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

Agreed Facts

1. The parties agreed the following facts for determination of the separate questions: Parties to the proceeding 1. The Plaintiff, the New South Wales Nurses and Midwives' Association, is and has been at all relevant times an industrial organisation of employees registered under Part 3 of Chapter 5 of the Industrial Relations Act 1996 (NSW) (IR Act). 2. Pursuant to sections 115 and 116 of the Health Services Act 1997 (NSW) (HS Act), the Government of New South Wales is the employer of employees in the NSW Health Service, including the nurses and midwives to whom the Public Health System Nurses' and Midwives' (State) Award 2022 (Award) applies as set out in paragraph 11 below. 3. Pursuant to section 5 of the Crown Proceedings Act 1988 (NSW), the Government of New South Wales may be sued in civil proceedings under the name of the Defendant. Background to the Award 4. On 26 November 2010, the Defendant made an application for a new Public Health System Nurses' and Midwives' (State) Award. A copy of the covering letter, Application and draft award is at Annexure A to the SOAF. 5. On 22 February 2011, the Plaintiff and the Defendant entered into an Agreement pertaining to award making and staffing arrangements. The Memorandum of Understanding is at Annexure B to the SOAF. 6. On 23 February 2011, the Application by the Defendant was heard before the Industrial Relations Commission of New South Wales (Commission). During the hearing the Defendant handed up an Amended Application with amendments to the draft award without objection. During the hearing, some typographical errors in the draft award were identified. A copy of the transcript of the Application is at Annexure C to the SOAF. 7. The Application was granted by consent and the Commission made the Public Health System Nurses' and Midwives' (State) Award 2011 (2011 Award) pursuant to section 10 of the IR Act to take effect from 23 February 2011. 8. At page 19 line 9 of Annexure C to the SOAF, the Commission required the parties to file a further amended award reflecting corrections to the typographical errors identified in the draft award. On 28 February 2011, the Defendant filed a Further Amended Application for an Award which corrected the typographical errors in the draft award. The Further Amended Application is at Annexure D to the SOAF. 9. A copy of the 2011 Award is at Annexure E to the SOAF. The Award 10. The Award was in force between 1 July 2022 and 30 June 2023. 11. The Award applied to: (a) persons engaged in New South Wales in the profession or occupation of nursing including midwifery and employed in or in connection with the NSW Health Service as defined in section 115 of the HS Act; and (b) the Government of New South Wales as the employer of those persons. 12. A copy of the Award is at Annexure F to the SOAF. The Data 13. The figures pleaded in the Statement of Claim filed on 15 March 2023 as to the Nursing Hours Per Patient Day (NHPPD) were obtained by the Plaintiff from a document provided by the Defendant in response to an application under the Government Information (Public Access) Act 2009 (NSW) (NHPPD Document). A copy of the application is at Annexure G to the SOAF (Plaintiff's GIPA Application). 14. The cover letter provided in response to the Plaintiff's GIPA Application as well as an extract of the first four pages of the NHPPD Document (by way of example) are at Annexure H of the SOAF. The NHPPD Document included data described as 'NHPPD Provided by LHD' (NHPPD Data) for identified Local Health Districts, Hospitals and Wards between 31 December 2018 and 30 October 2022. 15. The NHPPD Data was calculated by applying the calculation methodology in clause 53 section II(s)1 to 4 of the Award. 16. Some of the NHPPD Data provided in the NHPPD Document was based on outdated or incorrect data. Where there were errors identified in the NHPPD Data, the correct NHPPD figures are set out in the particulars of paragraphs 8 to 160 in the Defendant's Amended Defence dated 3 August 2023. 17. The wards and units that are the subject of this proceeding are wards and units within the meaning of clause 53(iv) section II(a) of the Award, to which 6.0 NHPPD applied as at the date of the pleaded contraventions.
2. It is not necessary to reproduce the annexures referred to in the Agreed Facts. It is sufficient to note that cl 5.1 of the Memorandum of Understanding ("MOU") provided that the parties agreed that the new Award would include a new cl 53 "Staffing Arrangements", and cl 5.2 provided: 5.2 The Staffing Arrangements clause incorporates the following elements for nursing hours wards and units: (i) Nursing Hours per Patient Day ('NHPPD') in general inpatient wards to be 6.0 hours in Peer Group A facilities and dedicated palliative care wards; 5.5 hours in Peer Group B facilities; 5.0 hours in Peer Group C facilities, (noting that these levels of NHPPD are capable of translation into equivalent ratios), accounted for over the period of a week.

The Award

1. Relevant portions of cl 53 in the 2022 Award are as follows: 53. Staffing Arrangements (i) Reasonable workloads are required for nurses to assist in providing a sustainable health system for the people of NSW that not only meets present health needs but also plans for the health needs of the future. (ii) The employer has a responsibility to provide reasonable workloads for nurses. (iii) Principles The following principles shall be applied in determining or allocating a reasonable workload for a nurse: (a) Reasonable workloads will be based on the application of the staffing arrangements detailed in this clause. The arrangements may be the reasonable workload principles alone or, in addition, the provisions set out in Sections II - IX, of subclause (iv) in relation to the services, wards and units to which they apply. (b) Workload assessment will take into account measured demand by way of clinical assessment, including acuity, skill mix, specialisation where relevant, and geographical and other local requirements/resources. (c) The work performed by the employee will be able to be satisfactorily completed within the ordinary hours of work assigned to the employee in their roster cycle. (d) The work will be consistent with the duties within the employee's classification description and at a professional standard so that the care provided or about to be provided to a patient or client shall be adequate, appropriate and not adversely affect the rights, health or safety of the patient, client or nurse. (e) The workload expected of an employee will not be unfair or unreasonable having regard to the skills, experience and classification of the employee for the period in which the workload is allocated. (f) An employee will not be allocated an unreasonable or excessive nursing workload or other responsibilities except in emergency or extraordinary circumstances of an urgent nature. (g) An employee shall not be required to work an unreasonable amount of overtime. (h) An employee's workload will not prevent reasonable and practicable access to Learning and Development Leave, together with 'in-house' courses or activities, and mandatory training and education. (i) Existing minimum staffing levels to ensure safe systems of work and patient safety shall continue to apply. (j) Nothing in this clause prevents a higher level of staffing from being provided when, and where, this is necessary for clinical or other reasons. (iv) Staffing and Specialties The Association and the Ministry agree that the staffing arrangements in this clause and their application may be reviewed and amended from time to time by agreement and that the Award may be varied by consent to reflect any such agreement. SECTION I: REPLACEMENT OF ABSENCES (a) When an unplanned absence occurs (e.g. due to unexpected sick leave) the NUM [Nursing Unit Manager] (or delegate) will immediately review the roster to determine the effect of the absence on workload. (b) Where the NUM (or delegate) determines to backfill the absence, the default position is to fill the absence with a nurse of the same classification as the absent nurse. (c) If all avenues to backfill the absence with a nurse at the same classification are exhausted and the only remaining option is to backfill the absence with a nurse of a lower classification, the NUM (or delegate) must consider how the functions performed in the ward/unit can be safely and appropriately performed by a nurse of another nursing classification. (d) In some circumstances it may be possible to backfill with a nurse of a lower classification. Where it is determined to backfill with a nurse of a lower classification, a record of this, together with the reasons, must be made. SECTION II: NURSING HOURS WARDS AND UNITS … (c) The Association and the Ministry have agreed that staffing will be determined by the Nursing Hours Per Patient Day ('NHPPD') specified below, provided over a week, to determine the number of nurses required to provide direct clinical care. The number of nursing hours per patient day may also be expressed as an equivalent ratio. (d) 6.0 NHPPD will apply to general inpatient wards in Peer Group A1 and A3 facilities, being Principal Referral Hospitals and Ungrouped Acute Tertiary Referral Hospitals, accounted for over the period of a week. (e) 5.5 NHPPD will apply to general inpatient wards in Peer Group B facilities, being Major Hospitals Group 1 and Group 2, accounted for over the period of a week. General inpatient wards in Peer Group B facilities will move to 6.0 NHPPD by 30 June 2023 in accordance with a timetable, determined by the Ministry and provided to the Association once determined. (f) 5.0 NHPPD will apply to general inpatient wards in Peer Group C facilities, being District Group Hospitals, accounted for over the period of a week. General inpatient wards in certain Peer Group C facilities will move to 6.0 NHPPD by 30 June 2023, in accordance with a timetable, determined by the Ministry and provided to the Association once determined. (g) 6.0 NHPPD will apply to dedicated palliative care wards, accounted for over the period of a week. (h) 5.0 NHPPD will apply to dedicated general rehabilitation wards and units, and 6.0 NHPPD will apply to dedicated rehabilitation specialist brain and spinal injury units, accounted for over the period of a week. For these wards and units only, NHPPD includes the hours usually worked by nursing and other categories of staff, however titled, agreed with the Association. (i) 6.0 NHPPD will apply to inpatient adult acute mental health wards in general hospitals which are not specialist mental health facilities, accounted for over the period of a week. (j) 5.5 NHPPD will apply to inpatient adult acute mental health wards in specialised mental health facilities, accounted for over the period of a week. Inpatient adult acute mental wards in certain specialised mental health facilities will move to 6.0 NHPPD by 30 June 2023, in accordance with a timetable, determined by the Ministry and provided to the Association once determined. (k) At the time the new staffing levels referred to in Section II, subclauses (d) to (j) above are introduced on a ward or unit for the first time, staffing levels in wards and units with higher than the specified staffing will either continue to apply or be reviewed. A reduction in staffing will not occur without a review taking place. If there is disagreement between the Employer and Association about the outcome of the review the provisions of subclause (vii) Grievances in relation to workload will apply. (l) The number of nursing hours per patient day may also be expressed as an equivalent ratio which provides the same nursing hours over a week. For example: 1. a NHPPD of 6.0 can provide sufficient nursing hours to provide am/pm/night equivalent ratios of 1:4/1:4/1:7 across seven days, as well as the option of some shifts with a nurse in charge who does not also have an allocated patient workload. 2. a NHPPD of 5.5 can provide sufficient nursing hours to provide am/pm/night equivalent ratios of 1:4/1:5/1:7 across seven days, as well as the option of some shifts with a nurse in charge who does not also have an allocated patient workload. 3. a NHPPD of 5.0 can provide sufficient nursing hours to provide am/pm/night equivalent ratios of 1:5/1:5/1:7 across seven days, as well as the option of some shifts with a nurse in charge who does not also have an allocated patient workload. [Two example tables were then included showing two different ways staff could be deployed to reach the same total hours in a week. The tables also included what were described in (l) as equivalent ratios.] (m) Only nurses providing direct clinical care are included in the NHPPD. This does not include positions such as Nursing Unit Managers, Nurse Managers, Clinical Nurse Educators, Clinical Nurse Consultants, dedicated administrative support staff and wardspersons. (n) In implementing Nursing Hours in Nursing Hours Wards the daily bed census data averaged over a specified preceding period of up to 52 weeks (in whole weeks) will be used to determine the number of patients. In determining the specified period due regard should be given to reduced activity periods, seasonality and other local factors. Where seasonality is a significant factor, the specified period can be the equivalent period in the preceding year. (o) The NUM will distribute the hours/shifts across the day and week in a rostering pattern with due regard to the workload pattern of their ward, provided the applicable NHPPD is achieved over the week. (p) The NUM may distribute the NHPPD to include a nurse in charge who does not also have an allocated patient workload, provided the applicable NHPPD are achieved over the week (q) When, on a shift, the NUM considers that patient care needs cannot be sufficiently met from the nurses immediately available and the NUM (or nurse delegated with responsibility for patient care within the ward/unit) considers additional nursing hours should be provided in order to meet clinical needs, the NUM will inform the appropriate Nurse Manager who, together with the NUM, will consider a solution including, but not limited to, the following options: 1. deployment of nurses from other wards/units; 2. additional hours for part time staff; 3. engagement of casual/agency nursing staff; 4. overtime; 5. prioritisation of nursing activities on the ward/unit; 6. reallocation of patients. When these options have been exhausted and only with approval from the Director of Nursing and Midwifery and the concurrence of the General Manager, the decision may be made to limit admissions when discharges occur from the ward/unit. This decision is to be made as soon as practicable after commencement of the shift. (r) Spot Check 1. In wards and units where the agreed staffing method is NHPPD, information will be available to staff which identifies the NHPPD. 2. At any time, a nurse working on the ward/unit or a member of the local Reasonable Workload Committee may make a written request to the NUM for a spot check to confirm that the NHPPD are being provided. 3. The relevant Reasonable Workload Committee must be informed of the commencement of the spot check. 4. Within 7 days of receipt of such a request the NUM will ensure that each week for a 4 week period the NHPPD provided are posted within 7 days of the conclusion of the relevant period. 5. If, at any time during the spot check or at its conclusion, it is established that the provided NHPPD falls short of the specified NHPPD then action must immediately commence to rectify the shortfall. 6. Where the four week spot check confirms that the specified NHPPD are being provided then the process is concluded. 7. The outcome of the spot check will be made available to the Reasonable Workload Committee. (s) The calculation used to spot check the provision of NHPPD in Nursing Hours Wards 1. To determine the 'number of patients' add the number of patients as recorded for each day in the bed census in the week to be calculated, then divide that total by 7 (the number of days in the week). For example: (24 + 25 + 25 + 25 + 23 + 22 + 24) ÷ 7 = 24 (Number of patients) 2. Then take the applicable NHPPD figure (e.g. 6.0) and multiply it by 7 (for 7 days in the week), then multiply by the number of patients, as identified above e.g. 24. 3. In this example, 6 x 7 x 24 = 1,008 nursing hours or 6 NHPPD. 1,008 is therefore the nursing hours that were required for the ward that week. The figure is then compared to the nursing hours that were actually provided. 4. Assume in this example that 974 nursing hours were actually provided. The required NHPPD falls short as 5.8 NHPPD has been provided instead of 6 NHPPD. In this example, the NUM would immediately commence action to rectify the shortfall in accordance with point 5 of (s) Spot Checks in this Section. 5. The spot check would require the completion of this calculation for four consecutive weeks. (emphasis added)

Principles of construing awards

1. In Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241; [2005] HCA 10, Kirby J said at [96]: The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed (1966) 66 IR 182 at 184.: 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. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. (emphasis in original)
2. In Kucks v CSR Ltd (1966) 66 IR 182 Madgwick J also said in a passage following that quoted by Kirby J: But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
3. The parties largely agree on principles concerning the approach to construing awards. Those principles may be summarised as follows: (a) The interpretation of an industrial instrument commences with the ordinary meaning of the words used understood in the light of its industrial context and purpose. (b) An overly strict or literal approach to construction of industrial awards is rarely appropriate. It is justifiable to read an award so as to give effect to its evident purposes despite mere inconsistencies or infelicities of expression. Meanings that "avoid inconvenience or injustice may reasonably be strained for." (c) Awards are to be seen as beneficial instruments. A generous construction is to be applied over a strictly literal approach. (d) Regard is to be had to the practical consequences that will flow from a particular construction when interpreting the provisions of an award. (e) Context is of significance in interpretating industrial instruments. However, while purpose, history and industrial context are relevant in construing an award, a narrow or industrially impractical interpretations will be eschewed, the task remains one of interpreting a document based on the objective meaning of its text. In that way, the Court is "not free to give effect to some anteriorly derived notion of what would be fair or just". (f) Relevant context includes firstly the whole of the text of the document but also extends to the circumstances in which the instrument was made and its historical antecedents. Nevertheless, awards are construed objectively where the parties' subjective intentions and beliefs are not relevant. (g) The statutory context in which awards are made includes that the Industrial Relations Commission must make awards to set "fair and reasonable conditions of employment for employees" (s 10 of the Industrial Relations Act 1996 (NSW)).
4. However, the search is not for the actual subjective intent of the makers of the instrument: rather, the process of construction must direct attention to the words that are actually used. Expressed intention is to be gathered from the text of the instrument in light of context and purpose. There are limits on the extent to which the resolution of questions of construction may be driven by reference to history and context: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122], [128]-[130]; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 87 NSWLR 41; [2014] NSWIRComm 23 at [115], [127]-[128].

Questions 1 & 2

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

Plaintiff's submissions

1. The plaintiff submitted that the language of cl 53 is mandatory in its terms and consistent only with the NHPPD figures specified being minimum staffing levels that must be met. Attention was drawn to such parts of the clause that provided "responsibility to provide reasonable workload for nurses", that nursing hour awards and units "will be determined by the…NHPPD specified below", that the principles "shall be applied", that the hours could be distributed across the day and week, "provided the applicable NHPPD is achieved over the week" and that the staffing arrangements when reviewed required agreement to amend.
2. The plaintiff pointed to a number of matters in the award to submit that NHPPD thresholds are intended to be binding and enforceable. These include (a) that the function of the NHPPD levels set out in s II(d) to (j) is "to determine the number of nurses required to provide direct clinical care"; (b) the provision that enables the staffing arrangements and their application to be reviewed and amended from time to time by agreement; (c) the statutory context provided by the IR Act and the nature of the Award as an industrial instrument.
3. The plaintiff submitted that the statutory context provided by the IR Act, and the nature of the Award as an industrial instrument indicates its provisions are intended to be binding and enforceable. Industrial instruments are regulated by the IR Act and are intended to be capable of enforcement, including by the imposition of pecuniary penalties in the event of contravention. The nature of an award is to set minimum entitlements.
4. The plaintiff submitted that the industrial history and context in which cl 53, and its historical equivalents were made supports the conclusion that NHPPD standards imposed by cl 53(iv) of the Award were intended to be binding and enforceable. The parties proposed a very significant change to the Award in 2011 as a result of extensive and lengthy negotiations, with the most important changes concerning the provisions dealing with staffing arrangements and nursing workload. The changes involved agreement that staffing would be determined on the NHPPD basis, calculated over a week. The parties sought to introduce minimum staffing requirements in addition to general staffing and workload principles.
5. The plaintiff submitted that the method by which the provision of NHPPD over a period of a week can be assessed is explained in s II par (s). Reliance was placed on what counsel for the State said at the hearing in the Industrial Relations Commission ("IRC") when this award was first put into its present form, and on the fact that counsel for the plaintiff did not disagree with the State's explanation.
6. The plaintiff submitted that par (n) was the measure to be used by the parties when first implementing the new system.
7. The plaintiff submitted that the Court would not construe the Award such that the defendant can fail to comply with minimum staffing provisions which were set by the parties, on many occasions without a contravention of the Award arising.

Defendant's submissions

1. The defendant submitted that the textual framework of the award supports the conclusion that cl 53(iv) s II only requires that the defendant rosters nurses in accordance with the specified NHPPD based on historical patient numbers and then takes rectification action if required on a spot check. The defendant submitted that the award does not require the specified NHPPD be provided on what actually happened over the course of a week. Five reasons were put forward for this submission.
2. First, there is no express requirement in cl 53(iv) s II or anywhere else in the Award that the specified NHPPD must actually be provided at the conclusion of a week. If that was intended it would have been straightforward for the requirement to be set out in that way.
3. Secondly, the key operative requirement in s II(c) ("staffing will be determined") is expressed in the future continuous tense, and that connotes a process or decision rather than a result or outcome. The language is apt to describe planning or deciding a number of nurses prospectively, which is done by rostering.
4. Thirdly, the manner of "distributing" NHPPD is described in s II(o) as being distribution "in a rostering pattern". That reflects the example tables appearing below s II(l), which are expressed as examples of a "roster pattern" in which nursing hours have been distributed to achieve NHPPD. That construction is supported by the proviso to s II(o) and also s II(n).
5. Fourthly, cl 53(iv) s II(q) contains express mechanisms for dealing with adjustments to nursing hours for operational reasons, but these do not refer to NHPPD. The absence of reference to NHPPD in these provisions indicates that operational or on-shift adjustments are separate from the obligation to provide NHPPD, consistent with the view that that obligation operates only at the earlier rostering stage.
6. Fifthly, the fact that cl 53(iv) s II contains an explicit mechanism for identifying and responding to circumstances where NHPPD are not actually met (the "spot check" methodology) is inconsistent with the defendant having a direct obligation to ensure NHPPD are actually met.

Consideration

1. The difference between the parties on the construction of the award was that the defendant submitted that the requirement to satisfy the threshold of 6.0 NHPPD was directed to the rostering arrangements with the spot check arrangement found in pars (r) and (s) employed at the instigation of any nurse on the ward or member of the Local Reasonable Workload Committee, whereas the plaintiff said the requirement must be satisfied in the actual way the NHPPD were being provided. On the plaintiff's view, that required some form of continuous checking using the spot check provisions.
2. The plaintiff's submissions about the mandatory nature of what the Award was stipulating (eg cl 53 (i), (ii) and (iii)) may be accepted. However, given the nature of the dispute between the parties, reliance on those paragraphs is question-begging. The issue is not that reasonable workloads are required, but how that is to be achieved. In that regard, question 1 is not well-drafted by asking whether the Defendant would be in breach of the Award if it "did not provide at least 6.0 NHPPD". Clause 53(ii) makes clear that the defendant has a responsibility "to provide reasonable workloads", which are for this purpose 6.0 NHPPD. The issue is how that provision is to be made, whether by rostering or by actual results on a daily or weekly basis
3. In my opinion, the defendant's position is the correct one. A reading of cl 53 as a whole points strongly to the conclusion that the award seeks to achieve the reasonable workloads by a proper rostering arrangement along with the facility for monitoring by reason of the spot check in pars (r) and (s). My reasons are these.
4. In the first place, I accept the defendant's submission that s II par (c) is forward-looking language concerned with rostering to give effect to the reasonable workloads constituted by the agreed NHPPD.
5. Secondly, the focus of ss I and II is rostering. Section I concerns unplanned absences. Such an absence requires an immediate review of the roster to determine the effect of the absence "on workload".
6. Section II pars (n), (o), (p), and (q) all emphasise the centrality of rostering in relation to the achievement of the appropriate NHPPD. The plaintiff's submission that par (n) is effectively only used when the new staffing arrangements are put in place should be rejected. Given the terms of par (k), which makes specific reference to the time when the new staffing levels are introduced, par (n) would have no work or almost no work to do if it was confined to the outset of the new staffing level arrangement. The difference in language between pars (k) and (n) is of some assistance in construing (n) as not being confined to the introduction of the new arrangements.
7. Further, if, as the plaintiff submits, compliance with the terms of the award relates to actual staff numbers, historical averages provided for in par (n) would not be relevant. Nor could historical averages simply be used as a guide. The wording of par (n) is that the historical figures "will be used to determine the number of patients". That wording may be compared with s IV par (c) which reads: When determining the nursing FTE the following should be considered: 1. The previous 12 months activity should be used as a guide… If historical averages, as provided in par (n), could simply be used as a guide, one would have expected words similar to s IV (c).
8. It is significant in that regard that par (n) appears in s II in the position it does, and its wording may be contrasted with what appears in par (k) ("at the time the new staffing levels referred to s II, sub-cl (d)-(j) above are introduced on award or unit for the first time, …"). The wording in par (n) is not confined to the introduction of the new staffing levels but is clearly concerned with the ongoing implementation of the nursing hours.
9. Paragraph (q) is important, because it deals with what happens on an actual shift and provides for what can be done to ensure that the reasonable workloads are met when, absent those adjustments, they might not be met. That presupposes that the appropriate arrangements had previously been made on the assumption that the planned or rostered nurses had been available. That again focuses on rostering.
10. Further, that the requirements relating to NHPPD are focused on rostering is reinforced by the example Tables under par (l) which make express reference to "this roster pattern".
11. Thirdly, it is significant that the spot check provided for in par (r) is only able to be implemented if a nurse working on the ward or a member of the local Reasonable Workload Committee makes a written request for such a spot check. That a written request is required for the spot check to be engaged is also consistent with the requirement of the Award in relation to NHPPD being concerned with rostering. It is a protective and/or an enforcement measure enabling any nurse immediately affected to have checked what has been put in place to achieve the NHPPD for the ward concerned. It presupposes, however, that there is already some purported compliance with the requirements of the award. In that way it supports the defendant's construction of the award.
12. In the absence of such a written request there is no mechanism for that spot check to take place. That strongly undermines the plaintiff's submission that the NHPPD is to be achieved by the use of the spot check method on an ongoing basis. If the preparation of the roster is not the method to achieve the NHPPD, a vacuum exists for how that is to be done. The plaintiff did not explain how the spot check process could be engaged other than by the written requests identified.
13. It may be observed that the spot-check method only results in a correction after the completion of the week which is being checked. It is at that time that action must immediately be taken to rectify the shortfall. It may be, as par (r) envisages, that a shortfall is only able to be detected after the four-week period provided in the spot check. Those matters tell against the plaintiff's submission that cl 53 is concerned with breaches occurring by a shortfall in actual NHPPD as opposed to the rostering arrangement. The defendant would likely not know that a shortfall had occurred until after the week (or up to four weeks) when the bed census was calculated, with the result that it might constantly be in breach. Such an outcome could not have been intended.
14. If, as the plaintiff submits, there is an ongoing obligation to monitor the actual position every week, the procedure set out on pars (r) and (s) would not be necessary. On the other hand, the combination of pars (q) and (r) enable compliance with NHPPD as a result of the rostering system being checked and adjusted as required.
15. Fourthly, it does not seem to me that either the MOU or what appears on the transcript of the hearing in the IRC on 23 February 2011 is of any assistance in determining which of the competing approaches is the correct one. The MOU is expressed in more general terms than the award, as one would expect. It says nothing about how it would be decided that the matters in the MOU had been achieved or were to be achieved.
16. The plaintiff said that the transcript of the hearing before the IRC was not put forward by it as a common understanding; rather, it was to explain the intent of the parties in their agreement. In the light of what was said in King v Melbourne Vicentre Swimming Club and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (above at [19]) I doubt that the transcript is admissible unless, possibly, where there is ambiguity in the terms of the award. I do not consider there is any ambiguity. The matters I have identified are, in combination, strong support for the defendant's position.
17. But even if the transcript is admissible, it does not seem to me that anything said to the IRC in outlining the terms of the award throws light one way or the other on the construction of cl 53. Despite the focus by counsel for the State on the dynamic situation of staffing and the spot check method (see at T 7), the focus of counsel for the present plaintiff was on the rostering system (see at T 11). In any event, for the reasons given, the spot check method cannot be construed as the default method of implementing the NHPPD arrangement. It can only occur when something else is in place, and a written request is made by the persons permitted to make it. That rather suggests that counsel for the State before the IRC misunderstood the way the spot check method worked.
18. Finally, the construction put forward by the plaintiff is impractical and unworkable in the sense that breaches would be occurring without any party's knowledge until after the event. It would require constant (ie daily) monitoring in an endeavour to ensure that breaches did not occur. Where civil penalties apply for a breach, that cannot have been intended by the parties.
19. The defendant submitted, as an example of the difficulty that would result from the plaintiff's construction, that if on the last day of the week it became apparent that there would be a shortfall in actual NHPPD based on actual patient numbers over the course of that week, more staff would be required in order to increase the weekly average, even if that staffing was unnecessary for that last day. Alternatively, patient beds would have to be closed for that day. I agree that this would be the required outcome to avoid a breach. Such an outcome cannot have been intended.

Conclusion

1. In my opinion both questions 1 and 2 should be answered No. In those circumstances question 3 does not arise for consideration.
2. The parties agreed that if question 1 was answered in the negative the proceedings should be dismissed.
3. The parties agreed that the question of costs of the proceedings should be reserved to be argued or agreed at a later time.
4. Accordingly: 1. I answer question 1, No. 2. I answer question 2, No. 3. It is not necessary to answer question 3. 4. I dismiss the proceedings. 5. I reserve the question of costs.

Amendments 30 May 2024 - Typographical error in catchwords on title page 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: 30 May 2024