New South Wales Nurses and Midwives' Association v Health Secretary in respect of Hunter New England Local Health District

Notifier's Case

1. In summary, the notifier submitted that: 1. The John Hunter Hospital Emergency Department Coordinators' (JHH ED Coordinators) responsibilities align squarely with the Public Health System Nurses' and Midwives' Award 2019 (Award) classification of a Nurse Unit Manager (NUM); 2. To the extent that any specific responsibilities of a NUM are not part of the responsibilities of the JHH ED Coordinators or are at a lower level than that ordinarily expected of a NUM, the JHH ED Coordinators are sufficiently aligned with the Award provisions of NUMs. Accordingly, the Hunter New England Local Health District's (respondent) submissions on any missing responsibilities should be rejected as overly technical or pedantic; and 3. A plain reading, in context, of the Award provisions regarding NUMs and the "in-charge allowance" makes obvious that the correct classification for the JHH ED Coordinators is a NUM. This is reinforced by the evidence that each other comparable Emergency Department in NSW has accepted this interpretation.

Respondent's Case

1. In short, the respondent's case was that: 1. The JHH ED Coordinators did not perform a number of responsibilities expected of a NUM; 2. To the extent that the JHH ED Coordinators had responsibilities similar to NUMs, the JHH ED Coordinators did so at a level below that of a NUM; and 3. Accordingly, the "in-charge" allowance was the correct means to remunerate the JHH ED Coordinators for their roles.
2. The respondent's submissions took the Commission in detail through the management structure sitting above the JHH ED Coordinators as foundational to the JHH ED Coordinators not performing the responsibilities of a NUM.
3. Both in witness examination, and during oral submissions, Mr Byrne for the respondent took the Commission forensically through the responsibilities of the JHH ED Coordinators to show they did not perform the responsibilities of a NUM.
4. During oral submissions, Mr Byrne also submitted that the Commission should discount significant portions of the evidence lead by the notifier based on either the witnesses' failure to give evidence of detailed position descriptions, or the witnesses not being in a position to know sufficient details of the position descriptions of allegedly comparable roles at comparable emergency departments.

Evidence

1. Not in dispute was that the John Hunter Hospital Emergency Department (JHH ED) has for some time been among the busiest in the State. By the time of the hearings in this matter it was the single busiest emergency department in NSW.
2. In oral submissions, Mr Byrne acknowledged that "[the] role of the ED co-ordinator is tough and across all of the nursing specialities, emergency medicine nursing is arguably one of the most demanding. It's stressful, it's dangerous, it's fast paced, it requires a high level of critical thinking, exceptional problem solving and organisational skills."
3. He also submitted that "the Emergency Department employs the entire gamut of nursing specialists classifications within the Award. There's a nurse manager, there are nursing unit managers, nurse practitioners, clinical nurse consultant, nurse educator, clinical nurse educator and clinical nurse specialists grade 1 and 2."
4. What is clearly not in dispute is that the JHH ED and its management is a very substantial task.
5. Evidence on behalf of the notifier was given by: 1. Ashley Dobozy (who was employed by the notifier as an organiser); 2. Benjamin Morwitzer (who was employed by the notifier as a Research Officer); 3. Elizabeth Robinson (who was employed by the notifier as lead in a public health organising team at the notifier); 4. Emma Gassman (a Registered Nurse working in the Emergency Department at Wollongong Hospital); 5. Alison Freeman (a Registered Nurse working in the Emergency Department at Westmead Hospital); 6. Shannon Condon (a Registered Nurse working in the JHH ED); 7. Saatje Berendsen-Russell (a Registered Nurse working in the Emergency Department at Royal Prince Alfred Hospital); 8. Rebecca Sommerlad (a Registered Nurse working in the JHH ED); 9. Remi Black (a Registered Nurse working in the JHH ED); and 10. Kathryn Power (a Registered Nurse working in the Emergency Department at Prince of Wales Hospital).
6. Evidence for the respondent was given by: 1. Nicole Feenan (a Registered Nurse, who was the JHH ED Nurse Manager); 2. Julie Tait (a Registered Nurse, who was employed as the Director of Nursing and Midwifery at the John Hunter Hospital (JHH)); and 3. Leanne Johnson (who was the General Manager of the JHH).

Notifier's Evidence

1. Ms Dobozy's evidence was that the Emergency Department at the Maitland Hospital, a smaller hospital within the same LHD as the JHH, classified the nurses in charge on the floor of their Emergency Department as NUMs. This was to support a submission by the notifier that the JHH ED Coordinators, who work in a larger Emergency Department in the same LHD, should therefore be classified as NUMs.
2. It was agreed by the respondent that the nurses in charge on the floor of the Maitland Hospital Emergency Department were classified as NUMs. Ms Dobozy properly agreed during cross examination that she was unable to give evidence of the overall nursing management structure at the Maitland Hospital, or of the specific responsibilities of the nurses in charge on the floor of the Maitland Hospital Emergency Department.
3. Mr Morwitzer's evidence was that by the time of the hearing, the JHH ED was the single busiest Emergency Department in NSW. This was not controversial between the parties.
4. Ms Robinson's evidence was limited to conducting a search of the notifier's records to report that no record could be found of an agreement said to have been made between the parties in 2014 to the effect that the JHH ED Coordinators should not be classified as NUMs.
5. Ms Robinson's evidence was not challenged, and the respondent did not attempt to rely on any such agreement during the hearing of this matter.
6. Each of the other witnesses called by the notifier were Registered Nurses of considerable experience, working at either the JHH ED or in emergency departments similar in size to the JHH ED.
7. Ms Gassman, Ms Freeman, Ms Berendsen-Russell and Ms Power had never worked at the JHH ED, and so were largely of relevance in providing a broader base of evidence as to the activities occurring in an emergency department of the scale of the JHH ED.
8. Ms Condon, Ms Sommerlad and Ms Black all worked, or had worked, as JHH ED Coordinators and their evidence was directly relevant to the JHH ED.
9. Ms Condon currently worked as a JHH ED Coordinator, Ms Sommerlad worked both as a JHH ED Coordinator, and under a separate contract as a NUM2 in the JHH ED. Ms Black was at the time on maternity leave but had been employed as an JHH ED Coordinator prior to her maternity leave.
10. Together with the evidence given by Ms Feenan, Ms Tait and Ms Johnson a clear picture was painted of the complex and busy work environment of the JHH ED. Employed within that Emergency Department are a large number of nurses performing a range of generalist, specialist and management nursing functions. One thing which was common to each of those nurses was being a qualified Registered Nurse.
11. It was clear from all of the evidence that, as their name suggests, the JHH ED Coordinators role is the management of, inter alia, nursing personnel to achieve the best possible medical outcome in that busy complex and changeable environment. Even before it was expressly put in submissions by Mr Byrne, it was readily apparent that the decisions made by the JHH ED Coordinators could be life or death decisions.
12. What the JHH ED Coordinators did not do was provide hands-on clinical care to patients, other than by exception. Theirs was a management, or coordination, role. Many of the activities undertaken were clearly more management than nursing, and indeed on their face some of the activities would apparently need little nursing background. Nevertheless, the totality of the evidence was that the JHH ED Coordinators would need to be experienced Registered Nurses to discharge their duties.
13. The evidence in chief of all the Emergency Department nurses who gave evidence for the notifier, including specifically those working in the JHH ED, was that the nurse in charge of an Emergency Department performs all of the tasks set out in clause 3 of the Award definition of a NUM, even if not on every shift. Each of these nurses worked through the list of tasks, and, with minor variations on some aspects of those tasks, each gave evidence that it was effectively not possible to perform the role of a nurse in charge of an Emergency Department without discharging all the duties within the definition of a NUM in clause 3 of the Award.
14. During cross examination Mr Byrne took Ms Condon, Ms Sommerlad and Ms Black, who work as JHH ED Coordinators, forensically through each of the tasks set out in clause 3 of the Award definition of a NUM. Each of these witnesses agreed during their cross-examination that some of the tasks were shared with the existing NUM2s. The JHH ED Coordinators perform more immediate versions of some tasks, with more detailed versions of those tasks being left to the NUM2s. There were also a number of tasks which Mr Byrne suggested the ED Coordinators did not perform at all, some of which was partially conceded by the witnesses.
15. The shared tasks included: 1. The JHH ED Coordinators have immediate conversations about unsatisfactory behaviours in the workplace, whereas formal performance management is the domain of the NUM2s; 2. The JHH ED Coordinators have immediate responsibility for finding replacement staff where for example a nurse had called in sick, whereas the NUM2s were responsible for creating and balancing rosters over multiple shifts and managing planned absences.
16. Mr Byrne suggested to the notifier's witnesses that certain tasks were not performed at all. These tasks were more structured professional development, such as professional development reviews, 90-day action plans, performance management, recruitment, and monthly accountability meetings. This was largely agreed by these witnesses.
17. Mr Byrne also put to the ED Coordinators that some of the tasks they described as being in the JHH ED Coordinators' portfolio were: 1. Not really strictly their role, such as management of wardsmen, which he suggested was really the domain of the wardsmen's supervisors; 2. The responsibility of any Registered Nurse on duty, or in some cases the responsibility of any senior Registered Nurse on duty; or 3. Were no different from those of any nurse in charge of a ward for a shift, such as managing meal breaks, rounding and stock sourcing where required.

Respondent's Evidence

1. Two of the respondent's witnesses were Registered Nurses who occupy more senior nursing management positions at the John Hunter Hospital. The third was the JHH General Manager.
2. Insofar as their evidence related to the tasks undertaken by a nurse in charge of a shift at an Emergency Department, and in particular the tasks undertaken by the JHH ED Coordinators, their evidence was largely the same as that given by the notifier's witnesses. To the extent it differed, that difference was essentially in line with the differences put to the notifier's witnesses by Mr Byrne. These issues have been set out above at [31 - 34].
3. The respondent's witnesses also gave evidence about internal processes and decision-making which had ultimately concluded that the JHH ED Coordinators did not meet the definition in clause 3 of the Award for a NUM, and that accordingly their role in charge of the JHH ED should be remunerated through the "in charge" allowance.
4. To the extent that the subjective opinion of each of the respondent's witnesses as to the correct classification of the JHH ED Coordinators is relevant, it is worth noting that Ms Feenan believed all along, including at the hearing, that the JHH ED Coordinators should be classified as NUMs.
5. Ms Johnson's evidence was less clear. It appeared at some earlier point she shared the view that the JHH ED Coordinators should be classified as NUMs, but later changed that view. When asked directly by the Commission why she had changed her view, Ms Johnson could only say that it was based on advice.
6. The evidence of the respondent's witnesses fulfilled the outline in the respondent's Case Summary as to the nursing management structure of the JHH ED. The Case Summary described the JHH ED nursing management structure as: 14. The nursing management structure of the JHH ED consists of a Critical Care Service Manager supported by the ED Nurse Manager ("ED NM") who is supported by two ED NUM's (Level 2) 15. The purpose, responsibilities and key accountabilities of the Critical Care Service Manager, ED NM and ED NUMs are considered in more detail below. 16. Included in the wider leadership team within the JHH ED is a Clinical Nurse Consultant (Grade 2); a Nurse Practitioner; a Transitional Nurse Practitioner; a Nurse Educator; a Clinical Nurse Educator and the ED Shift Coordinators. 17. Additionally, JHH ED is supported by the JHH Director of Nursing and Midwifery Services and the JHH Executive Office, the Patient Flow Manager (business hours) and the After-Hours Nurse Manager ("AHNM"). 18. Adjacent to the JHH ED is the Emergency Short Stay Unit ("ESSU"). Patients are transferred from the ED to the ESSU to alleviate pressure on the ED and where the expected length of stay for the patient within JHH is less than 24 hours. The ESSU has its own NUM (Level 2). 19. The nursing management structure of the JHH ED is planned and designed around the operational needs of department. This structure is not determined by the Ministry of Health, but rather at the LHD level. This is true for all nursing management structures across NSW Health.
7. Above this structure is the Director of Nursing for the JHH and above them is the General Manager of the JHH.
8. Each of the more senior nurses who gave evidence for the respondent agreed in cross examination that, other than by exception, they did not work "on the floor" providing either direct clinical care or supervising directly those providing that clinical care. The management functions they provided were essential to the functioning of the JHH ED, and to a large extent would be difficult to perform if they were not Registered Nurses, but nevertheless did not involve direct clinical care. It was agreed that, if required by unplanned events, they were available to assist or take over from the JHH ED Coordinators, or indeed from any other Registered Nurse in the JHH ED.

The Award

1. Set out in clause 3 (Definitions) of the Award is the definition of a NUM, being: "'Nursing/Midwifery Unit Manager' means a registered nurse in charge of a ward or unit or group of wards or units in a public hospital or health service or public health organisation and shall 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. '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. '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."
2. Set out in clause 12(v) (Special Allowances) of the Award is the condition for a Registered Nurse to be paid an "in-charge allowance", being: 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. Provided further that the allowance shall also be paid in the absence of a Nurse/Midwife Manager in facilities where the Nurse/Midwife Manager undertakes the functions usually carried out by a Nursing/Midwifery Unit Manager.

What the Commission is Empowered to "Order"

1. Based on the notifier's Statement of Relief, and answers to questions from the Commission by Ms Beard, who appeared for the notifier, I proceed on the basis that the Determination seeks an order pursuant to s 136(1)(d), relying on the powers granted to the Commission by s 175 of the Act.
2. Given the descriptor, and the nature of the outcome sought, it is clear that the First Direction seeks a direction pursuant to s 136(1)(a) of the Act.
3. The only means I can see to make the first part of the Second Direction is a recommendation pursuant to s 136(1)(a).
4. The second part of the Second Direction clearly seeks an order pursuant to s 380 of the Act.
5. To make an order pursuant to s 380, it is necessary to determine the correct application of the Award to the work of the relevant employees. This clearly enlivens s 175 of the Act, allowing an order pursuant to s 136(1)(d) determining that question.
6. Section 175 is also enlivened if a recommendation pursuant to s 136(1)(a) is otherwise the only thing the Commission is empowered to make, as each of the consideration and the making of a recommendation is clearly exercising the Commission's functions in connection with a matter before the Commission.
7. In case there is any doubt that s 175 is enlivened to interpret the Award based only on consideration of a recommendation pursuant to s 136(1)(a), the Commission could still make a recommendation, based on the same analysis, but without the force given to that analysis once the s 175 power of interpretation is enlivened.

Potential "Orders" in this Matter

1. Clearly the first, and fundamental, issue for determination is the correct application of the Award to the work performed by the JHH ED Coordinators.
2. The notifier contended for the outcome set out in the First Determination. The respondent contended that the work does not rise to the level of a NUM.
3. If the notifier is correct about the Award, then it seems almost self-evident that the Commission should make the determination and directions sought by the notifier. Specifically, this would be: 1. An order pursuant to s 136(1)(d), empowered by s 175, determining the application of the Award to the JHH ED Coordinators; 2. A direction pursuant to s 136(1)(a) for the parties to confer on implementing the order described in [54(1)]; 3. A recommendation pursuant to s 136(1)(a) that the respondent commencing paying the JHH ED Coordinators in accordance with the application of the Award as set out in the order in [54(1)]; and 4. An order pursuant to s 380 for underpaid wages.
4. If the respondent is correct, then none of the outcomes described in [54] need be made. It might nevertheless be appropriate to make an order pursuant to 136(1)(d), empowered by s 175, determining the application of the Award to the JHH ED Coordinators. Consequent to this, it may also be appropriate to consider a different recommendation or direction pursuant to s 136(1)(a).

Award Interpretation

1. In its written submissions, the respondent cited the decision of Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, and the approval of the statement of principles therein as to the interpretation of awards by the Full Bench of this Commission 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, being: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (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) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, 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. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by 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 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ).
2. The respondent's written submissions also referenced a further paragraph of President Walton's decision cited with approval by the same Full Bench: Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [1]
3. In oral submissions, Ms Beard for the notifier agreed that the written submissions of the respondent identified President Walton's principles as the correct approach to award interpretation.
4. Ms Beard also submitted that President Walton found that awards: … should receive a generous construction and [that] a narrow and pedantic approach to interpretation of [an award] is misplaced.
5. In this respect, the Full Bench in the STA v RTBU case held that [2] : Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; 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 [45]-[46]. The passage in Kucks cited by his Honour makes the point: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading."

The Evidence

1. As already noted, the respondent led evidence of the substantial management structure above the JHH ED Coordinators. This was summarised at paragraphs 14 to 18 of the respondent's Case Summary, as noted at [40-42] above.
2. The respondent's case was that the nursing management structure of the JHH ED extends above the JHH ED Coordinators, to include the NUM2s who do not ordinarily work on the floor of the JHH ED and are only on duty Monday to Friday. Indeed, the respondent's case was that the nursing management structure extended above those NUMs to the ED Nurse Manager and to the Director of Nursing for the JHH.
3. In advancing this submission, the respondent emphasised the NUM2s and the ED Nurse Manager perform activities that are clearly essential to the running of the JHH ED, and that if required are expected to assist on the floor of the JHH ED.
4. By viewing the nursing management structure in this way, the respondent assigned overall clinical management of the JHH ED to the existing NUM2s, which it submitted was then delegated the JHH ED Coordinators in accordance with clause 12(v) of the Award.
5. This analysis also allowed for the JHH ED Coordinators to be appropriately remunerated via the in-charge allowance when the NUM2s were not on duty.
6. The respondent referred to its internal decision making in its written submissions setting out the logic as to why the JHH ED Coordinators did not satisfy the definition of NUMs: 46. On 21 April 2021, Ms Leanne Johnson, JHH General Manager, sent correspondence to the NSWNWA and provided detail of the executives reasons for not being able to support the regrading proposal submitted by the JHH ED Coordinators. She states: 'the JHH ED Coordinator is not required to perform or undertake any of the following NUM1 (PHS Award) responsibilities: - orchestration of services to meet patient needs after discharge; - monitoring catering and transport services; - dissemination of information to all personnel; - monitoring the use and maintenance of equipment; - monitoring the supply and use of stock and supplies; - monitoring cleaning services; - 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.' 47. In order to meet the requirements (and satisfy the definition) of NUM (Level 1) within the PHS Award, the above responsibilities would need to be required to be performed.
7. In his oral submissions, Mr Byrne reiterated the respondent's reliance on this logic, taking the Commission to examples where certain tasks were either not performed by the JHH ED Coordinators, were performed at a lower level than should be expected of a NUM, or were expected of all senior clinicians. Examples of this included: 1. Completion of performance management, development reviews and 90-day action plans and recruitment were examples of tasks not performed at all; 2. Immediate conversations about below the line behaviours, management of wards and cleaning staff, rostering and allocation of nursing staff, monitoring the supply and use of stock and supplies, and development or implementation of new nursing practice were all tasks which Mr Byrne submitted were not perform to the level of a NUM; and 3. Ensuring staff get their meal breaks, replacing sick leave, hourly rounding, sourcing stock when required, escalating care delays and arranging maintenance were all examples which Mr Byrne pointed to as being the responsibility of all senior clinicians and/or any in charge on a shift.
8. Mr Byrne submitted that the Commission should discount the evidence of nurses from other emergency departments on the basis that none of them had produced relevant position descriptions and were unable to talk about portfolio responsibilities of clinical NUMs at the other hospitals.
9. In his oral submissions, Mr Byrne emphasised that right to the top of the nursing management structure of the JHH ED, each person in the structure was, as a foundational requirement, a Registered Nurse. Each successive position higher in the structure had increasing management responsibilities, and decreasing direct clinical responsibilities, but none could hold their position unless they were a Registered Nurse.
10. Mr Byrne also emphasised to the Commission the various specialist nursing roles within the JHH ED, such a Clinical Nurse Specialist who performed specialist roles, requiring specific training and/or experience over and above that of a Registered Nurse, but who might not have specific management responsibilities.
11. In his oral submissions, Mr Byrne put it this way: Not all of these positions have management responsibilities, however, the expectation of a graded nursing position is that, as a high classification, you do possess the requisite skill and knowledge and have professional responsibility for supporting, guiding and mentoring beginning practitioners. I make the observation here, Commissioner Muir, that in the notifier's aide memoire provided which was titled 'Level 6 Emergency Department Nursing Management Structure', the nursing management structure within the ED is supported by all of the clinical leaders within the department. The absence of the word "manager" in a position title doesn't diminish the fact that there are several clinical leadership positions employed across the John Hunter Emergency Department.
12. He took the witnesses and then the Commission forensically through the responsibilities of the JHH Critical Care Service Manager, JHH ED Nurse Manager and the JHH ED NUM2s, before comparing them with the responsibilities of the JHH ED Coordinators.
13. Mr Byrne's oral submissions reiterated the respondent's written submissions that it was a matter for each individual hospital to set the structure for its Emergency Department.
14. The notifier's submissions can be conveniently summarised through the following extracts from their written Case Summary: 8. The ED Coordinators Manual defines the role and responsibilities of the JHH ED Coordinator … as follows: "The ED Coordinator has a shared responsibility, in partnership with the ED Staff Specialist (or designated senior Doctor), to facilitate the safe management, movement and departure of patients in the Emergency Department in a timely and efficient manner. The Coordinator, as an effective leader in the multi-disciplinary environment, must have an understanding and strong commitment to Key Performance Indicators (KPI's) within Emergency Medicine, and how our performance can impact the organisation and the patient outcomes" And "To lead a clinical services team to provide excellent patient/client care within a dynamic Level 6 Emergency department in order to maximise the health outcomes for the community in which the clinical services functions." … 12. To the extent that the Commission determine that the ED Coordinators at JHH perform a mixed function, the notifier submits that the proper test to be applied by the Commission is an examination of the "major and substantial employment" or the "principal purpose" or "primary function" of the employee. … 18. The Award contains a scheme of hierarchy for Nursing Unit Management with the second and third levels performing duties in excess of those of a NUM Grade 1. The fact that the Respondent employs two full time equivalent ('FTE') NUM2's within the JHH ED does not preclude ED Coordinators from also being classified as NUM1's where their duties clearly align with the duties of a NUM as defined under the Award. … 21. The current Nursing Management structure in the JHH ED is that there is one Nurse Manager Grade 4 supported by two FTE Nurse Unit Manager Grade 2 … positions. Each of the NM and NUM Grade 2 roles are employed Monday to Friday business hours and do not have direct clinical responsibilities, that is, they do not perform duties on the floor of the ED directing the day-to-day operations of the Department or managing the clinical care provided within the ED. The limited instances where a NUM2 may work clinically is where ambulance offload delays are occurring, or an ED Coordinator is unable to be relieved for a break by another clinical nurse. 22. The roles and duties of the NUM2 positions are distinct with each of the NUM2's having separate responsibilities for aspects of Department management. One NUM2 role is responsible for what is described as Human Resources matters and the other NUM2 position is responsible for what is described as Quality and Safety matters. Neither of the current NUM2's has responsibility for all managerial aspects or the JHH ED and neither of the JHH ED NUM2 positions are specifically responsible for the clinical or day to day operational management of the JHH ED. 23. The day to day clinical and operational management for the JHH ED is the responsibility of an appointed ED Coordinator. 24. The Notifier accepts that whilst it is open for an employer to structure a Department in order to meet the needs of the particular unit, it is the Notifier's submission that it must do so in a manner that ensures employees are remunerated in accordance with the Award.
15. The notifier submitted an eight-page table (Notifier Table) in which it set out the various Award defined responsibilities of a NUM, and the evidence which the notifier said had been given as to the JHH ED Coordinators undertaking such responsibilities. The Notifier Table provided cross references between the evidence and each of the responsibilities of a NUM from the Award.
16. It is important to observe that not every nurse from JHH ED gave evidence of all the NUM responsibilities being part of her work as an ED Coordinator. It is also important to observe, as the respondent correctly pointed out, that some of the evidence was of performing the relevant responsibilities at a level which didn't distinguish that work from the work a nurse in charge of a shift would undertake or perform.

The Award Provisions

1. The dispute notification concerned interpretation of the Public Health System Nurses' and Midwives' Award 2019. By the time of hearing this had been replaced by the Public Health System Nurses' and Midwives' Award 2021 (2021 Award). The parties specifically agreed, and I find, that nothing turns on this as the relevant provisions of each award are the same. The outcomes of this decision are therefore applicable during the currency of each of the Award and 2021 Award.
2. Neither party's submission took the Commission to anything in the intent of the authors that would differ from the ordinary meaning of the relevant Award clauses, their context within the Award, or the purpose and objective of the clauses as disclosed by their ordinary meaning.
3. Between the definition of a NUM and the conditions precedent to being entitled to the "in-charge allowance", it is clear that the starting position is that a NUM is the classification for a nurse in charge of a ward or unit, and that the "in-charge allowance" is payable if a NUM is not rostered on a particular shift, or if certain responsibilities are delegated by a NUM to another nurse in particular circumstances.
4. Put more directly, the Award presumes a NUM will be in charge of a ward or unit, other than by exception.
5. Each party implicitly accepted this analysis through submissions that the conditions for the exception had been made out, or had not.
6. It is clear that, within the bounds of the Award, it is possible to arrange the nursing management structure of a hospital emergency department in a range of ways which would comply with the Award. The evidence from other, similar Emergency Departments shows this. These arrangements elsewhere included NUMs at various levels, and with a range of clinical and non-clinical responsibilities.
7. The evidence adduced in this matter showed clearly that every other comparable Emergency Department included some level of NUM rostered on duty, on the floor of the Emergency Department, at all times.
8. Moreover, the equivalent of the JHH ED Coordinators at each of those other Emergency Departments was a NUM at some level. This was a part of the case put by the notifier.
9. I do not consider the notifier was suggesting the decisions of other hospitals was either binding or a precedent. Any such proposition would have been an overreach.
10. Nevertheless, with JHH ED being the busiest Emergency Department in the state, it allows a useful framing of the issue now before the Commission: Can an Emergency Department the size of the JHH ED be structured such that the JHH ED Coordinators, if correctly classified, will not be NUMs?
11. I do not consider it is possible to do so in compliance with the Award.
12. The structure of the Award provides for a range of different clinical roles and for a range of managerial roles at different levels. It provides for at least two different ways to designate the nurse in charge of a ward or unit which are clearly interrelated and, contextually, clearly exist in a hierarchy. Both the interrelationship and the hierarchy inevitably support the conclusion the JHH ED Coordinators should be classified as NUMs.
13. This is supported, albeit on a more balanced assessment, by a plain reading of the responsibilities within the Award definition of a NUM.
14. That this is the correct outcome is reinforced, although not proved, by the fact that in every comparable Emergency Department in the State the equivalents of the JHH ED Coordinators are classified as NUMs.
15. While the respondent was correct that the evidence was that JHH ED Coordinators likely did not perform all the tasks of a NUM to the letter of the clause 3 definition of a NUM, the JHH ED Coordinators performed all the responsibilities to a leadership standard, most, or at the least a substantial majority, to the NUM standard, and only on a narrow or technical reading of the Award and their responsibilities could it be said that their correct classification was "in-charge".
16. It was clear from the evidence that the JHH ED is a complex and sizeable department. This must be factored into the scale of the role of the JHH ED Coordinators, and that scale must be a factor in the correct classification of the JHH ED Coordinators. Indeed, it is one which weighs heavily in favour of the JHH ED Coordinators being correctly classified as NUMs.
17. Both parties addressed the words in the "in charge" allowance clause relating to delegation of "day to day clinical management". The respondent contending that the NUM2s are charged with overall clinical responsibility, and delegate the day-to-day responsibility to the JHH ED Coordinators. The notifier pointing to evidence that, other than by exception, the NUM2s do not exercise day-to-day clinical management and therefore in fact cannot delegate that management.
18. Given the determination above in the matter more generally, it is not necessary to determine the clinical delegation issue as a legal question. It is clear from the evidence that, as a matter of fact, the NUM2s do not have day-to-day clinical management responsibilities to delegate.
19. The outcomes in this decision relate to the current arrangements at the JHH ED, which it was implicitly accepted by both parties have applied since the re-structure of the JHH ED to create the current roles of JHH ED Coordinators. On the evidence of Ms Tait, the change to the current arrangements commenced in 2013, and was completed by 2014 at the latest.

Orders

1. Accordingly, pursuant to the logic set out previously, and summarised in [55] above: 1. I order, pursuant to s 136(1)(d) of the Act, as empowered by s 175 of the Act, that the correct classification of the Emergency Department Coordinators at the John Hunter Hospital is that of a Nursing Unit Manager 1 as defined in clause 3 of the Award; 2. I direct, pursuant to s 136(1)(a) of the Act, that the parties confer on implementing the order described in [96(1)]; 3. I recommend, pursuant to s 136(1)(a) of the Act, that the respondent re-classify and commence paying the Emergency Department Coordinators in accordance with the application of the Award as set out in the order in [96(1)]; and 4. I direct the parties to prepare draft orders, to be made pursuant to s 380 of the Act, for underpaid wages; and 5. I grant liberty to either party to have the matter relisted on reasonable notice if, after 28 days from this Decision, the parties cannot agree on any of the matters set out in [96(2-4)]. C Muir Commissioner

Endnotes

1. (2104) 87 NSWLR 41 at [27]; [2014] NSWIRComm 41 at [28]
2. [2014] NSWIRComm 41 at [30] 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: 01 July 2022