Ms White's evidence in her statement was as follows: 24. The Team Leader, unlike the other RNs in HACU, does not have a patient load. The Team Leader is responsible for overseeing the co-ordination of patient care within the HACU, which involves liaising with nursing staff and medical staff and other health professionals to ensure treatment and ongoing management is facilitated in a timely and safe manner. 25. The Team Leader role requires a strong haematological/infusion background and in depth knowledge and understanding of patient histories. The Team Leader is required to make complex clinical decisions relating to the treatment schedules of all patients booked into HACU each day and required to manage unexpected outcomes and anticipate potential problems with particular treatments. Team Leader Duty List 26. A Team Leader duty list was written up by the then Acting NUM3, Gabrielle Prest, in July 2011. Prior to this there used to be a role description in the orientation manual but there is no copy available. Gabrielle was acting NUM3 put the duty list on the notice board in HACU and also put a copy on the HACU computer desk top. All staff were informed of the duty list at the time and I recall that it was emailed to the Clinical Nurse Consultants. I printed a copy of it at the time but misplaced it. 27. In or around April 2012, after the NSW Nurses and Midwives' Association (NSWNMA) sent the first letter to Sydney Local Health District (SLHD) dated 30 March 2012, claiming payment of the in charge of shift allowance for Team Leaders in HACU, I checked the HACU computer for the Team Leader Duty List but it was no longer there. 28. In February 2013 I found my copy of the Team Leader duty list. A copy of the Team Leader Duty List is attached and marked Annexure "A". The Team Leader list is generally an accurate description of the Team Leader duties in HACU over the period that I have performed the role. 29. The HACU Team Leader is required to undertake the following duties and responsibilities: A. allocation and management of daily nurse to patient workload according to staffing levels and staff skill mix. Staff to patient allocations are based on an analysis of the nursing skill mix and assessment of patient needs. Allocation also depends on the scheduled treatments and whether the nurse is accredited to administer the treatment. There are a number of different specialist accreditations to be considered. Staff allocation includes the following: i. allocation of the planned patients to nursing staff for the shift (subject to the changes in 2012 which are discussed above); and ii. changing the staff to patient allocations during the shift due to a range of factors. These would include reallocation to accommodate unscheduled patient arrivals or patients requiring admission. Another example is where patients have adverse reactions needing one on one care. Other patients of the nurse who is required to provide one on one care would then need to be reallocated; B. organising the meal breaks and the number of nursing staff on the floor during tea and lunch breaks to ensure adequate patient care; C. allocation of all patients to chairs or beds. This involves the following: iii. allocation of patients in accordance with their needs, which requires knowledge of their condition, clinical treatment and length of treatment, and their mobility; iv. ensuring that patients with infective pathogens or contagions, eg shingles, Vancomycin Resistant Enterococcus (VRE), are isolated from other patients; v. adjusting throughout the day to accommodate such things as delayed or extended treatments, unscheduled arrivals or treatments running over time; and vi. liaising with the MODU Team Leader to access extra chairs or beds when needed; B. ordering all blood tests online in accordance with doctors' instructions/standing orders; C. checking the blood results of all haematology patients then conferring with the Resident Medical Officer (RMO) to prioritise patients for review; D. co-ordinating doctors' reviews of patient test results, ensuring that treatment orders are written up, and then ensuring that appropriate prescriptions are written and obtained; E. communicating with various medical teams, including immunology, neurology and sometimes renal and rheumatology, to update prescription orders or new treatment requirements, or patient reviews for patients who are unwell; F. organising the admission of HACU patients presenting unwell after review by the RMO. This requires liaison with the Bed Manager, and Admissions and may require contacting the ward directly and organising transfers; G. answering phone enquiries from patients, doctors, including staff doctors and general practitioners, other nursing staff, patients' relatives, allied health professionals, such as dieticians and physiotherapists, associated organisations such as Leukaemia Foundation, Red Cross Blood Bank; H. managing all patient appointments to ensure an appropriate clinical workload for HACU. This requires an assessment of all scheduled treatments, their administration times and the condition of the patients. This includes management of the following factors: i. patients may ring to change appointments and the Team Leader needs to look at the daily schedule to see where they can be fitted in. This involves making clinical judgements based on the urgency of the treatment, the length of administration of the treatment, the condition of the patient, the skill mix and availability of nursing staff. The Team Leader also needs to assess whether patients are suitable for treatment as an outpatient in HACU; ii. the Team Leader is required to notify Admissions if urgent treatment is needed and HACU has no physical capacity to accommodate the patient/s. The Team Leader has to liaise with the NUM to see what can be arranged; and iii. the Team Leader may be required to call patients to re-schedule their treatments due to changes in the workload or changes to staffing skill mix issues and availability of staff. 29The team leader duty list referred to by Ms White is the same as that referred to by Ms Pink. 30I make the point again that not all of Ms White's evidence was accepted as correct or accurate by witnesses for the respondent.

Ms Shean 31As I mentioned earlier, Ms Shean made a statement and gave oral evidence regarding the origins of cl 12(v) and how it came to be included in the Award. Ms Shean's evidence in her statement included the following: 11. In August 2000 the Association lodged a claim for a new award in the Industrial Relations Commission. The claim involved changes to a large number of award conditions including a provision for the "in charge of shift" allowance to be paid when the N/MUM was rostered on duty. Negotiations with the Department resulted in agreement on a number of claims but there was no agreement on the "in charge of shift" allowance claim. That claim, along with other claims that were not agreed, proceeded to arbitration. 12. The claim sought to amend the award provision for payment of the "in charge of shift" allowance with the insertion of the words in bold as follows: A registered nurse who is designated to be in charge of a ward or unit during the day, evening or night shifts, when the Nursing Unit Manager is not rostered for duty, shall be paid an allowance as set out in Item 8, of Table 2 of Part B per shift. Provided that the allowance shall also be paid when the Nursing Unit Manager is rostered on duty but the duties associated with the in charge of shift role are carried out by an employee other than the Nursing Unit Manager. 13. The Association led evidence from three witnesses regarding the delegation of N/MUM responsibilities to a registered nurse on shifts where the N/MUM was rostered on duty. 14. Elizabeth Harford, Nurse Manager of Cardiology Services, Westmead Hospital, gave evidence that a registered nurse in each unit of the service was nominated as the team leader on each shift. She explained that the team leader on the Monday to Friday day shifts was necessary because the management duties of the NUMs did not allow them to carry out the responsibility of managing the day to day clinical work of the shift. The "in charge of shift allowance" was paid to team leaders on evening, night and weekend shifts but no allowance was paid to the team leaders on the Monday to Friday day shifts when the NUMs were rostered on duty. Attached herein and marked as Annexure SS2 is a copy of the Affidavit of Elizabeth Harford sworn on 15 May 2001. 15. Michael Green, a registered nurse employed in the acute admission ward at Rozelle Hospital gave evidence of the practice in that unit of designating a shift co-ordinator/in charge of shift on all shifts, operating under the same role description. The shift co-ordinator rostered to undertake the role on the day shift Monday to Friday when the NUM was on duty did not receive the "in charge of shift' allowance. Attached herein and marked as Annexure SS3 is a copy of the Affidavit of Michael Green sworn on 9 May 2001. 16. Narelle Walton, a clinical nurse specialist at Wollongong Hospital gave evidence of her role as Clinical Care Co-ordinator with responsibility for day to day matters involving clinical care including the co-ordination of nursing, medical and paramedical staff. Ms Walton was rostered to work day shift Monday to Friday and did not receive an "in charge of shift" allowance. ... 18. The Commission determined that "where an RN is designated to be in charge of a ward or unit for a shift in circumstances where the NUM is rostered on duty but the NUM is unable to fulfil the clinical management role on the shift for organisational or other work related reasons, the RN shall be paid the ICS allowance" The parties were directed to confer on the terms of the provision awarded. 19. Following discussions between the Department and the Association agreement was reached that the following wording (in bold) would be inserted into the award: A registered nurse who is designated to be in charge of a ward or unit during day, evening or night shifts, when the Nursing/Midwifery Unit Manager is not rostered for duty, shall be paid an allowance as set out in Item 8, of Table 2 of Part B per shift. Provided that the allowance shall also be paid when the Nursing/Midwifery Unit Manager is rostered on duty if the day to day clinical management role for the shift is delegated to a designated registered nurse/midwife. 20. Agreed draft orders to that effect were filed by the Association on 15 August 2002. The new Public Hospital Nurses' (State) Interim Award was published on 12 June 2002. The Department issued Circular 2002/106, outlining the changes to the award, to Area Health Services on 28 November 2002. Attached herein and marked Annexure SS4 is a copy of that circular. 21. By early 2003 the Association was receiving complaints from members that they were undertaking the in charge of shift role on day shift Monday to Friday but payment of the 'in charge of shift' allowance payment had been refused. 22. The Association wrote to the Department outlining its concerns with what the Association saw as misinterpretations of the new award provisions at facility management level and sought meetings to address the problem. 23. Following discussion of the problems identified by the Association the Department issued an agreed circular to the public health system which the parties hoped would address the interpretation issues. Attached herein and marked as Annexure SS5 is a copy of this circular. 24. The circular proposed that the decision as to whether the clinical management role of the NUM to a registered nurse should be taken by senior nursing management following consultation with the NUMs on the need for delegation and current practice. Health services were instructed that they were to ensure that there was no de facto delegation of the role. The circular generally assisted in the application of the amendment to clause 12.

Documentary material 32In addition to the evidence of the three witnesses, the applicant relied on a one page document prepared by Mr Pink titled "Team Leader HACU". 33A further document was tendered by the applicant entitled "Review of Ground East Ambulatory Care Services - Final Report" dated April 2009. The document referred, inter alia, to the role of team leaders. 34The applicant also sought to rely on submissions made in the Nurses' Conditions Case regarding In Charge of Shift ("ICS").

Mr Pink 35As I earlier noted, Mr Pink is the NUM3, Ground Floor East, which comprises MODU, HACU and the Apheresis/Blood Unit, which is included within HACU. Mr Pink reports to the Operations Nurse Manager, Ms Geraldine Antonio and the Director of Nursing, Ms Sharne Hogan. Mr Pink worked as an NUM in the Emergency Department at Hornsby Hospital for 4 years and before that was the Nurse Manager in the Emergency Department at Westmead Hospital for approximately 4 years. He is a qualified RN, has a certificate in ICU and a post-graduate diploma in Health Services Management. Mr Pink commenced at the Hospital in May 2005. 36Mr Pink's evidence in his statement included the following in response to the statement of Ms White:

• when I came here the position of Team Leader was already in place. There was always one nurse assigned to co-ordinate the activity in each unit. It is not a formalised position but is there to assist the NUM to manage the flow of patients to the units.
• I am responsible for the management and co-ordination of patient care in HACU, MODU and the Apheresis Unit.
• When I arrive in the morning, I get each unit started which may mean that I give them a hand if they need a hand. I am floating between the units and if I am short of staff, I may on occasion take up a role in that unit to release a staff member to do what they do. Most of the morning, I am out on the floor. In addition, both the desk nurses and Team Leaders carry my page number and I have that on my at all times. I have directed them to page me if I am not on the unit.
• It has always been my practice to be regularly on the floor before and after April 2012.
• Both MODU and HACU Team Leaders do not have a patient load.
• All nursing staff that work in HACU whether the Team Leader or not are expected to have a strong haematological/infusion background. In essence we have a team approach to nursing and it would be expected that all nurses would be able to manage unexpected outcomes and issues with particular treatments. I would expect that any nurse working on the floor would take responsibility for initiating review and care of patients if they are unwell.
• The Team Leader is part of this team approach and assists me by co-ordinating patient care which often is as simple as saying this patient is ready to go and this patient is not. The Team Leader is a link otherwise we would end up with lots of people in the nurses' station.
• I do not consider that this list [Attachment A to this decision] is reflective of what they [Ms Pink and Ms White] are meant to do as Team Leaders. In my experience, the duties of the Team Leader will depend on who is carrying out the role and this differs between the two units.
• I as the NUM perform most of these duties [i.e. the duties of a Team Leader described by Ms White in her statement]. The Team Leaders may have sometimes carried out these tasks but not on a regular basis. 37Mr Pink responded to Ms Pink's statement and, in doing so, made the following points:
• Nursing staff are assigned to patients by me and not by the Team Leader. The Team Leader has in the past assisted with this role, although sporadically.
• Traditionally, the Team Leader role has been filled by senior nurses, this is mainly due to the fact that the unit is a top heavy unit. There is no stipulation that the Team Leader has to have 2 to 3 years' experience.
• I do not agree that I am generally not on the floor. I try to spend a minimum of 50% of the day on the floor between HACU and MODU. This will of course depend upon what is going on during the day.
• It is not the responsibility of the Team Leader to allocate staff to patients, however, the Team Leader has assisted to do this in the past.
• If I am away on annual leave or at a course, there is a staff member from MODU who has been trained up to carry out my role as NUM and is paid a higher duties allowance.
• If I am away on an Allocated Day Off (ADO), the staff member performing my role will be paid the ICS allowance.
• At the beginning of the shift, prior to staff commencing shift, I have attended to the allocation of staff to work areas. Where a patient becomes ill or there is a change in their condition, the NUM should be informed.
• If there is an issue with staffing or if there is late call of sick leave, it is the responsibility of the NUM to reallocate staff within the units or find alternative staff. Every morning, I will fill in the daily staffing sheet for the following day's shift. I will also have a discussion with the staffing office about what my staffing needs are for the following day.
• We take a collaborative approach to nursing. As nurses working in HACU, if they were not reporting issues to me that occurred during a shift, they would be working outside the scope of their roles/duties as a Registered Nurse.
• In my role as NUM, I am responsible for facilitating the admission of patients from unit to ward. The transfer of patients should be discussed with me.
• There are different ways for a patient to be admitted. If they are coming in as an admitted patient, the Care Co-ordinator would have done the admission, the patient would have their chemotherapy in HACU and would then be transferred up to the ward in the afternoon to complete their chemotherapy. The liaison in that situation would be confirming that the bed is ready. In this situation, I will know who is coming in and it will be the transfer of a patient from unit to unit.
• On the other hand, when there is a walk in patient who is unwell that needs to be admitted, then this becomes an issue about what is best practice for the patient. In my opinion, it is the role of the nurse to facilitate that process. However, staff have been asked to notify me when these patients come in.
• Staff will be required to fill in a Request for Admission (RFA) which is then faxed to Admissions who send it to the Bed Manager. If I am in the unit, I will contact the Bed Manager and tell them about the patient including whether they need a chemotherapy bed or whether they can go to a general ward. This does not happen daily but may happen a couple of times a week.
• The Bed Manager is looking at where the beds are available and normally that will not happen until 2.00pm. If there is a bed needed in Ward 5 East, I will phone to see what is available. Sometimes the Team Leader may call, but it is not expected that they will do that. It is a courtesy call.
• If there are admissions that need to occur after 4.30pm, by which time I am not there, then the Team Leader would do that themselves. However, the last thing I do every day before I go is to make sure that any admissions are taken care of. I will go to MODU and see what the estimated time of departure for all the patients is and make sure that there are enough staff. If it looks as though overtime is required, I will contact the After-hours Nurse Manager (ANM) and get the approval. I will also check admitted patients have beds and talk to the Bed Manager to make sure the beds are available and to get an estimated time when the patients can be transferred. I also do this daily for HACU.
• If an unwell patient presents to the unit and is not scheduled, if we have capacity to look after them, then we will. If we do not have capacity, the Team Leader should contact me and together we will work it out.
• What happens to patients on HACU and MODU is my direct and overall responsibility. While I do not make every decision with respect to the patient process and there is some level of clinical decision making involved, there is no more or no less involved in this aspect than what a RN on the unit is required to do. While the Team Leaders may have the clinical day to day management of patients, in my role as NUM, I have the clinical day to day management of the shift. 38In his oral evidence Mr Pink was asked what he mainly relied on the team leader for: Q. What do you mainly rely on the team leader for Mr Pink? A. Moving the patients through the system. So a team leader in both units will make sure that the patient comes in for treatment. So they have been allocated a seat or a chair for treatment. So certain things have to happen. One is we have to get blood test results and have a look at that. If you start from the beginning of the day patients will be put in the chairs, they get cannulated, the blood tests come back, the team leaders usually look at that those blood tests and have a discussion yes or no go ahead for treatment with the doctor. Then they will either, if it is chemotherapy they will organise with pharmacy to have the chemotherapy make up if we are going ahead and then on the reverse side of that when they are finishing up, patients will have new appointments made and for the next set of treatments and that has a scheduling function so that will be done. So that appointment is made, made sure they are in the schedule properly. Towards the end of the day the team leader then will get the next day's files out, in HACU they do. In MODU slightly differently. And staff going through the files to make sure, one, the file is complete, we have their blood tests, the orders are either there for the next day's treatment or they need to be written up. So there is a functional role for what they do. That encapsulates what both units do in a nutshell. 39In cross examination, Mr Pink was taken to a number of aspects of his evidence. I have extracted the evidence from the transcript: Allocating patients to beds Q. Ordinarily it is the role of the team leader to perform that function of allocating patients on the board to beds or chairs for the next day, that is what the team leader normally does? A. Not exclusively. Q. They normally do as a general proposition? A. As a general, they would do that. ... Adjustments to allocation of staff to patients Q. While we are on the subject, you have said that you are responsible for the initial allocation of the staff to patients? A. Yes. Q. And I will come back to that later. But I think you also gave evidence that the team leaders will adjust those allocations during the day from time to time to accommodate changes to workload? A. Yes. Q. As a general proposition the team leader will contact you about staffing issues when the existing staffing on the floor is inadequate to cope with the workload? A. They should, yes. Q. In other words when they find that they are unable to make appropriate adjustments then? A. Yes. ... Ways in which team leader role evolved Q. Would you say that the role of the team leader has also stayed the same since you started in the job in 2005? A. It's evolved, but that's because of the, probably the workload that we're under that's coming through both units now. Q. In what regards do you say it has evolved? A. Well, it's like anything; if you start at point A and move towards point B, as you see the needs for things to change, to change practise within the system, the roles will evolve with what's expected of those roles. It's like any nursing position, what was expected 10 years ago is not expected today. So has the role of the team leader evolved from what it originally stated? Absolutely it has. Has that been done because we require different workloads and different methods of organising our work? Absolutely. Q. What I was asking you is whether you can identify any specific ways in which the team leader role has evolved while you have been a Nursing Unit Manager? A. Not particularly, no. ... No background in haematology or oncology Q. I suggest to you that when you started in the job you had no clinical background whatsoever in haematology or oncology? A. Apart from what I've done on other wards, no, that's right. Clinical management of units initially (2005) undertaken by team leader Q. When you started on the job the day to day clinical management of the wards - sorry - the units was undertaken by the team leader? A. Initially yes. Q. That didn't change, that role is still undertaken by the team leader? A. I would disagree. ... Conventional model of team nursing not applicable in HACU Q. In any event you would agree that what occurs in HACU is not the conventional model of team nursing which is involved throughout the rest of the hospitals? A. Absolutely but you can't do that because of the work load we do. ... Many occasions when Mr Pink not available to provide immediate attention to unscheduled patients Q. There are many occasions when you are simply not available to provide the immediate attention which those unscheduled patients would require, that is so isn't it? A. Many occasions. ... Statement of team leader role generally accurate Q. Can I ask you to turn to page 5 of this document please point 4.4 the role of team leader is discussed and I think I was starting to take you when we discovered we had different documents to the very first sentence, "The team leader role resembles one of a clinical manager where operational decisions are based commonly on experience of local practices with little obvious formal protocol to the individual." That is a correct description of the situation in HACU, isn't it? A. I think it's a very general role, a very general description of what it is. Q. Yes it may be general but subject to that qualification, it is accurate? A. They are managing a patient, the clinical needs of the patient and the decisions that are being made should be in consultation. We do have processes in place for critically ill patients, the processes are in place for patient care. Q. As a general proposition, that's an accurate statement, isn't it Mr Pink? A. It's a very general proposition yes. ... Team leader role is a difficult one Q. Just going over the page, it says that a recent decision in December '08 was made by the nurse in charge to allocate the team leader in two week blocks to mitigate some of these issues. To create consistency, part time RNs were ineligible to perform the role. Was it your decision that the team leaders would be allocated in two week blocks? A. Yes there was a discussion we had with staff to see what best met the needs of the units. Q. How did it assist to have a team leader allocated for a two week block? A. If you have them on a day by day basis there are stuff that flows from day to day and the consequences of that. So if you are doing a job one day and then back on the floor the next day then there can be inconsistency that is not consistency of care. Q. What kind of areas are you taking about now? A. Scheduling appointments. Q. I am sorry? A. Scheduling and appointments are being booked. Q. Anything other than scheduling and appointments which lead you to think that continuity of A. I think consistency for the staff so they know what they're doing on a day to day basis. Q. Which staff are you talking about? A. The ones that are doing the actual team leader role. Q. Why would they do that? A. The workload is quite a complex job, I won't stand back from that and to actually one person doing it for a set period of time gives an overall picture so you can see what is going on. If you're jumping from day to day things can get missed. Q. Just looking at the next paragraph, you would agree with the proposition in the first sentence that the team leader role is generally described is a difficult and stressful one? A. I would say difficult, not necessarily stressful. Q. What makes you come to the conclusion that it is a difficult role? A. It is a combination of a lot of things, just a lot of things in your head. Mainly the scheduling of patients and allocating them in and out of time slots and making sure treatments can be accommodated within that. Answering questions from specialists and the like to actually organise what is going on throughout the unit. So it's not just that but if you're looking up your blood results for patients to go and have their chemotherapy, interacting with the doctors in the unit to see if it can go ahead. It's chasing up stuff like that. ... Team leaders take on significant coordinating role otherwise performed by NUM3 HIS HONOUR Q. I wonder Mr Pink, just looking at page 6 in the first full paragraph on that page which Ms Howell was taking you to just before. Do you see the second sentence, the role has very little direct clinical care commonly only when relieving or assisting floor staff? A. They have actually no physical they're actually placed at the desk doing their work. Q. Do you agree with that statement? A. Yes. Q. Just trying to understand, does that mean that because they're involved very little in direct clinical care, that they take on a significant coordinating administrative role or loads otherwise you would have to carry? A. Definitely. ... Change to team leader role following claim against respondent Q. Following the receipt of this claim in 2012 you made some changes to the way in which work was organised in HACU; that's right, isn't it? A. Probably yes. Q. Prior to March 2012 the allocation of staff to patients which you have given some evidence on was performed by the team leaders? A. Not exclusively, no. Q. The usual practice was that the team leader for each day allocates nurses to patients, is that so? A. As I said, not conclusively. Q. My question was about the usual practice? A. Yes. Q. That had been the case since you started in the unit in 2005? A. On and off, yes. Q. That was something you changed between March and May 2012? A. Yes. Q. Why did you do that? A. Just getting more involved within the units. Q. I'm sorry? A. I was getting more involved within the units. It was one of the areas that I thought, well, I was asked actually to take more control over. Q. You were asked by Ms Hogan to take over that duty? A. I was asked to take more control over. Q. By Ms Hogan? A. I'm not sure whether it was by Ms Hogan. It probably was, yes. Q. The reason you were asked to do that was because of the Association's letter claiming the allowance, wasn't it? A. You would have to ask Ms Hogan that. Q. She didn't tell you why she was asking you to make that change? A. I would assume that was the reason, but you'll have to ask her. Q. Did you tell you anything about the reason requiring you to make that change? A. No, she didn't. Q. I draw your attention to paragraph 39 of your witness statement. You say there, "Nursing' staff are assigned to patient by me not the team leader." That is true as far as the period since about April or May 2012? A. Correct. Q. When you say, "The team leader has is in the past assisted with this role, although sporadically"; the truth of the matter is until that time the team leader would routinely perform that role? A. As I said, it was not exclusively. Q. When you say, "The team leader has in the past assisted with this role, although sporadically"; that's not accurate, is it? A. No, it's not. It had a role in doing that part of the job. Q. Although you now perform the initial allocation of nurses to patient as a matter of general practice the team leader will undertake adjustments to that from time to time within a working day? A. If you're meaning do they reallocate staff throughout the day to meet needs? Q. Yes. A. On occasions, yes. ... To a degree team leaders play an important role in overseeing the role of inexperienced nurses Q. You would agree that from time to time those inexperienced staff, that is without the relevant clinical background, would encounter unexpected outcomes, or adverse developments in patients? A. Encounter issues relating to the patients, yes. Q. And they wouldn't have the expertise to know what to do in those situations? A. Depends on the situation, but generally, no. But if you're talking about dealing with patients with fevers or, you know, that are outside the normal roles, then there is procedures that are in place, but I would expect them to discuss or talk to the person they're working with, or at least to the team leader. Q. In that context the team leader plays an important role in overseeing the work, particularly of those inexperienced nurses? A. To some degree, yes. But also working alongside the nurses that they're working with. ... It is only the exception when team leader reports to NUM3 that a patient has become ill Q. Now you have said in paragraph 45 where a patient becomes ill, or there is a change in their condition, the NUM should be informed. Now first of all, obviously there would be a matter of judgment as to the degree of that change, and whether it was necessary to inform you or not? A. Yes. Q. And secondly, very often as a matter of practicality the team leader and the other registered nurses would have to deal with the situation immediately, and they'd inform you? A. Yes. Q. Would you agree with the general proposition that the team leader will report to you by exception? A. Yes they would. Q. And certainly there is no written guidelines that tell the team leader precisely what issues should be reported to the NUM? A. I think it's a clinical judgment issue. If a patient's deteriorating, then yes. If the patient's had an adverse reaction to a drug, then yes. If they're just generally not reacting it's a degree, it's a judgment call on the individuals. But the nurses would inform the TL the chain. ... NUM3 would rely on team leader in the first instance in treating febrile or neutropenic patients Q. Then you say there are issues with patient treatments on a shift such as a patient who is neutropenic and febrile I think we know what febrile is, but can you explain what neutropenic means? A. Neutropenia. It's where they've got no nutrients in their system, and they're more susceptible to infection, life threatening disease. Q. In those circumstances where you have both of those conditions, quick action needs to be taken; is that right? A. Absolutely. Q. And many times you will be physically present to respond immediately? A. Personally, no. Q. You would rely on the team leader to manage that situation in the first instance? A. In the first instance, yes because they're the ones that would be getting the results back from the blood tests as part of their role. ... Description of team leader role prepared by Mr Pink accurate Q. Do you think that is the document [which is Attachment B to this Decision] we were discussing before which is the description of the team leader HACU role which you prepared? A. Yes, probably. Q. Which was provided as part of the induction material to new starters? A. Yes. Q. Now without suggesting that that is an exhaustive list of what a team leader does Mr Pink, that was accurate at the time you wrote it? A. Probably, yes. Q. And what I want to suggest to you is that the only thing which has changed of significance is that the initial allocation of staff to patients is now done by you rather than the team leader? A. Yes. Q. Other than that qualification, all of the matters listed on this list would be done by the team leader? A. Yes. HOWELL: I tender that document. WITNESS: Sorry, can I just... the last item is not a ten weekly haematology. That one is not. 40In examination in chief, Mr Pink was asked question about the team leader role: Q. But the team leader has, am I right in accepting this, the team leader has additional responsibilities in your view in a coordinating role than any other RN who is in the unit? A. Absolutely, you can't run the unit without somebody coordinating. Q. Undertaking that role? A. Yes if you didn't have that person in that role you couldn't run the unit, it has been prior to me being in that role. Q. So you see it as fundamental? A. Yes it is a fundamental role.

Ms Antonio 41Ms Antonio commenced employment with the Sydney South West Area Health Service (a predecessor to the respondent) in 2004 as the Operational Nurse Manager at the Hospital. She is currently employed in this position. Ms Antonio reports to the Director of Nursing Services, Ms Hogan. 42From 1998 to 2004, Ms Antonio was the Deputy Director of Nursing at Ryde Hospital. She qualified as an RN in 1972. 43As Operational Nurse Manager at the Hospital, Ms Antonio is responsible for overseeing the operational day to day running of the nursing service at the Hospital. These duties include overseeing the Staffing Office, Patient Flow Unit, day to day management of and liaison with the Nursing Unit Managers and working as part of the Executive of Concord Hospital. Ms Antonio has approximately 30 NUMs and Nurse Managers that report to her on an operational basis. Mr Pink is among the NUMs that report to Ms Antonio. 44In her statement in the proceedings Ms Antonio gave the following evidence regarding team leaders at Concord Hospital: 13. Concord Hospital has other departments where a nurse provides a coordinating role in their department. The Intensive Care Unit has a Team Leader on each morning shift Monday to Friday where the NUM is present. A similar role exists for the Team Leader in the Emergency Department. The role is to provide coordination of the unit and support to the staff delivering patient care. The NUM remains in charge of the unit and is responsible for staffing, patient care and resources used within the unit. Another example in an ambulatory setting such as Ground Floor East is the Ambulatory Care Unit where approximately 35 patients present for procedures each day. In this setting there is a nurse who coordinates care of patients undergoing endoscopic procedures. Their role is to ensure that patient flow occurs to the various procedural rooms, to coordinate care of patients and communicate with the medical teams regarding any issues with patients. They report to the NUM by exception as necessary. Again the NUM remains in charge of the unit at all time during the shift. 14. A further example of nurses in this 'Team Leader/Coordination' role involves another Infusion Unit within the SLHD where a NUM oversees a number of ambulatory services including chemotherapy and other clinics. In this case, the Team Leader oversees the care and undertakes similar tasks to those described in the White statement and Pink Statement. 45Ms Antonio also referred to the role of team leaders in her statement. Her evidence in that regard included the following: 15. At Concord Hospital, Registered Nurses (RN) will assume the role of Team Leader on all shifts. 16. Although it is not a defined position, the Team Leader is assigned in the nurse allocation book and is responsible for co-ordinating patient care, liaising with medical staff, arranging staff breaks and supporting the NUM with the patient care aspects of the unit. 17. The role of a Team Leader is a part of the team structure and aids in ensuring the smooth running of that type of department. Nurses in wards are also responsible for co-ordinating clinical care. Most wards at Concord Hospital practice Team Nursing where a Team Leader is assigned to coordinate patient care and supervise other nurses in the team. 18. It is generally the decision of the NUM on the ward as to who is assigned the role. A Team Leader does require skill and sound clinical knowledge. The NUM is still overseeing the work of the Team Leader and the RNs on the shift. 19. While the Team Leaders are co-ordinating the care of patients, they are not in charge of the whole shift. All senior RNs on a shift are responsible for co-ordinating clinical care of patients. 46Ms Antonio referred to the Prest team leader duty statement. Ms Antonio stated: Prior to this matter, I had not seen this duty statement before. In order for this to be formalised duty statement, it would need to have been reviewed and be agreed by the Nursing Executive. Much of what is described in this duties list is what is expected of all RNs not just a Team Leader. For example, conducting audits and reporting faulty equipment. 47Ms Antonio stated that all nurses are required to report to the NUM: 26. All nurses working in the unit are required to report to the NUM usually by exception which means if they are senior nurses, there is an expectation that they are largely autonomous and have the skills and experience to practice independently. If for instance, a NUM had a junior Team Leader on a shift, you would expect that there would be more interaction between the NUM and the Team Leader. 27. If there is anything untoward that occurs on the shift, the NUM is present and is contactable. They may not be out on the floor at all times but they should not be expected to be, they always carry a pager and are aware of what is occurring on the shift. 48In relation to liaising with other health professionals, Ms Antonio stated: All nurses are expected to undertake this task. They should liaise with doctors as required, for example they may contact the doctor to request that an IV is put in or write up medication for a patient. This is not outside the scope of responsibility of all nurses. 49In relation to managing the treatment of unscheduled patients, Ms Antonio stated: This is standard work for this type of unit. As the Team Leader is co-ordinating patient flow, they will contact the doctor to see the patient and conduct their own observations. Unscheduled patients are part of the standard workload of this unit and similarly to the Emergency Department, a nurse assesses the patient and refers to a medical officer once the patient is assessed. The NUM should be informed by the Team Leader if the care of the unscheduled patient or patients will impact on the flow or treatment of booked patients for the unit. 50In cross-examination Ms Antonio was asked what she meant by "supervise" in the following context: Q. Is it your understanding of the system a team leader in a group of three will supervise the work of the other nurses in the team; is that right? A. Yes. Q. When you say "supervise", can you explain how you see what the nature of the supervision is in that context? A. They're usually the most experienced nurses in the team and then they may have more junior Registered Nurses or Enrolled Nurses working with them; so they do need to assess the skills of the other nurses that they're working with and they need to assign which patients or which activities within that group of patients those nurses might be allocated to. They will also coordinate things like meal breaks for their team. They will usually be the person that will contact the doctor if one of those 12 patients is unwell. They will teach nurses as they go if there is a complex dressing or something like that to be done. And there is a new graduate or a less junior nurse or a nurse learning a new skill, they will oversee and supervise them doing that sort of thing. They will be the main person that keeps the Nursing Unit Manager up to date as well, not solely but the main person that feeds that information back. 51Other matters raised in cross examination of Ms Antonio included the following: Q. It's a matter for the team leader as a general proposition to make an assessment as to whether a situation is one where the doctors have to be called in to have a look at the patient? A. Yes. ... Q. You would agree that the team leader is an important role in HACU A. Yes. Q. And it is necessary for the smooth running of the unit? A. Yes. ... Q. Obviously the team leader doesn't have an allocated patient load themselves. You would agree as a general proposition the team leader position is filled by one of the most experienced Registered Nurses on the unit? A. Yes. Q. What is your understanding by way of overview of the purpose of that role? A. My understandings is that it is a coordinating patient load because there are a lot of patients that need to come through the unit for treatment; it's a busy unit. And this is the coordination role that facilities the smooth running of the service by having a person in that position. Q. You would agree as a general proposition that role would encompass all of the duties which are set out in [Attachment A to this decision]? A. Yes.

Ms Hogan 52Ms Hogan is currently employed as the Director of Nursing (DON) for the Hospital and has been in this position since July 2008. From 20 January 2014 to 20 April 2014, Ms Hogan was the Acting Director of Nursing and Midwifery at Royal Prince Alfred Hospital. From May to July 2008, Ms Hogan was the Acting Director of Nursing Community Health for Sydney South West Area Health Service (SSWAHS). From May 2006 to May 2008, Ms Hogan was the Operational Nurse Manager at Bankstown Hospital, SSWAHS. 53Prior to May 2006, Ms Hogan held both clinical and nursing management positions within the New South Wales public hospital system. Her qualifications include a Diploma in Nursing from UTS, Graduate Certificate in Stomal Therapy Nursing from the Australian College of Nursing, Graduate Certificate in Intensive Care Nursing from the Australian College of Nursing, Graduate Diploma in Acute Care Nursing from UTS and a Masters of Nursing from UTS. Ms Hogan is currently a PhD candidate at the University of Tasmania. 54As DON, Ms Hogan is responsible for the provision of leadership, support and direction for all Nursing staff within the Hospital in the delivery of quality health care services. Her responsibilities include the planning, development, monitoring and management of Nursing from a financial, organisational, physical and human resource perspective. Overall, Ms Hogan manages approximately 1000 Full Time Equivalent (FTE) staff. She reports to the General Manager of the Hospital. 55In her statement filed in the proceedings Ms Hogan referred to Mr Pink's role in the following terms: 23. The NUM of Ground East is responsible for the day to day clinical management of the shift. This means ensuring that there are appropriate staffing levels, stock and equipment to provide safe and efficient patient care; managing patients; organising admission of a patient to an in-patient bed if required; attending rounds with the doctors as required; attending the Multidisciplinary Team meeting for Haematology and Oncology, NUMs meetings and other key nursing leadership meetings that occur. While the team leaders may carry out these duties some of the time, the NUM is responsible for these duties. 56Ms Hogan addressed various aspects of the statements of Ms White and Ms Pink regarding the role of team leader. Ms Hogan disagreed either in whole or in part with those aspects. For example: The organisation of meal breaks can be done between the nursing staff and does not necessarily need to be arranged by the NUM. It is entirely appropriate that nursing staff organise their own breaks. The NUM would ensure that the skill mix during breaks was appropriate and that any concerns regarding break allocation were escalated to him to resolve. ... I would expect all nurses to escalate any concerns about their patients to medical staff and the NUM. As a nurse, there is an expectation that you will employ critical thinking about your patient/s in relation to detecting whether they are deteriorating and nurses are educated in how to escalate and manage a deteriorating patient. ... All nursing staff on Ground East (except for the Nurse Practitioner or Clinical Nurse Consultant's) report to the NUM. The role of team leader is an unofficial role and is not recognised or differentiated from a Registered Nurse. This is the case with the team leader role in the wards at CRGH. ... While a nurse may be called a team leader on a shift it does not mean that they do not advise the NUM of what they are doing. They are required to notify the NUM on the shift of any issues with respect to patient care and any other issues that arise. In order for the team leader to be in charge of the shift, notification to the NUM would not be necessary and that is not the case. ... It is the responsibility of the NUM to liaise with the Bed Manager not the team leader. Patient flow is part of the NUM's responsibilities. 57In her statement, Ms Hogan referred to discussion with the applicant regarding HACU: 42. I recall that I have been involved in a number of meetings with HACU staff and the Association to discuss reasonable workload concerns. Specifically to discuss the activity and staffing of Ground East. I recall that the first meeting was held on 30 September 2008 and since that time there were further meetings in May 2011, June 2011, October 2011 and November 2011. 43. On 9 January 2013, in order to avoid any confusion regarding the role of the HACU Team Leader, I recall that I gave a clear directive to Adrian Pink regarding that he allocate staff to patients each day and also that he is to be notified by his staff regarding staff sick leave during the shift so that he can organise a replacement. This direction was given to Mr Adrian Pink in the presence of Ms Pink, Ms White, Ms Katharine Duffy (District Director of Nursing and Midwifery, SLHD), Ms Gina Finocchiaro (Director HR, SLHD) and Ms Joanne Moffitt (Association). I also gave clear directives to Ms Pink and Ms White at this meeting that they were to escalate issues to their NUM and were not to manage issues without advising their NUM. 58In relation to the issue of delegation, Ms Hogan stated: The delegation of the clinical management of the shift would have to be approved by the Director of Nursing or the Operational Nurse Manager in my absence if I had delegated that responsibility to her. I have never been consulted nor had a discussion regarding permanently delegating the responsibility for the clinical management of a shift to a Team Leader whilst the NUM is present on duty on any of the wards or units at CRGH. 59Under cross-examination Ms Hogan agreed she did not have day to day knowledge of how work is actually organised in HACU: Q. So in the four years that you've been the, in your current position, you have no idea of how work was actually arranged so that the team leader was performing that function? A. Not specifically, no. Q. And that's because you don't have the day to day knowledge of how work is actually organised in HACU? A. Correct. 60A question was put to Ms Hogan from the Bench about what words might describe the role of a team leader: Q. Well, what do you say about this description of the team leader and the two units we're concerned about? Someone who is leading and directing a team of nurses in the care and treatment of the patients? A. Yes. I think that's appropriate. Q. Do you think that's a fair description? A. Yes. 61The applicant respectfully submitted that Ms Hogan was a witness who was concerned to give evidence that assisted the respondent's case, and that this coloured her evidence to a significant degree. I think Ms Hogan gave her evidence truthfully and as accurately as her knowledge and recollections allowed. However, Ms Hogan agreed she did not have day to day knowledge of how work was actually organised in HACU and relied on information provided to her by Mr Pink. To that extent Ms Hogan's evidence does not add to the respondent's case.

Mr Craft 62Trevor Craft is employed by NSW Ministry of Health in the position of Deputy Director of the Workplace Relations Branch. That position is responsible for managing the development, implementation and evaluation of industrial relations policy and workplace reforms affecting employees and other participants in the NSW public health system. These responsibilities are exercised in accordance with overall strategic directions and other corporate and operational strategic change initiatives. The position entails extensive liaison with the major NSW Health unions, being the NSW Nurses and Midwives' Association; the Health Services Union NSW, and the Australian Salaried Medical Officers' Federation (NSW). The position also involves negotiations with central agencies, including, where appropriate, seeking to modify the application of government policy to suit the particular circumstances and operational needs of the NSW public health system. 63Mr Craft has occupied Senior Executive Service positions in the Ministry/Department of Health dealing with industrial relations/ employee relations/ workplace relations since November 2000. 64Mr Craft was involved in the proceedings in Matter No IRC 3810 of 2000, before the Commission (the 'Nurses Conditions Case'). In his statement he referred to the issue raised by Ms Shean in her statement regarding complaints by nurses that they were not being paid when they were performing the in charge of shift role on day shift. Mr Craft stated: 14. I refer to paragraphs 21 to 24 and Annexure SS5 of the Shean Statement. I have reviewed the Ministry's archived files regarding this Circular. In 2003, the Department was approached by the Association regarding the application of the ICS allowance and Circular 2004/4 was prepared as a result of those discussions. ... 16. From my review of the archived files, a number of emails were exchanged between Ms Shean, Mr Calder and myself regarding the preparation of the Circular. Agreement was eventually reached on a number of aspects of the Circular including: 16.1 the requirement that the in charge of shift be delegated to a registered nurse and that this decision is made at a level higher than Nursing Unit Manager and that management should consult with the Nursing Unit Manager prior to making that decision; and 16.2 that in order for the ICS allowance to be paid, the role needed to be performed for a full shift and payment should not be circumvented by asking more than one registered nurse to perform the role or asking one registered nurse to perform the role for say 6 or 7 hours of an 8 hour shift. ... 17. I believed it was important that the Circular convey two clear messages. The first was the sentence in the first unnumbered paragraph, page 2 of the Circular that "In situations that meet the Award prescription, payment of the allowance is to occur." The second was the precepts set out in the third unnumbered paragraph, page 2 of the Circular, commencing "The critical issue is whether Health Services wish to move down the model of allowing this clinical management role, normally performed by the Nursing Unit Manager, to be delegated to a registered nurse." 18. I considered that this in principle decision as to whether the clinical management role was to be delegated from the Nursing Unit Manager on clinical and operational grounds was properly to be taken by the relevant Health Service. The clear intention was that it be a conscious decision; necessary thought had to go into it, rather than the situation arising organically or on an ad-hoc and potentially variable basis. The expectation that the decision would be "taken at a higher level than Nursing Unit Manager" was to obviate any actual or perceived conflicts of interest, and to ensure that, in the vernacular, 'everybody was on the same page.' Further, I believe that the Department had no preference; it had no desire to stand in the shoes of the Health Service in reaching this decision. If it was not delegated, no payment arose. If it was delegated, there was an award entitlement for payment of the allowance. Circular 2004/4, which remains current as Policy Directive PD2005_421, was designed to set out the relevant considerations and framework, while ensuring the actual decision making occurred at the appropriate level for this matter. 65A question was put to Mr Craft from the Bench regarding the delegation issue: Q. Mr Craft, what do you say to the proposition that if a nurse happened to be undertaking a day to day clinical management role and had been doing that for some time, years even, with a tacit approval of the hospital and the district, what would you say about that? Are they entitled to the allowance or not in the absence of a specific delegation? A. If they are truly undertaking the role on a day to day... Q. Absolutely. Just take that as a fact. A. Yes, I accept that. There may not be a delegation that is in a formal instrument Q. No. A. but if it is truly delegated and it is truly described as the delegation clinical management role, yes. Q. Delegation. I'm saying there is no express delegation. It's simply it may have been that the nurse fell into that role, and it was recollected, as a matter of fact, that he or she was performing the work of a day to day clinical manager in a ward or unit, even in the absence of any delegation, and the hospital and the district tacitly approved that (that is, they just accepted that that was being done and said nothing about it, in the absence of any delegation). Would you say they're entitled or not to the allowance? A. Your Honour, I have a concern with this notion of tacit, recognised. It shouldn't be tacit. It should be a recognition. I'm not so much concerned about the formality of the delegation. I'm more concerned about who is discharging the clinical management role. Q. Yes. Who is, in my scenario, a registered nurse undertaking that role. Just assume that indeed the nurse is undertaking the clinical management role on a day to day basis; that the hospital executive knows about it; the district knows about it; they hadn't said anything in relation to it, but they have allowed the situation to carry on in the absence of any specific delegation. What do you say about that situation? A. I'd say, under all those provisos, I accept the payment. But I would also like to know what the nurse unit manager was actually doing with the clinical management responsibilities. Q. Yes. A. if it be the case that there's a divergence of opinion as to who is discharging the clinical management role, well, I place more emphasis on the management stream.

Award interpretation 66The Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 recently considered the relevant principles to be applied in interpreting an award. That consideration appears at [26]-[31] of the Full Bench decision. I respectfully adopt what is there stated. In particular, I note the following: (1)Generally speaking, awards are to be interpreted as any other enactment is interpreted. (2)The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words. (3)The meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context. (4)The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (5)In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. (6)Provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". It is rarely appropriate to take an overly strict or literal approach and, in fact, there is a tradition of adopting a generous construction where industrial awards are concerned (George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 to 550; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13 at [22] to [24]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) FCA 813; (2006) 153 IR 426 at [57] ('City of Wanneroo') and Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70; (2007) 161 IR 96 at [44]). 67As I earlier stated, the issue is whether two RNs, Ms White and Ms Pink, who were designated to perform the role of team leader in HACU from time to time, were entitled to be paid the ICS Allowance prescribed by the proviso in cl 12(v) of the Award whilst performing that role. The two nurses would only be entitled to the allowance if they were delegated the day to day clinical management role on those shifts that Mr Pink, the NUM for the purposes of the Award provision, was rostered on duty. 68In order to determine that issue it is necessary to determine what the words "day to day clinical management role for the shift" mean in the context of the Award read as a whole. It is also necessary to determine what the words "delegated" and "designated" mean. Having determined those issues it is then necessary to consider whether the evidence supports a conclusion that the "day to day clinical management role" was "delegated" to Ms White and Ms Pink in respect of those shifts that are the subject of the applicant's claim. 69The composite phrase "day to day clinical management role for the shift" is not defined in the Award. The phrase "day to day" may mean "happening regularly every day; daily" or it may mean "concerned with each successive day without consideration for the future; that is focused on the short-term": Oxford English Dictionary, Oxford University Press 2014, online edition. 70 The word "clinical" is relevantly defined in the Oxford English Dictionary as "Med. Of or pertaining to the sick-bed, spec. to that of indoor hospital patients." The Macquarie Dictionary Online edition (MacMillan Publishers, 2014) relevantly defines "clinical" as "concerned with observation and treatment of disease in the patient, as distinguished from an artificial experiment." A more helpful definition is found in the Merriam-Webster Online Dictionary: "relating to or based on work done with real patients: of or relating to the medical treatment that is given to patients in hospitals, clinics, etc." 71The word "management" is defined in the Oxford English Dictionary as "Organization, supervision, or direction; the application of skill or care in the manipulation, use, treatment, or control (of a thing or person), or in the conduct of something." However, it is instructive to have regard to a definition of "manage" in the Oxford English Dictionary: "orig. and chiefly Med. To control or relieve (a disease or disorder); to look after (a patient, case, or client) as appropriate. Also, esp. in later use: to provide or coordinate (a suitable course of action for the care of such a person)". 72The Macquarie Dictionary defines the word "management" as "the act or manner of managing; handling, direction, or control." The word "manage" is relevantly defined as "to handle, direct, govern, or control in action or use." 73The verb "delegate" is defined in the Oxford English Dictionary as being "To send or commission (a person) as a deputy or representative, with power to transact business for another; to depute or appoint to act." The Macquarie Dictionary relevantly defines the word as being "to commit powers or functions to others." 74The verb "designate" is relevantly defined in the Oxford English Dictionary as being "To appoint (a person or thing) to an office or function; to nominate for some role; to destine to a fate or purpose. Often with for, to the specified role or function." In the Macquarie Dictionary to designate is "to nominate or select for a duty, office, purpose, etc.; appoint; assign". 75The phrase "day to day clinical management role for the shift" is found in an industrial instrument dealing with the employment conditions of nurses and other health professionals working in the public health system. It is used in the immediate context of the NUM being rostered on duty, but the day to day clinical management role for the shift being delegated to a designated nurse/midwife. In that context the use of the term "day to day" implies that the designated nurse/midwife has no long term clinical management role because that belongs to the NUM and is only performing the role for the shift in respect of which the designated nurse/midwife has been delegated. The phrase "for the shift" emphasises the fact that the nurse/midwife has no clinical management role beyond that for which the delegation applies. 76 "Clinical management" is a more elastic term and may mean providing or coordinating the care and treatment of patients or it may mean supervising, directing or controlling the care and treatment of patients. 77A potential source of assistance as to what the parties intended by the phrase "clinical management role" is the purpose of cl 12(v) of the Award, or the mischief sought to be remedied by the provision. In that respect, regard may be had to the decision of the Full Bench in the Nurses' Conditions Case. It was in those proceedings that the Full Bench considered a claim by the applicant for a new allowance to be inserted in the Award in recognition of the additional work required to be performed by a RN who "is designated to carry out the duties associated with the in charge of shift role when the Nursing Unit Manager is on duty": [68] The second part of the claim relating to ICS is that the relevant allowance should be payable when the NUM is rostered on duty but the duties associated with the in charge of shift role are carried out by an employee other than the NUM. During the course of the hearing the Association amended this claim to read as follows: (v) A registered nurse who is designated to be in charge of a ward or unit during the day, evening or night shifts, when the Nursing Unit Manager is rostered for duty, shall be paid an allowance as set out in Item 8, of table 2 of part B per shift. Provided that the allowance shall also be paid when a registered nurse is designated to carry out the duties associated with the in charge of shift role when the Nursing Unit Manager is on duty (our emphasis). [69] Ms Howell submitted there had been a shift towards devolution of management functions down to the Unit or Ward level. In particular, she submitted, NUMs in some areas have taken on a greater managerial load resulting, in some institutions, in a situation where RNs have taken up managerial responsibilities previously performed by an NUM. The Association contended that in some cases an ICS or "team leader" position had been created to operate when the NUM was on duty. The purpose of the position was to attend to the day to day running of the ward in the same way that the role is performed when the NUM is off duty. This, counsel submitted, had been thought to be appropriate to free up NUMs for other managerial duties. [70] Ms Howell referred to three examples to support the claim, namely: the role of Ms Harford in the Cardiology and Cardiothoracic wards at Westmead Hospital where Ms Harford is in the role of "team leader" and is responsible for the management of clinical work on the shift, notwithstanding the NUM's presence; Ms Walton's position as Clinical Care Coordinator at Wollongong Hospital where she has the "responsibility for day to day matters involving clinical care" and accepts responsibility for "the organisation of nursing, medical and paramedical staff involved in patient care ..."; Mr Green, who is in the role of shift coordinator at Rozelle Hospital and is responsible for the day to day management of clinical matters. It was submitted that none of the three nurses received any extra allowance for the additional duties undertaken by them. [71] It was Mr Kenzie's submission for the HAC that the three examples referred to by the Association were unusual and did not justify the making of a new allowance that would have application across the health service. In referring to the evidence of Green, Walton and Harford, Mr Kenzie submitted "Their evidence revealed that they each had quite unique circumstances that would not be considered typical or usual." It was submitted for the respondent that it was not the case that there had been a transfer of duties to NUMs thus limiting their ability to be responsible for day to day clinical management of their ward or unit and that this further undermined any justification for a generally applicable allowance. Senior Counsel submitted that although nurses do take on additional responsibilities while the NUM is present, it is part of the practice of providing professional development. The HAC contended that if in such circumstances an additional allowance is to be paid it would discourage professional development. [72] The evidence did not indicate it is a widespread phenomenon for RNs to be undertaking the role of in charge of shift when the NUM is rostered on duty. Nevertheless, there was evidence that RNs were taking responsibility for the day-to-day clinical management of their ward or unit in circumstances where the NUM was rostered on duty but they were not being remunerated for such additional work. [73] Where RNs are taking on these additional responsibilities they should be properly remunerated. We have decided, therefore, that where an RN is designated to be in charge of a ward or unit for a shift in circumstances where the NUM is rostered on duty but the NUM is unable to fulfil the clinical management role on the shift for organisational or other work related reasons, the RN shall be paid the ICS allowance. The fact that the RN has to be designated to carry out the role of ICS where the NUM is unable to fulfil the clinical management role on a particular shift, will avoid any uncertainty or ambiguity about the circumstances in which the RN is entitled to the allowance. The parties are directed to confer on the precise terms of the provision awarded. 78It may be seen from the Full Bench's decision that it was not prepared to vary the Award to insert the provision proposed by the applicant. Instead, having regard to the evidence that RNs were taking responsibility for the day-to-day clinical management of their ward or unit in circumstances where the NUM was rostered on duty, the Full Bench determined that: [W]here an RN is designated to be in charge of a ward or unit for a shift in circumstances where the NUM is rostered on duty but the NUM is unable to fulfil the clinical management role on the shift for organisational or other work related reasons, the RN shall be paid the ICS allowance. 79The parties were directed to confer on the terms of an appropriate provision and eventually the provision that is now cl 12(v) was inserted into the Award. It is important to observe the significant difference between what the Full Bench determined and what the parties agreed upon as an appropriate award provision. The Full Bench referred to a nurse "designated to be in charge of a ward or unit for a shift in circumstances where the NUM is rostered on duty but the NUM is unable to fulfil the clinical management role on the shift for organisational or other work related reasons". The Award provision refers to two distinct and separate circumstances: (i) where a registered nurse who is designated to be in charge of a ward or unit during day, evening or night shifts, when the Nursing/Midwifery Unit Manager is not rostered for duty and; (ii) when the Nursing/Midwifery Unit Manager is rostered on duty if the day to day clinical management role for the shift is delegated to a designated registered nurse/midwife. In both cases the ICS Allowance is payable. In these proceedings I am concerned with the latter provision. 80In my opinion, the plain words of the latter provision cannot be construed to refer to a nurse who is designated to be in charge of a ward or unit. Extrinsic material cannot be used to construe a legislative provision unless a construction of the provision suggested by the material is reasonably open: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 113. Whilst I am not concerned here with a legislative provision, the same rule applies to an award provision. To make the point more directly, in Bryce v Apperley (1998) 82 IR 448 at 452 the Full Bench (quoting Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314) stated: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. 81In these circumstances, contrary to the applicant's submission, the role of the ICS is not the "best guide to the meaning of the words day to day clinical management". Nevertheless, some assistance may be gleaned from the Full Bench decision. The Full Bench at [73] referred to "circumstances where the NUM is rostered on duty but the NUM is unable to fulfil the clinical management role on the shift for organisational or other work related reasons..." It is in those circumstances, the Full Bench observed, that the RN is designated to fulfil the clinical management role on the particular shift. 82Thus, the NUM remains in charge of the unit, but the critical clinical management role is assigned to a designated RN. The evidence before the Full Bench indicated that, nevertheless, the ICS could "Liaise with NUM concerning ward management, Occupational Health and Safety issues, housekeeping and clinical matters..." This suggests that the RN designated to perform the clinical management role is not acting in any autonomous or independent capacity, but may call on the NUM if necessary for advice and assistance or to simply keep the NUM informed. However, in an immediate sense, given the NUM's preoccupation with other areas of his or her responsibility, the designated RN who has been delegated the clinical management role has responsibility for supervising and directing the care and treatment of patients for the shift. This would especially be the case where the RN undertaking the clinical management role had no direct patient load. 83Supervising and directing may include a large measure of coordination. The verb "coordinate" relevantly means "to combine in harmonious relation or action" (Macquarie Dictionary Online). In order to coordinate the work of nursing staff and the procedures in a hospital ward or unit, the "coordinator" will inevitably be involved in issuing directions and supervising to ensure the directions are carried out. 84The foregoing analysis leads me to the conclusion that in order to qualify for payment of the allowance under the proviso in cl 12(v), four conditions must be satisfied: (1)The clinical management role must involve responsibility at the nursing level for the supervision and direction, including coordination, of patient care and treatment in the relevant ward or unit. (2)There must be a delegation of the clinical management role. That is, a nurse/midwife must be appointed to carry out the role on a shift in circumstances where the NUM is rostered on duty for the shift, but is unavailable to fulfil the role on that shift. A nurse/midwife cannot simply assume responsibility on his or her own initiative. (3)The delegation of the role must be to a nurse/midwife designated to perform the role. That is, a particular nurse/midwife must be nominated or assigned to perform the role on a shift, presumably because they have the necessary skill, knowledge and experience. The designation of a nurse/midwife to fulfil the role may also constitute delegation. (4)The clinical management role is undertaken on a day to day basis. That is, the role does not survive beyond the shift in respect of which the necessary designation and delegation have been made. That is not to say a nurse/midwife cannot be designated and delegated to undertake the role for a defined period extending over a number of shifts or even on a continuing basis. 85It is noteworthy that Ms Hogan in giving her evidence agreed with a description of "team leader" as being "someone who is leading and directing a team of nurses in the care and treatment of the patients". That description is consistent with what I consider to be a "clinical management role". 86I would emphasise this point: a nurse/midwife who is performing the clinical management role on a shift is not to be regarded as in charge of the ward or unit. That is not what the Award provides. The NUM, whilst unavailable to perform the clinical management role, remains in charge of the ward or unit and the nurse/midwife performing one aspect (albeit a significant one) of the NUM's duties or responsibilities - the clinical management role - has a continuing accountability/responsibility to the NUM on matters of any clinical significance such as inadequate clinical staff skill mix, workload issues, patient aggression, patient complaints, deteriorating patient condition, equipment failure.

Whether Ms White and Ms Pink perform a day to day clinical management role 87I propose to consider the roles of Ms Pink and Ms White together. It does not seem to me that when performing the role of team leader there is any material difference in what the two RNs did.

Environment and staffing 88As I earlier explained, HACU is an outpatient unit within the Hospital. Since about 2002, HACU has been co-located with MODU and the Stem Cell Transplant/Apheresis Team on what is known as "Ground Floor East'. The three units have at all times since then continued to operate as distinct clinical and operational areas. They have separate staffing, rosters, budgets (or "cost centres"). Mr Pink is responsible for all three units. He has an office which is approximately 30 metres from HACU. 89HACU operates between the hours of 7.30am and 6.00pm, Monday to Friday. HACU nursing staff (other than the team leader) are rostered on in four staggered shifts, the first being from 7.30am to 4.00pm and the last being from 9.30am to 6.00pm. The HACU team leader ordinarily works 8.00am to 4.30pm. Mr Pink commences work at 7.30am. 90HACU is, and at all material times was, usually staffed by five RNs, one Enrolled Nurse and a team leader, although sometimes due to staff shortages this level is not achieved . The HACU nurses generally work in either two teams of three, or three teams of two. Mr Pink has 10.9 FTE staff reporting to him in HACU and 7.58 FTE staff in MODU. 91Patient flow in HACU is cyclical, but will always be around approximately 30-40 patients plus about five to seven patients having blood tests and 'review' by the haematology registrar based in HACU. There are 13 chairs and 3 beds in HACU making a total of 16 patient treatment spaces, which may be increased to 19 or 20 if needed and space is available in the adjoining MODU. Between the two units, there are approximately 1100 patients attending per month in clinics and for treatment. Ms Antonio stated that HACU is a busy unit. 92Thus, Mr Pink must divide his time between three different units, one of them - HACU - being a busy unit. He is also responsible for about 18 FTE staff.

NUM3 - Mr Pink 93As I have mentioned, Mr Pink is graded as a NUM3 and is responsible for the three units on Ground Floor East. Mr Pink has extensive duties and responsibilities. According to Mr Pink's job description, these fall under five main headings: (1)Management of resources, including: technical and material resources and staff; (2)Coordination of patient services, including: the planning and supervision of patient care, maintaining effective communications, maintaining the quality of care; (3)Facilitation of outcomes, including: development of staff, maintaining high standards and evaluating patient care; (4)Quality improvement; and (5)Safety and environment. 94In her evidence, Ms White described Mr Pink's functions as management and co-ordination of nursing services in all three Units. He also had a range of responsibilities including ordering stock, rostering, attending weekly medical/oncology team meetings and haematology team meetings, meetings with clinical Nurse Managers for each speciality and NUMs' monthly meetings. Ms White said Mr Pink was also responsible for conducting performance appraisals, organising regular educational in-services for staff, and ensuring staff compliance with health policies. 95The definition of a NUM3 in the Award depends on the definition of NUM1 and NUM2. The NUM1 position is defined under the Award to firstly mean a "registered nurse in charge of a ward or unit or group of wards or units in a public hospital..." whose responsibilities include: "Nursing/Midwifery Unit Manager Level 1", whose responsibilities include: (a) CO-ORDINATION OF PATIENT SERVICES - liaison with all health care disciplines for the provision of services to meet patient needs; the orchestration of services to meet patient needs after discharge; monitoring catering and transport services. (b) UNIT MANAGEMENT - implementation of hospital/health service policy; dissemination of information to all personnel; ensuring environmental safety; monitoring the use and maintenance of equipment; monitoring the supply and use of stock and supplies; monitoring cleaning services. (c) NURSING STAFF MANAGEMENT - direction, co-ordination and supervision of nursing activities; training, appraisal and counselling of nursing staff; rostering and/or allocation of nursing staff; development and/or implementation of new nursing practice according to patient need. 96A NUM2 is defined as "Nursing/Midwifery Unit Manager Level 2", whose responsibilities in relation to patient services, ward or unit management and staff management are in excess of those of a Nursing/Midwifery Unit Manager Level 1." A NUM3 is defined as "Nursing/Midwifery Unit Manager Level 3" whose responsibilities in relation to patient services, ward or unit management and staff management are in excess of those of a Nursing/Midwifery Unit Manager Level 2." 97Mr Pink said he tried to spend a minimum of 50% of the day on the floor between HACU and MODU. That depended upon what was going on during the day. However, Ms Pink stated that Mr Pink was generally not on the floor in the HACU. Rather, that he came in daily for about an average of half an hour or when contacted by the team leader for assistance with lunch relief, or with urgent matters or patient complaints. Ms White said Mr Pink "would generally come into HACU a couple of times a day for short periods, effectively walking through the Unit to make sure things were running smoothly." It is apparent Mr Pink spends no more than 50 % of his time on the floor in HACU, but in my opinion, given the evidence of Ms Pink and Ms White the period is considerably less. 98Mr Pink's position as NUM3 does not require any clinical experience in haematology or oncology. When Mr Pink initially took up the NUM2 role, he had no clinical experience in the area of oncology. 99The respondent submitted that the nature of nursing practices did not necessarily require a NUM to have a specialist clinical background in the area in order to be responsible for the clinical management of the shift. It was noted Mr Pink gave evidence that the NUM position is very competently supported by a number of senior specialist clinicians such as Nurse Practitioners and Clinical Nurse Consultants (CNCs). Mr Pink also gave the following evidence: Q. When you are allocating nurses to patients you need to know about the particular needs of the patient? A. All right. In this particular case, no, because if a patient is coming in for a set transfusion they're coming in for a type of treatment. As a manager I know my staff has certain skills. Those skills are either, if they're coming in for chemotherapy, then those patients need to be treated by a nurse with chemotherapy skills. If they're coming in for infusions or transfusions they need to be allocated to a nurse that actually has those skills to deal with that patient. If you're saying do I need to know the intimate ins and outs of each of those procedures to allocate staff to those patients; then, no, you're wrong there. Because the role is not about me allocating because I know this is a type of patients; it's about knowing the skills of the nurses that are required to look after the patients. 100In her evidence, Ms Hogan supported the proposition that a NUM does not necessarily require a clinical background in the area they work in order to have clinical management of the shift. 101It does not seem to me that an NUM must necessarily have the clinical skills relevant to the ward and unit the NUM is managing. They are able to rely on the skills of their staff and other health professionals. NUMs are essentially employed for their management, organisational, leadership and budgeting skills, albeit they must have nursing qualifications. 102However, it is clear that both Ms White and Ms Pink do have the clinical skills, knowledge and experience relevant to the work done in HACU and it is clearly the case that Mr Pink relies on these two RNs in that regard. Moreover, Mr Pink accepted that the day to day clinical management when he commenced in the role was undertaken by the team leader. As I earlier noted, Mr Pink gave the following evidence: Q. I suggest to you that when you started in the job you had no clinical background whatsoever in haematology or oncology? A. Apart from what I've done on other wards, no, that's right. Q. When you started on the job the day to day clinical management of the wards - sorry - the units was undertaken by the team leader? A. Initially yes. Q. That didn't change, that role is still undertaken by the team leader? A. I would disagree. 103It may be inferred that because Mr Pink lacked the clinical skills relevant to the management of HACU he relied on team leaders to provide him with the necessary assistance in that respect. Indeed, he conceded the team leaders undertook the clinical management role when he commenced in HACU. He disagreed, however, that the role continued to be performed by the team leader. 104Mr Pink did not expand on why he disagreed, but as he conceded the clinical management role was undertaken by team leaders when he commenced in HACU in 2005, it becomes necessary to consider whether that was a soundly based concession and, if so, whether that situation changed in the ensuing years.

Changes to team leader's role 105Dealing with the second issue first, the only changes to the team leader's role were in about April 2012. Mr Pink took over responsibility for the initial allocation of staff to patients for the shift. However, adjustments or reallocations during the course of the shift were still undertaken by the team leader. According to Ms Pink's evidence: The Team Leader frequently has to re-do patient allocations during the shift when changes occur to treatments and staffing allocations. The Team Leader has to manage changes to staff/patient allocations for example when HACU staff are required to leave the unit to assist with lumbar puncture and administration of intrathecal chemotherapy the Team Leader has to ensure that there is staff coverage for RNs assisting in these procedures. 106The other change was that the team leader was required to report all admissions to the NUM3. These changes followed correspondence from the applicant on 30 March 2012 in a claim for underpayment of the ICS Allowance was made on behalf of Ms Pink and Ms White. In that correspondence the applicant listed the duties and responsibilities of a team leader (which included allocation of staff). It was contended in the correspondence that the duties and responsibilities listed constituted a day to day clinical management role. The respondent's response to the list of duties and responsibilities was that, contrary to the applicant's assertions, they were either performed by the NUM3 or were part of a RN's role in providing indirect patient care. The claim of underpayment was rejected. 107Given the list of duties and responsibilities relied upon by the applicant to claim that Ms Pink and Ms White were performing a day to day clinical management role, the transfer of the allocation of staff to patients function and the requirement to notify the NUM of admissions were not changes to the team leader's role that fundamentally changed the nature of the role. And, in any event, it is conceded these two functions formed part of the team leader's duties up until 2012.

Duties performed by team leader 108That brings me to the other issue of whether Mr Pink's concession, that the clinical management role was undertaken by team leaders when he commenced in HACU in 2005, was soundly based. If it was, the change to the role in 2012 would not invalidate the concession for the period from 2012 onwards. 109 According to the evidence of Ms White, since about 2002, HACU has been co-located with MODU and the Stem Cell Transplant/Apheresis Team. Ms White stated that when co-location occurred in 2002 the previous arrangement, whereby HACU and MODU were each managed by a NUM1, was changed so that a single NUM2 was in charge of all three units. In 2005, the NUM2 position was upgraded to a NUM3 position. To the best of Ms White's recollection, the team leader positions in HACU have been in existence since about 2002, which would seem to coincide with the change from a NUM1 being in charge of each unit to a NUM2 taking over the management of the three units. This suggests that with a NUM2 taking over the three units, whereas previously each unit was managed by a NUM1, there was a need to insert an RN between the NUM and the nursing staff to perform the role of a team leader. 110Both Ms White and Ms Pink stated that the team leader duty list produced and published by Gabrielle Prest in July 2011 was generally an accurate description of the team leader duties in HACU over the period that they performed the role. Ms Prest had engaged in a "job swap" with Mr Pink for a period of months and it was during this time the list was prepared. Ms Prest was either a NUM2 or NUM3, but she had clinical experience in haematology and oncology. The list was circulated to nursing staff and placed on the "computer" as a desktop item from which it later, inexplicably, disappeared. 111The respondent submitted the Prest duty list and other lists produced by individuals over the years relating to Ground East were not formal job descriptions, but may have been used as informal guides to assist individuals undertaking the role. It was further submitted these documents had not been approved or endorsed by the Nursing Executive. 112That does not make the Prest duty list irrelevant. The evidence is that the duty list was generally an accurate description of the team leader duties in HACU. That being so, it is a question of whether the duties described in the list constitute a clinical management role. 113The main duties identified by the two team leaders from the Prest list were, in shorthand form, the following: (1)Allocation and management of daily nurse to patient workload according to staffing levels and staff skill mix. (2)Organising the meal breaks and the number of nursing staff on the floor during tea and lunch breaks to ensure adequate patient care. (3)Allocation of all patients to chairs or beds. (4)Ordering all blood tests online in accordance with doctors' instructions/standing orders. (5)Checking the blood results of all haematology patients then conferring with the Resident Medical Officer (RMO) to prioritise patients for review. (6)Co-ordinating doctors' reviews of patient test results, ensuring that treatment orders are written up, and then ensuring that appropriate prescriptions are written and obtained. (7)Communicating with various medical teams, including immunology, neurology and sometimes renal and rheumatology, to update prescription orders or new treatment requirements, or patient reviews for patients who are unwell. (8)Organising the admission of HACU patients presenting unwell after review by the RMO. This requires liaison with the Bed Manager, and Admissions and may require contacting the ward directly and organising transfers. (9)Answering phone enquiries from patients, doctors, including staff doctors and general practitioners, other nursing staff, patients' relatives, allied health professionals, such as dieticians and physiotherapists, associated organisations such as Leukaemia Foundation, Red Cross Blood Bank. (10)Managing all patient appointments to ensure an appropriate clinical workload for HACU. 114The general response of the respondent's witnesses (Mr Pink, Ms Antonio and Ms Hogan) to the duty list was that the NUM performs most of the duties and it was only "sometimes" team leaders carried out these tasks and/or much of what was described in the list was what was expected of all RNs, not just a team leader. This sits somewhat oddly with the fact that Ms Pink and Ms White do not have a patient load and are engaged full time during their shifts as team leader, directing and coordinating the other nursing staff. 115Mr Pink stated, "I do not consider that this list is reflective of what they are meant to do as Team Leaders." However, Mr Pink was aware of the existence of the list and took no steps to remove it or advise nursing staff it was not accurate. 116The witness' general response was not very helpful. Nevertheless, the response seemingly amounts to an acceptance that the team leader carried out the duties on the list. For instance, Ms Antonio agreed, as a general proposition, that the team leader's role would encompass all of the duties which are set out in the Prest list. The question is whether, in performing those duties, it amounts to the team leaders undertaking a "day to day clinical management role for the shift". I propose to consider each of the duties on the list. 117The first duty was the allocation of staff to patients. The team leaders performed this function until 2012 when Mr Pink was given an instruction by Ms Hogan that he was to undertake the task. As the instruction was given after the applicant lodged its claim for underpayment based on a list of duties that included the allocation of staff to patients, the inference is available that the task was removed from team leaders because it tended to indicate a clinical management role. 118According to the evidence of Ms Pink, the allocation of nursing staff to patients involves an analysis of scheduled patient treatments, individual patient needs and the skills of nursing staff rostered on duty. Ms Pink gave the following example: For example the following clinical scenarios need to be managed by the Team Leader: a. some patients have indwelling vascular access devices and only accredited nursing staff can access and perform dressings on these patients. b. Some patients will be receiving chemotherapy which not all staff are trained and accredited to administer. c. Some types of chemotherapy require the nurse to sit with the patient for approximately 45 minutes as the intravenous treatment is administered by gravity drip, not infusion pump as with many treatments, to monitor for signs of extravasation ie the leakage of the drug outside the vein. 119Until 2012, the team leader undertook the required analysis of skill mix of staff and the scheduled patient treatments and needs and the allocations were written on the white board at the end of each shift in preparation for the following day. 120It seems to me this duty intrinsically involved a clinical management role for the shift. The team leader, based on her knowledge of nursing staff accreditation and patient needs, makes the necessary allocations. The team leader is unquestionably involved in directing and coordinating nursing staff in the care and treatment of patients. 121Whilst team leaders ceased performing this duty in 2012, Ms White and Ms Pink gave evidence that the team leader frequently has to "re-do patient allocations during the shift when changes occur to treatments and staffing allocations". These would include reallocation to accommodate unscheduled patient arrivals or patients requiring admission. Another example mentioned was where patients had adverse reactions needing one-on-one care. Other patients of the nurse who is required to provide one-on-one care would then need to be reallocated. Mr Pink accepted in his oral evidence that team leaders will adjust staff allocations during the day from time to time to accommodate changes to workload. That would seem to me to involve the function of directing and coordinating patient care and treatment. 122The second duty was organising meal breaks. I do not think Ms Pink and Ms White put the role of the team leader any higher than the team leader monitors meal breaks to ensure all nurses get a break and that an adequate skill mix is maintained. Mr Pink's evidence was that nurses manage the times when they take meal breaks and there was no need for the team leader to be involved. However, he did concede if the team leader had any concern with nursing coverage the team leader could intervene. 123It was Ms Hogan's evidence that the organisation of meal breaks could be done between the nursing staff and did not necessarily need to be arranged by the NUM. Ms Hogan said It is entirely appropriate that nursing staff organise their own breaks. The NUM would ensure that the skill mix during breaks was appropriate and that any concerns regarding break allocation were escalated to him to resolve. 124Like many aspects of the role of team leader, Ms Hogan relied on what she was told by Mr Pink. However, Ms Hogan eventually accepted in her oral evidence that the team leader had a role in organising meal breaks, but the NUM was also involved: Q. As a general proposition, that role of ensuring breaks are properly covered is undertaken by the team leader? A. Well, my understanding that they they do ensure that people are aware of when when to take their breaks, but that the NUM is also involved in that as well. Q. Well, could I suggest to you that the only time that the NUM becomes involved is if, because of particular clinical events on the unit, there are insufficient staff A. Right, okay. Q. and there needs to be additional staff called in? A. Okay. Q. And leaving aside that contingency, it would be left to the team leader to oversee the taking of breaks? A. Look, they could do that, but I do expect that the NUM is involved in organising the breaks. Particularly in ground east, where there is three different lots of staff four different lots of staff, and it does need to be coordinated. 125It seems inevitable that if a problem arises about coverage during meal breaks a person designated as team leader who has a responsibility, for example, to adjust staff allocations during the day from time to time to accommodate changes to workload - a matter conceded by Mr Pink - the team leader would deal with meal break issues. I accept the evidence of Ms Pink and Ms White in this respect. 126The third duty on the Prest list was the allocation of all patients to chairs or beds depending on patient needs and treatments. Ms Pink gave the following examples of clinical scenarios need to be managed by the team leader: a. Patients who present unwell or post stem-cell transplant recipients who are expected to arrive unwell and often need urgent treatment and admission will need a bed, as do patients needing Hickman's catheters and portacaths accessed; and b. Patients with potentially transmissible infections, have to be isolated from patients with lowered immune status, eg leukaemia or post chemotherapy patients. 127Ms White stated that the allocation of patients to beds or chairs involved the following: i. allocation of patients in accordance with their needs, which requires knowledge of their condition, clinical treatment and length of treatment, and their mobility; ii. ensuring that patients with infective pathogens or contagions, eg shingles, Vancomycin Resistant Enterococcus (VRE), are isolated from other patients; iii. adjusting throughout the day to accommodate such things as delayed or extended treatments, unscheduled arrivals or treatments running over time; and iv. liaising with the MODU Team Leader to access extra chairs or beds when needed; 128Mr Pink accepted in his oral evidence that as a general rule team leaders allocated patients to beds or chairs. Again, in my opinion, what is involved in allocating patients to beds or chairs is quintessentially a clinical management role. 129The fourth and fifth duties involved the ordering and checking of blood tests. In this respect, it was Ms Pink's evidence: The Team Leader is responsible for reviewing all the blood test results for all patients and ordering blood or blood products from Concord Hospital Blood Bank as dictated by blood results so they can be administered to patients in a timely fashion. The Team Leader needs to check blood results as they become available on the computer to ensure that the haematology registrar or specialist looks at the blood results of patients who are likely to need blood products so treatments can be administered and completed the same day. This is because haematology patients usually need to have blood tests on the day they come to HACU and depending on the results may be given a blood or platelet transfusion or both. Chemotherapy patients usually have blood tests on the day they arrive for treatment and depending on results treatment may be deferred. The Team Leader again needs to check for blood results becoming available so they can be reviewed by the haematology registrar as soon as possible and ensure chemotherapy charts are signed off by doctors to avoid delays in treatment. 130Mr Pink's evidence regarding blood tests included the following: One is we have to get blood test results and have a look at that. If you start from the beginning of the day patients will be put in the chairs, they get cannulated, the blood tests come back, the team leaders usually look at that those blood tests and have a discussion yes or no go ahead for treatment with the doctor. 131In agreeing that the team leader role was a difficult one, Mr Pink stated, in part: Answering questions from specialists and the like to actually organise what is going on throughout the unit. So it's not just that but if you're looking up your blood results for patients to go and have their chemotherapy, interacting with the doctors in the unit to see if it can go ahead. 132It is apparent that the team leader performs the task of ordering and checking blood. It requires clinical knowledge and is clearly an important coordinating role. Indeed, Mr Pink used it as an example of the difficult role team leaders perform. It is an aspect of a clinical management role. 133The sixth duty involved coordinating doctors' reviews of patient test results, ensuring that treatment orders are written up, and then ensuring that appropriate prescriptions are written and obtained. There appeared to be no exception taken by any of the respondent's witnesses to this duty, so I presume it is accepted by them that it is part of the role of a team leader. It is essentially a coordinating role, but nevertheless, an important one. Ms Pink stated: [T]he Team Leader needs to check that medication and chemotherapy charts and prescriptions as needed are written up by medical staff and check what tests the specialist has requested. If the documentation is not up to date or not completed at all, which frequently happens, the Team Leader needs to assess based on experience which tests are required. All patient activities which occur in HACU need to be completed in order of priority to ensure patient flow is accelerated. This priority is managed by the Team Leader. 134The seventh duty on the list involved liaising with other health disciplines. In this respect, it was Ms Pink's evidence that: The Team Leader is responsible for liaising with the haematology registrar, anaesthetic registrar, other specialists, the Ground East NUM, nursing staff and with multidisciplinary services within the hospital. There are six specialist haematologists employed at Concord Hospital who liaise with the Team Leader to arrange bookings for their patients' treatments in HACU. If the specialist requests treatments for the same day, the Team Leader needs to assess whether HACU can accommodate this, depending on the needs of patients already booked in for treatment. This may require arranging admission for urgent treatment or liaising with both patients and specialists for treatment on a future date. The Team Leader is responsible for ensuring medical staff are contacted for urgent review when patients having infusions develop symptoms of adverse reaction for example, shortness of breath, fever, hives, rigors, high or low blood pressure. 135There did not appear to be any disagreement with the claim that team leaders liaise with other health disciplines to arrange bookings for their patients' treatments in HACU. Nor was there any disagreement that the team leader contacted medical staff for urgent review when patients having infusions develop symptoms of adverse reaction. The respondent's witnesses appear to have taken the view, however, that these duties were also the responsibility of individual nurses. Nevertheless, it was not denied that the team leader had a coordinating role in liaising with other health professionals and was responsible for ensuring medical staff were contacted for urgent review when patients having infusions developed symptoms of adverse reaction. That would obviously be the case where an inexperienced nurse or nurse unfamiliar with the HACU environment and procedures was involved. 136The eighth duty involved organising the admission of HACU patients presenting unwell. Ms Pink said in her statement: The Team Leader is responsible for managing the treatment of unscheduled patients who present to HACU because they are unwell. This usually involves liaising with specialist doctors, registrars, the bed manager and HACU staff to arrange extra treatment/tests or close monitoring of the patient. The Team Leader may need to change the staff to patient allocation if this occurs. The Team Leader may need to direct the patient to either the Emergency Department(ED), HACU, or the Medical Assessment Unit depending on clinical needs. The Team Leader is also responsible for managing patients who call HACU with medical problems. The Team Leader has to decide whether to consult the haematology registrar or haematology co-ordinator (the RN who co-ordinates care for haematology patients throughout Concord Hospital) or direct the patient to ED, their general practitioner or to HACU for review. The Team Leader is responsible for liaising with the Bed Manager when a decision is made that a patient in HACU is to be admitted to the ward and involves frequent follow up with the Bed Manager and receiving ward staff to ensure a timely transfer of the patient from HACU by 4.30pm when the majority of staff finish their shift. 137Ms Antonio responded to Ms Pink's statement, saying: This is standard work for this type of unit. As the Team Leader is co-ordinating patient flow, they will contact the doctor to see the patient and conduct their own observations. Unscheduled patients are part of the standard workload of this unit and similarly to the Emergency Department, a nurse assesses the patient and refers to a medical officer once the patient is assessed. The NUM should be informed by the Team Leader if the care of the unscheduled patient or patients will impact on the flow or treatment of booked patients for the unit. ...The Team Leader may direct a patient to attend the Emergency Department if they are unwell and HACU does not have capacity to see them at the time. They do not direct patients to the Medical Assessment Unit as this in an inpatient unit and beds are allocated by the Demand Management Unit once the patient has been accepted for an inpatient bed. 138On the question of admissions generally Mr Pink said in his statement: In my role as NUM, I am responsible for facilitating the admission of patients from unit to ward. The transfer of patients should be discussed with me. There are different ways for a patient to be admitted. If they are coming in as an admitted patient, the Care Co-ordinator would have done the admission, the patient would have their chemotherapy in HACU and would then be transferred up to the ward in the afternoon to complete their chemotherapy. The liaison in that situation would be confirming that the bed is ready. In this situation, I will know who is coming in and it will be the transfer of a patient from unit to unit. On the other hand, when there is a walk in patient who is unwell that needs to be admitted, then this becomes an issue about what is best practice for the patient. In my opinion, it is the role of the nurse to facilitate that process. However, staff have been asked to notify me when these patients come in. Staff will be required to fill in a Request for Admission (RFA) which is then faxed to Admissions who send it to the Bed Manager. If I am in the unit, I will contact the Bed Manager and tell them about the patient including whether they need a chemotherapy bed or whether they can go to a general ward. This does not happen daily but may happen a couple of times a week. The Bed Manager is looking at where the beds are available and normally that will not happen until 2.00pm. If there is a bed needed in Ward 5 East, I will phone to see what is available. Sometimes the Team Leader may call, but it is not expected that they will do that. It is a courtesy call. If there are admissions that need to occur after 4.30pm, by which time I am not there, then the Team Leader would do that themselves.... 139In answer to a proposition put to her in cross-examination that whilst the NUM may be informed of admissions, it is the team leader actually does the liaison with bed managers, Ms Hogan replied: A. Well, my directive to Mr Pink was that he was to be organising the beds for patients, and I will have to reinforce that with him. 140It would appear that Ms Hogan did not know, as a matter of fact, who liaised with the Bed Manager. 141In her reply statement, Ms Pink referred to the admissions process: If I formed the view that a patient may need admission I would contact the appropriate doctors who would generally come to see the patient and write admission notes if they thought admission was appropriate. I would then contact the Bed Manager to request an inpatient bed. I would explain the reasons for the admission and provide documentation to the bed manager. I would generally advise the NUM that we had an admission but the NUM would not be involved in the process. 142My view of the evidence is that the team leader plays a significant role in admitting HACU patients presenting as unwell. In that respect I accept the evidence of Ms Pink and Ms White. Whilst it may be accepted Mr Pink is to be informed of admissions, that does not make him the clinical manager for the shift. And whilst Mr Pink may exercise an incidental role in the day to day process he agreed under cross-examination there were "many occasions" when he was not available to deal with unscheduled patients. He also agreed it was the usual practice for the team leader to liaise with the Bed Manager and the Ward Manager. 143Dealing with patients who present as unwell is an integral part of the clinical management role. The team leader is involved in liaising with specialist doctors, registrars, the bed manager and HACU staff to arrange extra treatment/tests or close monitoring of the patient. The team leader may need to change the staff to patient allocation if this occurs. 144The ninth duty on the Prest list was answering telephone inquiries from patients, doctors, other nursing staff, patients' relatives, allied health professionals and the like concerning patient treatments, clinical management and bookings. It was asserted by Mr Pink this was within the normal scope of duties of an RN. Nevertheless, it was not contested that team leaders performed this duty. Indeed, Mr Pink said that "answering questions from specialists and the like..." was a feature of the team leader's difficult role. Dealing with telephone inquiries is ancillary to clinical management. 145The tenth duty was managing patient appointments. Ms White explained this required an assessment of all scheduled treatments, their administration times and the condition of the patients. This included management of the following factors: a. patients may ring to change appointments and the Team Leader needs to look at the daily schedule to see where they can be fitted in. This involves making clinical judgements based on the urgency of the treatment, the length of administration of the treatment, the condition of the patient, the skill mix and availability of nursing staff. The Team Leader also needs to assess whether patients are suitable for treatment as an outpatient in HACU; b. the Team Leader is required to notify Admissions if urgent treatment is needed and HACU has no physical capacity to accommodate the patient/s. The Team Leader has to liaise with the NUM to see what can be arranged; and c. the Team Leader may be required to call patients to re-schedule their treatments due to changes in the workload or changes to staffing skill mix issues and availability of staff. 146Ms Pink's evidence was as follows: The Team Leader is responsible for managing bookings for all patient treatments as requested by haematology, neurology, immunology, rheumatology, dermatology, renal and gastroenterology. This requires an assessment of the clinical needs of the individual patients and knowledge of how long treatments are likely to take and variations that may occur due to drug dosages, patient tolerance and conditions requiring longer treatment times. The Team Leader is responsible for reviewing and managing the daily patient load and rescheduling treatments if needed to aim for a reasonable workload. This requires assessment of urgency of treatments and knowledge of all patients' histories and needs. For example if HACU is fully booked it is the responsibility of the Team Leader to discuss with the haematology registrar in the ward which patients' treatments can be re-scheduled where necessary. 147Mr Pink did not appear to disagree to any significant degree with the description of Ms Pink and Ms White regarding their role in scheduling patients and ensuring a smooth patient flow. For example, Mr Pink gave the following oral evidence: Q. What do you mainly rely on the team leader for Mr Pink? A. Moving the patients through the system. So a team leader in both units will make sure that the patient comes in for treatment. So they have been allocated a seat or a chair for treatment. So certain things have to happen. One is we have to get blood test results and have a look at that. If you start from the beginning of the day patients will be put in the chairs, they get cannulated, the blood tests come back, the team leaders usually look at that those blood tests and have a discussion yes or no go ahead for treatment with the doctor. Then they will either, if it is chemotherapy they will organise with pharmacy to have the chemotherapy make up if we are going ahead and then on the reverse side of that when they are finishing up, patients will have new appointments made and for the next set of treatments and that has a scheduling function so that will be done. So that appointment is made, made sure they are in the schedule properly. Towards the end of the day the team leader then will get the next day's files out, in HACU they do. (emphasis added) ... Q. Just going over the page, it says that a recent decision in December '08 was made by the nurse in charge to allocate the team leader in two week blocks to mitigate some of these issues. To create consistency, part time RNs were ineligible to perform the role. Was it your decision that the team leaders would be allocated in two week blocks? A. Yes there was a discussion we had with staff to see what best met the needs of the units. Q. How did it assist to have a team leader allocated for a two week block? A. If you have them on a day by day basis there are stuff that flows from day to day and the consequences of that. So if you are doing a job one day and then back on the floor the next day then there can be inconsistency that is not consistency of care. Q. What kind of areas are you talking about now? A. Scheduling appointments. Q. I am sorry? A. Scheduling and appointments are being booked. (emphasis added) ... Q. Just looking at the next paragraph, you would agree with the proposition in the first sentence that the team leader role is generally described is a difficult and stressful one? A. I would say difficult, not necessarily stressful. Q. What makes you come to the conclusion that it is a difficult role? A. It is a combination of a lot of things, just a lot of things in your head. Mainly the scheduling of patients and allocating them in and out of time slots and making sure treatments can be accommodated within that. Answering questions from specialists and the like to actually organise what is going on throughout the unit. (emphasis added) ... Q. You have said essentially the rescheduling would simply involve looking at how long a procedure would take, and seeing whether there was a sufficient time slot? A. It's not as simple as that. Q. No? A. The process for doing that is we patients are scheduled for treatments throughout the months, so we preload our schedules as much as possible. Where a patient gets delayed, or needs to have treatments and not scheduled, then we look at our how we put those into the schedule. If that means we can move people around, or change what people have been scheduled to that name, we can do that. That is one section of the schedule. So if there is no space available within the haematology unit, then usually the medical oncology unit can also be take on a load if that is required. But the scheduling, or rescheduling of where patients go, I would expect the team leaders to actually do the rescheduling of patients. Say if they can't go ahead with their chemotherapy, or whatever is wrong with them, the system at that time, or the person at that time, to reschedule them within an allotted time. If they cannot do that, then they have been asked to talk to me and see what they can do about moving between units. Q. And to degree, making those assessments about whether you can or cannot accommodate rescheduling of particular patients, that will obviously depend on the nature of the procedure? A. Yes. Q. But it will also depend on the particular condition of the patient? A. Well that's in totality isn't it? I mean you're doing that because you need to get something some medication to a patient, so you are going to have a whether or not a patient can wait one, two, three days, or weeks, that's something you have to do with each individual, as each individual patients comes through. Q. That is an assessment in which the team leader will ordinarily make? A. Well it's not unexpected them to do it, but I expect them to do that. (emphasis added) 148Ms Pink was asked in cross-examination about Mr Pink's role in scheduling patients: Q. What about if there's no available spots in the schedule, though, and you have got a patient that's come in unexpectedly. You would have to let the NUM know of that? A. If we don't have any space for the patient, and we can consult with the haematologist or haematology registrar to see what the best course of action is for that patient, whether they should go to the emergency department or otherwise, and we were unable to accommodate them in HACU, and the medical officer was insisting that we do accommodate the patient in HACU, then, yes, I would call Adrian to help us resolve Q. To manage the issue? A. to manage the issue, yep 149The issue of whether a patient should go to the emergency department because they could not be accommodated in HACU is a relatively minor aspect of the task of scheduling and rescheduling of patient treatment. It is not surprising that, where a medical officer insists on HACU accommodation when there is none, the issue should be referred to the NUM who has overall responsibility for the unit. 150It appears to me from the evidence that scheduling and rescheduling of treatment for patients is a critical part of the team leader's role to "ensure safe, accurate and appropriate flow of patient management". In my opinion, it is also a fundamental aspect of the clinical management role.

Reporting to NUM 151My opinion is that the proviso in cl 12(v) was not intended to be construed as giving the nurse/midwife who has been delegated the clinical management role, exclusive authority for the shift in respect of that role and to perform the role without any reference to the NUM. The evidence relied upon by the Full Bench in the Nurses' Conditions Case included evidence that nurses performing the team leader or shift coordinator role notified the NUM or after-hours manager of potential adverse changes in staffing workload, or of any emergencies or incidents including patients, staff or relatives and liaise with the NUM concerning ward management, occupational health and safety issues, housekeeping and clinical matters. In doing so, it is clearly open to the team leader to seek advice on clinical matters, just as Ms Pink agreed she would seek assistance in resolving the issue put to her in cross-examination regarding the scheduling of patient treatment. 152Additionally, the respondent accepted that a person who is delegated as in charge of shift and is paid the allowance for such, reports all clinically significant issues to the Nurse Manager on duty. Ms Antonio gave the following evidence about the requirement for the ICS to report on a range of clinical issues to the Nurse Manager on duty: Q. The type of things that the in charge of shift would be required to report to the Nurse Manager as matters arise would include workload issues, if there was a greater workload than the nurses could cope with for any reason? A. Yes. Q. They would also be required to report staffing issues of a similar nature, if someone had to go off sick or something like that? A. Yes. Q. They would be required to report if there was inadequate skill mix on the wards? A. Yes. Q. They would be required to report if a patient was identified as being in a deteriorating condition? A. Yes. Q. They would also be required to report any patient complaint that arose? A. Yes. Sorry, depending on the nature of the complaint. Q. How would they assess what was reportable in that sense? A. If they were able to resolve the complaint, if it was a simple complaint and they could resolve it, they would not necessarily report it. Q. Are there other issues that spring to mind that the in charge shift is required to report to the Nurse Manager? A. Patient aggression. Q. Sorry? A. Patient or visitor aggression; resource issues, equipment failures. Q. As a general proposition the Nurse Manager will give guidance and direction to the in charge of shift as required about how to deal with this those issues? A. Yes. Q. Effectively the in charge of shift would be reporting to the Nurse Manager by exception; would you agree with that? A. Yes. Q. So if any particular problem or difficulty comes up they go to the Nurse Manager and get assistance as needed? A. Yes. 153It is also relevant to note Mr Pink's evidence regarding the team leader reporting to the NUM3: Q. Would you agree with the general proposition that the team leader will report to you by exception? A. Yes they would. Q. And certainly there is no written guidelines that tell the team leader precisely what issues should be reported to the NUM? A. I think it's a clinical judgment issue. If a patient's deteriorating, then yes. If the patient's had an adverse reaction to a drug, then yes. If they're just generally not reacting it's a degree, it's a judgment call on the individuals. But the nurses would inform the TL - the chain. 154The fact the team leader may, from time to time, consult the NUM in charge of the ward or unit does not mean the team leader is not performing a clinical management role for the shift. 155There was some suggestion by the respondent's witness that because "team leaders are supported on every shift by at least one or more Registrars and a Case Coordinator, as well as specialist clinical assistance from the many CNS staff", the team leaders could not be regarded as having a role of day to day clinical management for the shift. There was no evidence that Registrars and specialist staff were engaged in a day to day clinical management role at HACU as contemplated by cl 12(v) of the Award.

Conclusions regarding team leader's duties 156On the basis of the evidence regarding the duties performed by team leaders since 2002 I conclude that such duties constitute a clinical management role within the meaning of cl 12(v) of the Award. Mr Pink conceded that when he assumed the NUM role in 2005 he was not undertaking the clinical management role in HACU. There was no evidence to suggest that anyone other than the team leader undertook that role. Since 2005, the team leader's role has changed only in two respects: Mr Pink took over responsibility for the initial allocation of staff to patients for the shift and the team leader was required to report all admissions to the NUM3. Despite initial allocations being done by Mr Pink, adjustments or reallocations during the course of the shift were still undertaken by the team leader. That required the exercise of the same level of clinical skill and knowledge as was required to make initial allocations and involved direction of nursing staff as well as coordination of tasks. 157In my opinion, nothing about the team leader's role changed to such a degree between 2005 and the present that would indicate the team leaders no longer performed a day to day clinical management role for the shift. 158Mr Pink said in his evidence that: While the Team Leaders may have the clinical day to day management of patients, in my role as NUM, I have the clinical day to day management of the shift. 159Mr Pink was asked to explain his understanding of the difference between "clinical day to day management of patients and clinical day to day management of a shift": A. The day to day management of the patients can be broken up into a couple of areas, there's what the nurses are doing for those patients, they're looking after those patients, giving their infusions, making their appointments or engaging with them so they move through the system. There is the responsibility to make sure those patients move through. So that is part of it. The team leader is part of your their role is to facilitate movement through the system in both units and how that moves through smoothly. I have a responsibility across both areas and that's my responsibility to make sure that things happen clinically and correctly and efficiently, that's what I do. ... A. Clinical management of the shift is, I suppose it's all encompassing, it's to make sure we've got the right staff for the right patient, to make sure that we've got the right people doing the right job, to make sure we have the right equipment for the staff to work, to have the right balance between staff and patient ratios, it's making sure that the care that we give to the patients is a standard that is acceptable. It is those sorts of controls that I am responsible on a day to day basis and year to year, that's my role to make sure we can do our work. 160Mr Pink was asked whether he could recall any occasion when he had delegated any of the responsibilities he referred to. His answer was "No". 161The proviso in cl 12(v) of the Award does not refer to the "clinical day to day management of a shift". It refers to the "day to day clinical management role for the shift". It is not disputed that Mr Pink has an overall or overarching responsibility for HACU including clinical management in that unit. That appears to be where the confusion lies. When Mr Pink says he has "clinical day to day management of a shift" it seems to me he was describing his overall responsibility as being in charge of the shift. He conceded, however, team leaders have the responsibility for "clinical day to day management of patients". But that is what the proviso in cl 12(v) is directed to: the day to day care and treatment of patients. It is not directed at the ICS. 162 To some extent Mr Pink sought to relegate the team leader role to one of mere coordination (although on one view, even on its own, given Mr Pink's concessions about the "fundamental" and "complex" tasks involved in a team leader's coordination role, coordination could readily come with the description of "management"). However, when one considers the Prest list the role is more than coordination. It involves supervising, directing and coordinating nursing staff in the care and treatment of patients. 163The respondent submitted that Ms White and Ms Pink were performing duties expected of any registered nurse at their level of seniority. Ms Antonio stated, "Most wards at Concord Hospital practice team nursing, where a team leader is assigned to coordinate patient care and supervise other nurses in the team." Ms Hogan stated, "The role of team leader is an unofficial role", in that it is not a position in the Award "and is not recognised or differentiated from the ordinary duties expected of Registered Nurses." 164The respondent submitted the role of team leader was usually allocated to more senior nurses, who had the experience and were remunerated at a level where they are expected to have greater supervisory and knowledge and skills transfer responsibilities when working together with other nurses in a nursing team. It was said to be a role in a professional development sense, "so that less experienced nursing staff can refer to them and get appropriate advice." 165As the applicant submitted, there are a number of things to be said: about these submissions: (1)The HACU team leader role was introduced in 2002, well before Team Nursing was rolled out in inpatient wards at the Hospital in about 2007. (2)The Team Nursing Model has never been applied in HACU or other outpatient units at the Hospital. (3)The team leader role in HACU differs significantly from the team leader role under the inpatient Team Nursing Model at the Hospital.

Designation and delegation 166Insofar as designation is concerned there does not appear to be any dispute that the designation of an RN to perform the team leader role is done by placing the RN's name on a whiteboard in HACU. 167On the question of delegation, it was the respondent's submission that the delegation of an RN to perform the day to day clinical management role for the shift in HACU required a decision to be made by the Nursing Executive and for any delegation to be effected and to be clear and unambiguous. It was the respondent's position that there could be no de facto delegation of the role. 168It was further submitted that: [I]f Ms White and Ms Pink have taken it upon themselves to undertake duties of NUM Pink it is because of their own perceived views of their position as team leader and not because they have been required or delegated to do so. 169The respondent also submitted that: [I]n line with the requirements under the Award, supported by the guidelines in Circular No 2004/4 and in evidence from Ms Hogan, Ms Antonio and NUM Pink, the day to day clinical management of the shift has never been delegated to HACU team leaders, nor is there a requirement for the team leader to undertake the role such as to be entitled to the ICS Allowance. 170I referred earlier to the evidence of Ms Shean and Mr Craft regarding complaints in 2003 from the applicant's members that they were undertaking the in charge of shift role, but payment of the 'in charge of shift' allowance payment had been refused. 171There was some discussion between the parties to the Award regarding the issue and at the time the Department of Health issued an agreed circular to the public health system that the parties hoped would address the interpretation issues. 172The circular proposed that the decision as to whether the clinical management role of the NUM to an RN should be taken by senior nursing management following consultation with the NUMs on the need for delegation and current practice. Health services were instructed that they were to ensure that there was no de facto delegation of the role. 173In the present case, the evidence does not reveal whether there was any consultation between the NUM in charge of HACU and senior nursing management following the award variation that is cl 12(v), as to whether there should be a delegation of the clinical management role. This is probably because no thought was given to the issue at the time, the team leader position having been created earlier, in 2002. 174There was no evidence about the process whereby the team leader position was created and approved, but it has been expressly accepted by senior nursing management as a real and legitimate role within HACU. There can be no acceptance of the proposition that Ms White and Ms Pink took it upon themselves to undertake the team leader role. 175There is no doubt, in my opinion, that Ms Pink and Ms White were undertaking and continue to undertake the day to day clinical management role for the shift for which they are designated to undertake the role. The proviso in cl 12(v), however, provides that the relevant allowance is only payable "if the day to day clinical management role for the shift is delegated to a designated registered nurse/midwife". 176The Award is an "industrial instrument": see s 8 of the IR Act. It is also an instrument within the meaning of the Interpretation Act 1987: Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [38]; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 at [106]. 177Section 3 of the Interpretation Act provides: 3 Definitions (1) In this Act: instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. (2) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty. 178The Award is an instrument made under an Act, the IR Act. 179Sections 5(1) and (2) of the Interpretation Act provide: 5 Application of Act (1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. ... 180Section 49 of the Interpretation Act provides: 49 Delegation of functions (1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned. (2) A delegation: (a) may be general or limited, (b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and (c) may be revoked, wholly or partly, by the delegator. (emphasis added) ... 181There is no evidence of any written delegation to Ms Pink or Ms White of the function of day to day clinical management in HACU. Ms Hogan and Mr Pink said no delegation, written or otherwise, had occurred. 182Section 5(2) of the Interpretation Act allows me to consider whether the Award expresses a contrary intention. That is, the Award did not intend the delegation need be in writing. Section 49(1) of the Interpretation Act is expressed in language one would not regard as relevant or appropriate to an Award provision allowing for an employee to be delegated to perform the function of another employee. Further, despite the wording of s 49(1) the Award does not identify the person or body on whom the delegation power is conferred. Nor would one ordinarily regard an employee under the Award as an officer or holder of an office. 183The provision in cl 12(v) of the Award regarding delegation is expressed in the sparsest language, far removed from detailed statutory provisions dealing with delegation powers (see, for example, s 21 of the Health Administration Act 1982). 184In my opinion, it was not the intention of the Award that the provisions of s 49 of the Interpretation Act would apply to cl 12(v). Nor was it submitted by the respondent that the delegation had to be in writing. The Full Bench in the Nurses' Conditions Case would have been satisfied that uncertainty or ambiguity about the circumstances in which the RN is entitled to the allowance would be avoided by the RN being "designated". The parties chose to add the word "delegated", but despite the opportunity to do so did not opt for a provision that required the delegation to be in writing. The ordinary meaning of delegation does not require it to be in writing. In this connection, I note Mr Craft's concession, quite properly made, that "There may not be a delegation that is in a formal instrument." Mr Craft was closely involved in the Nurses' Conditions Case. 185There is a further consideration. As the respondent conceded "the principles of award construction and interpretation caution against a too literal adherence to the strict meaning of words and consideration ought to be given to a wider context to give a meaning with the general intention of the parties." The intention of the parties is to be judged objectively. But there is no indication that the intention was that any delegation under cl 12(v) had to be in writing. 186One last consideration is that the Commission is charged with making awards in accordance with the IR Act setting fair and reasonable conditions of employment for employees: see s 10. To construe the proviso in cl 12(v) as requiring a delegation to be in writing as a prerequisite to an entitlement to the relevant allowance could lead to an unfair result. It could mean that employees who had been performing the day to day clinical management role with the knowledge and acceptance of the employer, but who did not have instrument of delegation in writing might be refused payment of the allowance. 187In the present case the applicant relied, in effect, on a de facto delegation. That is, Ms Pink and Ms White had been performing the clinical management role and the nursing management of the Hospital had tacitly accepted the two RNs performing the role. That is not a criticism of the respondent and it is not asserted the respondent deliberately acted in an unfair manner. The respondent appears to have held a genuine belief that the work done by Ms Pink and Ms White did not constitute the day to day clinical management role for the shift for which they were designated to perform the role. 188The factual position is that Ms Pink and Ms White did not take it upon themselves to perform the team leader's role. They were designated to undertake that role on nominated shifts. A close examination of the team leader's role in these proceedings reveals that the duties performed by Ms Pink and Ms White in the role of team leader constituted a day to day clinical management role for the purposes of the proviso in cl 12(v). That the respondent was mistaken about the nature of the clinical management role does not alter the fact that Ms Pink and Ms White were appointed to act in a day to day clinical management role. 189The act of designating Ms Pink and Ms White to perform the clinical management role in circumstances where the NUM3 was rostered on duty also fulfilled the requirement to delegate.

Finding 190I find that Ms Pink and Ms White are entitled to the allowance prescribed by cl 12(v) of the Award for those shifts on which they performed the day to day clinical management role in HACU at Concord Hospital.

Amount of underpayment 191The Amended Particulars of the applicant's Small Claim indicated that Ms Pink was owed an amount of $15,750.13 (excluding interest) and Ms White and amount of $11,511.69 (excluding interest). The period of underpayment was claimed to be in relation to Ms Pink: 1 January 2007 - 13 July 2014 and in respect of Ms White: 1 January 2007 - 20 April 2014. The respondent disputed the amounts claimed. 192I propose that the parties confer as to the amounts of underpayment and interest in light of this decision. If the amounts are agreed, the agreement is to be incorporated into short minutes of order, which I shall deal with in Chambers. If there is no agreement the applicant is to advise my Associate of the nature and extent of disagreement. In either case, my Associate is to be advised within 14 days of the date of this decision.

Directions 193The Commission makes the following directions: (1)The parties are directed to confer as to the amounts owed to Ms Catherine Pink and Ms Bernadette White, including interest, as a consequence of the decision in this matter. (2)If the amounts referred to in (1) hereof are agreed, the agreement is to be incorporated into short minutes of order. If there is no agreement the applicant is to advise my Associate of the nature and extent of disagreement. In either case, my Associate is to be advised within 14 days of the date of this decision.

Attachment A | Attachment B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2014