Rowe, Hedley Gordon & Anor v Capital Territory Health Commission [1982] FCA 4

Federal Court of Australia|1982-01-14|Before: Keely J

Industrial Law - breaches of award - failure to pay award wages - respondent contending student nurses not employees

but grantees of scholarships - whether employees where primary purpose of arrangements is to teach - whether respondent had power to grant scholarships - whether breaches arose out of a course of conduct.

HEDLEY GORDON ROWE v. CAPITAL TERRITORY HEALTH COMMISSION (A.C.T. No. 2 of 1981)

JUDITH ADELLA COONEY v. CAPITAL TERRITORY HEALTH COMMISSION (A.C.T. No. 3 of 1981)

Coram: KEELY J. Date: 14 January 1982 Place: Melbourne

A al en RRR RR Eire PIE RON RATT AAR At AYR ee a EE A RN NY Rt Ate

The Capital Territory Health Commission (the respondent

RR RET ET RET RET ETT DRIMETENEe TRE Ln remeron eee ae Re ee re ee ee yr

ae SS a Nc SL I RNR lt nS NL IO hE Ee ne aie ate ht dn tarred sm Ol

commission) by its defence admitted that it is and was at all material times a body established by the Health Commission Ordinance of the Australian Capital Territory capable of being sued and that it is a party to the Hospital Employees etc. (Nursing Staff A.C.T.) Award 1980 and was a party to previous relevant awards. The current award was made on 16 February 1981 and was expressed to operate from the beginning of the first pay period to commence on or after 17 November 1980. It superseded, inter alia, the Hospital Employees etc. (Nursing Staff A.C.T.) Award 1966 and it was not disputed that the two awards were in substantially the same terms. In these reasons the word "award" may be used to refer to either or both of the awards as the context requires; 1f 1t becomes necessary to refer to only one

In matter number A.C.T. 2 of 1981 the applicant is Hedley Gordon Rowe, and in matter number A.C.T. 3 of 1981 the applicant is Judith Adella Cooney. The respondent commission admitted that the applicant Rowe is an officer of the Hospital Employees' Federation of Australia (the H.E.F.), that the H.E.F. is an organisation registered under the Conciliation and Arbitration Act 1904 (the Act) and that the applicant Rowe is authorised by the rules of the H.E.F. to sue on its behalf. Similarly, the respondent commission admitted that the applicant Cooney is an officer of the Royal Australian Nurses Federation (the R.A.N.F.), that it is an organisation registered under the Act

and that the applicant Cooney is authorised by the rules of the

AE ETE INI RE. RRR er oe ny turer] peo. ee es ee mee. me mm ee eee ee ee

number of students would do at any one time. It was not a picture of what one nurse would be required to do at any particular period of allocation to a ward". I accept as

accurate the descriptions by both Miss Simms and Miss Pfeiffer

of the work performed by them as student nurses in the hospital and other places in obtaining clinical experience. It is convenient to refer to that work in hospitals and other places

Le rR re tne Sn RR rR RE Te SERN Rm ens mar ce een mem fnew - mane armen waren SS SO ERATE wp

RENE Le ORE ROT ae a Om Ce Ue erm rene ye 2 a te ene

I find that both Miss Simms and Miss Pfeiffer, notwithstanding that they were "supernumerary" to the roster for the ward, did in fact perform as part of their normal work in the wards (in which they were obliged to wear uniforms) and other places to which they were sent by the respondent commission, a great variety of tasks which constituted general nursing care of persons who at the time were patients of the respondent commission. They were "subject to the directions of senior staff with respect to the actual tasks they performed and the manner in which they performed them". The nature of the duties performed by them can be shown by a fairly brief summary of the tasks normally performed by Miss Simms in giving general nursing care to the respondent commission's patients who were

Patients allocated. The names of Miss Simms and any other student nurses were written down by a tutor sister in a book containing the names of the rostered staff. The charge sister at the commencement of the shift, normally allocated the trained sister(s), student nurse(s), nursing aide(s) and/or pupil nursing aide(s) to the patients in a particular ward or single rooms. The allocation of the student nurses was normally done in consultation with the tutor sister. In the evidence some witnesses spoke of the student nurses being allocated to patients and others spoke of the patients being allocated to the student nurses but the practical effect was the same whatever

way the "allocation" was described by a witness. Further, a

ends Pe rs nt ad A rm a tne ee en Nae nr ne me dee dat Ream me a wats wt aas Salt

trained sister was normally allocated to eight patients including the four (sometimes six) patients allocated to a student nurse ~ under the supervision of the trained sister. It was normal for them to start at the time the shift in the ward started and they were "expected to do so" (Mrs Pinder). They could, however, on request start at a later time. I shall refe. later to the responsibility of the student nurse. Miss Simms and the others so allocated wrote down the names of all 20 patients in the ward, together with particulars of their diagnoses, e.g. whether they were to have X-rays or other tests,

whether they were fasting for theatre or to be discharged.

Recording observations. At prescribed intervals she took

the temperatures, pulse rates and blood pressure readings of the allocated patients and recorded those observations on charts which were kept by the respondent commission as a record of the

Preparing patients for theatre. Before patients were

taken to the operating theatre she explained to them what would happen before the operation and told them what tubes they would see attached to them when they became conscious after the operation. She also informed the patients what physical activities, by way of physiotherapy, they would be expected to perform after the operation. She ascertained whether the patient had signed the form giving his consent to the operation

and attended to the shaving of the patient (if necessary) and to

NS eer aad a ee cana ees gamer err RIN Bell ere er ee ae 8 es nd Em wo ee eee

the appropriate attire of the patient for the operation. With a

trained sister present she gave the injection containing the

pre-medication and instructed the patient not to get out of bed

doubtless because of the danger of a fall by reason of the

effect of the injection. Then she accompanied the patient to

Duty in operating theatre. Miss Simms worked for eight

successive weeks in the operating theatre. For four weeks she acted as a "scout" nurse, getting items from outside the theatre for use during the operation. For the remaining four weeks she acted as a "scrub" nurse in gown, cap and mask - handing instruments directly to the operating surgeons. She was "responsible for checking that the consent is signed and for the

right operation on the right side and that the times are

correctly recorded" (i.e. the times that the operation commenced and finished). She also participated in the count of the instruments and other items used in the operation to ensure that

Dressing wounds and pressure area care. When a patient

allocated to her had returned to the ward after an operation, Miss Simms dressed the wound. If the patient was confined to bed her responsibility included, at specified intervals, pressure area care, whether by posture change or masSage, to

Ls anid ene co aes Be aakaten ia neal an em cad metic anaelinas ames eanacantadaadiiicbaneriha: teiectiasediieate teatime aiecdiestenelcanee oceadcecallicaet saiee ieee anellienticmtehemmehemeieendinndineimnaneamensemtaetnen tai ite |

ne ae ne lene ON mn ele OO nee etre eee ene es nmin On e o one wae

ce ns ee ee er oe aS ome RR EN NNER LOA AE oi A nats ky nt a

Sena nd mic ni nc ctdeacen be ham ane tnd leh anaeae nena dabidiadneeaieneinemnimemeet ener eee nore - .

pent nen ae ne NN ee ee ee tn eae ee ee ee ee eee aus ee

Intravenous drips. Miss Simms gave details of her work in respect of patients with intravenous drips. She was responsible, among other things, for checking with a trained sister that it was "the right flask, the right type of fluid ... the right number of drips per minute". She also had to ensure that "the cannula remains in situ, is not ... pouring out in to tissues", In the latter event she took remedial action immediately, slowing down the drip, and notified a resident

Fluid balance records. When a patient allocated to her

had a catheter Miss Simms recorded on a fluid balance chart, kept by the respondent commission as part of the medical records of its patients, the input to the patient from the intravenous flask and the output into the catheter bag. The patient's doctor was notified of any disparity between input and output

when the amounts were compared after 24 hour periods.

respect of patients allocated to her included at times (depending upon the condition of the patients) sponging them, "personal hygiene in general", helping them with their meals - "perhaps feeding them" - and brushing their teeth. She had to keep the patients clean or, if they were incontinent, "make sure

that they are as dry as possible and as clean as possible at all

LY Wee ah einer teens cere tebintt raat Bee manera! sane fin AL Outten ne

Tee PN NEE ES RE AEE LET AATMTE BR Te RTRM eB nN ee mete ee eet ee at ee ae eet ee me ee meee mee me Rt are

Giving medications. Miss Simms gave evidence as to her role in conjunction with a trained sister in giving "medications" after she had passed a medication round recognised by the Nurses Registration Board. Medications were usually given 2 hourly - starting at one end of the ward with the "medications trolley" which contained medications to be taken orally. She would stay with the patient to ensure that the pill, tablet or other medication was in fact taken. She gave injections to patients with a trained sister present, having done so during her first period in a ward and has "been doing it ever since". She had taken patients on her own to the E.C.G.

room and also took patients down when they were to be

discharged. Doctors' rounds. When doctors called to make their

rounds if the trained sister was unavailable (e.g. because she

was with another doctor) Miss Simms would accompany the doctor

and then he will say, 'In that case I would like such and such done'. .e«. one example ... varicose

ulcers on his feet ... he was my patient for that particular day and there were quite a few doctors

that came to see him that day ... There was a skin specialist, there was an ordinary doctor and his . . . . . specialist and, yes, I took

instruction from all of them as to his positioning during the day and his skin care, also which way his dressings were to be done in the morning and at night and tnen he had a medication change as well which we talked about. ... (If there is no trained sister present) I will report, of course, what the doctor said, (a) in the notes and, (b) to the

a certains Noe GE Der ee he et te ee te Ol a Me ee TS

"... And down in casualty you work very closely with the doctors down there and they will see a patient who has come in with a cut or whatever or a sprain and the doctor will say to you, 'Nurse, bandage this person's arm or elbow, please'.""

Writing reports. Miss Simms at the end of each shift wrote reports on allocated patients which were countersigned by a trained sister, normally without adding anything to her report. Nursing aides were not permitted to write reports on

Responsibility of student nurses. Although the student

nurses worked under supervision and with tutorial and other assistance from nurse educators, I accept Miss Simms' evidence

"We were responsible for what we do to the patients, we are responsible for our standards but ultimate accountability I guess lies with the charge (sister) as does with all the student nurses.

(Mr Dalton) You have a duty to do such things as you do with respect to the patient as well as

you can in the circumstances?---Yes, correct." (1T210)

Similarly, Miss Pfeiffer agreed (T271) with Mr Dalton that "nurses have a fundamental responsibility to ensure that the

ward is kept hygienic". In his reply on behalf of the

TA LION UN TREN TTL EERO OE ETM AI FY ATT ON RAT he OG warn

sea alah rae ate me Ce Mee re - _ - fe ee ee ee ae ee ee

respondent commission to the applicants' final addresses, Mr

"Tt is not our case, your Honour, that there was somebody looking over the shoulder of each of those students throughout the course. »e. and as their training progressed their need for such supervision diminished. Indeed, it was part of the training that she would perform higher skills without direct Supervision in order to allow her to exercise initiative."

Miscellaneous duties. In addition to the foregoing Miss

Simms gave evidence of her duties on dusting rounds, of cleaning Patients' bedside tables and lockers, of bedmaking rounds, of washing bed pans, of scrubbing bed frames (after the discharge of a patient) and of running messages to places such as the pharmacy to "speed things along". It will be necessary to say

Miss Pfeiffer, who had heard Miss Simms' evidence-in-

chief, gave evidence of those tasks detailed by Miss Simms which she had not yet performed. She also gave detailed evidence which I accept as to her duties as a student nurse. She had been working for three weeks at Allambee Nursing Home and had previously performed the same duties there for five successive weeks. One wing was for psychogeriatric patzrents, another for "patients who are fairly ambulant" and the third wing was "mainly a male ward" including patients with senile dementia and others considered psychogeriatric. Her participation in basic

nursing care for them involved "maintaining their hygiene ...

Nica ee aatnhe/ dn, ender ae aed hk Ate ena rr eh tl ne Riera atelier cte LeN nenelN t a t e

pe ae At ee ee cet cit St aaah ie ee ee ne ee ee Binet

their hydration, their general well-being" which, because of the nature of their condition, involved more than one bed round per shift - sometimes three rounds. Such a round, which included changing soiled linen and washing the patients when necessary, used to take one to one and a half hours. She also used to spend about one hour per shift in bathing or showering the four or six patients assigned to her "and then if help is needed we then help with any baths or showers" of other patients in the

On their evidence, which I accept, it is clear that generally speaking the two student nurses, in the hospital wards and other places to which they were sent by the respondent commission, were performing work which was an essential part of the services provided by the respondent commission to its patients. They were doing that work generally on three days per week ~ although the number of days varied from nil (e.g. during the initial study block) to five days per week. Although there was some evidence to the contrary, I accept that they worked as part of the nursing team, the function of which was to furnish the best possible patient care. Miss James did not regard them

as being part of the "work force" in the sense of persons

Planned to be used or rostered for the wards, but agreed that the two student nurses were "engaged in the overall provision of health care at the hospital". That work, if not done by the two

student nurses, would have been done by other persons who were

admittedly employees of the respondent commission, namely

trained sisters or enrolled nursing aides or pupil nurse aides. The latter were employees whilst they were being trained as nursing aides. Mr Dalton in his address submitted that even 1f, contrary to his submission, Miss Simms was held to be an employee, Miss Pfeiffer was not an employee. He relied upon certain differences in the activities of the students, the terms and conditions, the curriculum and the "subsequent actings" of

the parties (per Lord Fraser in the A.M.P. Society Case (post)).

Having considered the differences, including all of those Matters to which he referred, I am unable to accept this submission. I accept Miss Simms' evidence that, having worked alongside students from the 1981 course, she was unable to observe any difference in the way those students were treated,

The respondent commission contended, based upon its evidence, that student nurses in performing these tasks were "not giving a service to the hospital" because it was part of the student nurses' "clinical experience as directed by the nurse educator". There were some differences in the way in which the respondent commission's witnesses expressed the criteria which determined whether particular work by a student nurse was "service to the hospital" (or "service to the ward"). The respondent's difficulty on this aspect is illustrated by the following evidence (T811-3) by the respondent's witness Mrs

McQueen, a senior nurse educator with post graduate

eR EAB Rel Pd tae alee dP mele staan Lathan sancti meeNinitnne bien

iH ~ - a ott ee estan nee - a met wee tee tee ee ene ee ecole SSH

"And there is gradual accumulation of skills?---Yes.

Some of which build on others and some of which are not built on others but integrated, if you

And that goes on throughout the entire course until graduation?---It does,

And indeed for the rest of the nursing life, does it?-~-It does.

But once the nurse has finished graduation that learning process which continues occurs in the course of giving a service to the hospital, does it not?---It does.

And before that, it is not in giving a service to the hospital, is that what you. are saying?-~-For supernumerary students, that is correct.

Just consider, would you, the position of a graduate nurse and a student nurse sponging patients, two of them, one in each bed. If the graduate nurse is learning something while doing that, she is learning it in the course of giving a service to the hospital, is that what you are saying?---That is correct.

The student nurse, if it is part of his or her patient care clinical experience as directed by the nurse educator, 1s not giving a service to the hospital in carrying out that task, is that right?---That is right.

What if it (the bed) is to be made because Mr Brown has wet his bed and they simply want Mr Brown's bed changed?---That 1S service to the hospital.

Even if the student understands that the purpose of the change is to make Mr Brown comfortable, hygienic, to get everything cleaned up and to Make him presentable for his relatives who are coming to visit him shortly. It still is a service even though the student understands it fully, is that right?---It is not a

an ete ee - - ~ - nae at teen ate cents eee wr ewe Pee

SO, Setanta el ek in La al el Se lle end A Ah fee Nee ene atAL Ae t A R NRLAA t Re

4a tr 8a le ec mee memati eatin meee ladaieh ie ameemeiend imate ~ - - - ~ - ~ smemeniain Soins)

~ student's assigned patient. It is a service if Mr Brown is not a_ student's assigned

patient or allocated patient."

In my opinion the error in this contention is that it assumes that if a task carried out by a student nurse is part of the learning process for the particular student nurse, (or, as it was expressed by a number of the respondent commission's witnesses, "a valid clinical experience" for her) then it follows that the performance of that task cannot be "service to the ward". That contention assumes that the two concepts of "learning experience" and "ward service" are mutually exclusive. I am quite unable to accept that assumption. In my opinion the "one activity may be both part of "a valid clinical experience" and also "service to the ward" whether it be taking the temperature, pulse or blood pressure of a patient, attending to his hygiene, his bed making and pressure care, to his pre-operative or post-operative care in all its aspects or working in the operating theatre as either a "scrub" or a "scout" nurse. That which is a "valid clinical experience" looked at from the point of view of the student nurse may also be part of "ward service" looked at from the point of view of the respondent commission's obligation to provide "health services" to the patients in its hospitals. In my opinion those tasks were "ward service" when they were tasks which, if not performed by her, would have been performed by a trained sister or a nursing aide - and so performed because the task was a

necessary part of the general nursing care required to be given

pe ne ete te nt ne ne ee ee ee aR ern! nn te wu eenmseerhatie Sa

BM al aL tela ge etal lt ge eRe hn cate thle deca at ee - tn ep enfin a Bn Na Naina Lanna

by the respondent commission to its patients. In my opinion, most of the tasks performed by Miss Simms and Miss Pfeiffer

were "ward service" although that would not be so in some

circumstances, e.g. when they were merely watching a trained sister demonstrate a technique. I have reached that conclusion notwithstanding the evidence that the work in the wards is performed without the need for additional staff when the student nurses are not in attendance - because trained sisters work faster than student nurses and do not have to. spend time instructing or supervising the student nurses. However, the fact that the respondent commission can operate the wards

without student nurses does not alter the fact that the student nurses perform tasks in the wards which are a necessary part of

the general nursing care which the respondent commission is

On the respondent's own case it is clear that, under the supervision of a graduate nurse, the two student nurses were responsible (in the sense which I have discussed earlier) for the basic nursing care of the patients allocated to them. It was not suggested by the respondent commission or by any of the witnesses called by it that the student nurses were present in the wards merely "to watch - to see how things are done" - per

Lord Denning M.R. in Wiltshire Police Authority v. Wynn [1981] 1 Q.B. 95 at p.109.

In this connection the respondent commission called as a

2 ERNIE RI OL A LATO RAR EAT R RRO EME et AR ST EN NN Ae

witness Mrs Wishart, a trained sister with post graduate qualifications, who was 1n charge of the orthopaedic ward at the Royal Canberra Hospital. Two student nurses from the 1981 course had been in her ward as part of their clinical consolidation unit quite recently for five days per week for three weeks. Aithough she said that nurse educators in referring to the student nurses had stressed "their supernumerary Status", she gave evidence that they were allocated three or four patients and they undertook that basic nursing care under the supervision of a graduate nurse, She explained (T615-7) that the "basic nursing care" given by the

with meals, such tests aS were necessary, preparation for theatre, receiving them back after theatre, observations necessary and ordered at the

time, basic dressing techniques if they were qualified to do them. ...

«+. they were responsible for the cleanliness and safety of their own patients which is a basic requirement of all nurses. They would have undertaken such cleaning as was necessary for their own patients. eee

«.«. they had the overall care of the patient. ... ».. they were under the care of another member of staff usually a graduate who also had the care of

eight patients, four of whom would have been under the direct care of the supernumerary nurse."

Notwithstanding the evidence to which I have referred the respondent commission contended that the student nurses were

"not part of the work force" and were "different". Mrs Wishart

Le PARE RTROETRER Dg RE IE ESET RRR RT A NR - a - oe ee

nad ew ee a ee ee ee ee ee ee Ne ee le nt ate in Ne Die

"The number of patients they are allocated, in the first place; the fact that the supernumerary student has a graduate overseeing the work

that she does; that they cannot be shifted around the ward to suit my convenience or the convenience of the patients or the loading of anything else; and that they can be taken off the ward at any time for lectures or further clinical experience.

But subject to those things, as far as the actual duties that they perform in the ward are concerned, what they do is no different to

what members of the workforce do?~--For their own patients, no."

In my opinion those "differences" did not have the effect that

Other witnesses called on behalf of the respondent tried - and tried vainly in my opinion without any fault on their part - to support the contention by drawing a distinction between a "valid clinical experience" and "service to the wards". Mrs McQueen (to whose evidence I have already referred) did concede, under cross examination as to tasks which were "clinical experience" for the student nurse, that "indirectly, it could be termed as service to the hospital but if the supernumerary student were not there to perform that task another member of the staff would". Also, Mrs Pinder, a nurse educator employed by the respondent commission at the Royal Canberra Hospital, conceded under cross examination by Mr

Nicholas "that matters which contributed to the efficient

an ais EB iA De aR OR HA RSP Sat IL ch SA la es arsine ln eg ls It Ne leet a er wn rar tate meet UNE,

Om OO Sy Se UR Sen DEO OT OES OO Tne FE SOON TODDS PaaS

operation of the ward would be of benefit to the patients in it". Apart from these statements it is fair to say that each witness for the respondent commission appeared to assume that, if an activity could fairly be described as being "a valid clinical experience" for the student nurse, then it necessarily followed that it could not be said to fall within the category of "service to the wards" - even though precisely the same activity (looked at from the point of view of the respondent's obligation to provide service in the wards to those persons whom it had admitted as patients in its hospitals) would undoubtedly be "service to the wards" if the activity were carried out by a

To my mind such an assumption is simply not sustainable. It is not correct to assume (either as a matter of logic or of language) that the one activity by a student nurse cannot be accurately described as falling within both categories. An activity of an apprentice (or an articled law clerk) may well be both valid practical experience for him as part of the process of learning his trade (or profession) and yet, at the same time, be fairly described as providing a service to his master or aS providing, on behalf of his master, a service to the master's client. Nor is it any less a "service" that the activity of the apprentice has to be supervised by the master (directly or through other employees) or that the "service" provided by the apprentice or law clerk, either to or on behalf of his master,

has to be checked or counter-signed or certified by the master

Lastly, I find on the evidence that the two student nurses performed tasks which were plainly not part of a valid learning experience. I refer to the evidence of the student nurses cleaning bedside tables and lockers, scrubbing bed frames after the discharge of patients, participating in dusting rounds and bed making rounds through the ward including patients not allocated to the student nurse, washing bed pans (as distinct from making necessary observations), running messages to places such as the pharmacy, handing out menues, distributing tooth mugs, cleaning dentures, preparing and taking supper to the patients when on evening shift and performing "extra duties" on "quiet" days, e.g. cleaning thermometers, the poles from which the intravenous bottles hang and getting intravenous bottles from the storeroom to restock the ward. I make that finding notwithstanding certain evidence called by the respondent commission which suggested that there was a valid learning experience in almost every task performed provided that it "related" to a patient allocated to the student nurse. For example, Mrs Wishart answered "Yes" to Mr Nicholas' question "Thus whatever you have seen students doing in wards under your care you would consider to be related to the provision of patient care, would you not?". Miss Norrie, a nurse educator, said that "provided a function is related to the care of a patient or patients it is part of the learning experience ...".

However, she said that scrubbing wheels on a trolley and running

A AED Vane enh na hn Label Laat LA Matte al a ath ania an emerndenls Sb Aemn dl

I am not prepared to accept Mr Dalton's sumission that on

the evidence such duties were occasional happenings and not

significant enough to constitute the service of an apprentice to his master. In my opinion, notwithstanding the evidence that the student nurses were instructed to inform the nurse educator if they considered that they were being "used for ward service", the two student nurses were employed to perform work which included those duties which I have just listed. Witnessés called by the respondent classed almost all of those tasks as "valid clinical experiences". In my opinion, by reason of those duties, they were employed under the award even if, contrary to the opinion which I have expressed, the other duties in the wards were not "service to the wards" and accordingly not service to the respondent commission because they were valid

I turn now in more detail to the arguments advanced by Mr Dalton in support of his submission that the student nurses were simply the grantees of scholarships and were not "employees". He cited a number of cases and relied strongly upon Wiltshire

Police Authority v. Wynn (supra). In my opinion that decision

is distinguishable for a number of reasons. They include the following: (a) the particular statutory provisions which the Court of Appeal had to construe. As Lord Denning M.R. said (at p-108) "It cannot have been intended that police cadets should

have recourse to industrial tribunals and probationary

ee re ern em nnn te tet Vietnam nee serene memati eaentnadntaasiesalalecs anaes,

constables should not ... both ... are on the same footing"; (b) the "very special position in our system" occupied by a police constable - per Lord Denning M.R. (at p.109) citing Viscount

Simonds in Attorney General for New South Wales v. Perpetual Trustee Co. Ltd [1955] A.C. 457, 489-490; (c) the particular

facts there under consideration - unlike the student nurses the police cadets were "there to watch ~- to see how things are done e+e sometimes they help in a minor way ... to see how the job is done ..." per Lord Denning M.R. at p.109 (see also Waller L.J. at p.lll); (d) the nature of the police cadetship was such that the police cadets, unlike the student nurses, were "in no way at the conclusion of their cadetship qualified to become a police constable ... not possible to say that the applicant was an apprentice, or anything approaching an apprentice" - per Waller L.J. (at p.111) - see also per Lord Denning M.R. (at p.109) - "They are not being taught a trade such as would make them an 'apprentice'". Accordingly, in my opinion the decision of the Court of Appeal does not support the respondent commission's

decision of the New South Wales Industrial Commission in Court

Session (Beattie J., President, Sheehy and Sheldon JJ.) in In re

Crown Employees (Technical Teachers) Award (1974) 74 A.R.

(N.S.W.) 450. However, in my opinion that case is distinguishable on its facts and does not enunciate any

principle of law which supports the respondent commission in

[ier ane amadt adabencoledcnemcamtonenaeaa apeciaeeseeaehaaemenda dhe detain ieieenedae adenine eam aetemieenen ieee ne

this case. The Industrial Commission said (at pp.460-1) "What has to be determined is whether during the period of training specified in (a) above he is performing basically work in an

industrial sense and, if so, for whom". In the present case it is not necesary to consider whether the student nurses were performing basically work in an "industrial" sense because s.5(2) of the Seat of Government (Administration) Act 1910-1973

"(2) For the purposes of the application of the Conciliation and Arbitration Act 1904-1972 in accordance with the last preceding sub-section-

(a) a person employed, otherwise than in an industry, for the performance of work wholly or mainly in the Territory shall be deemed to be an employee in an industry; ...

"Tt is clear that trainee teachers are not part of the Teaching Service as defined in the Teaching Service Act and to regard persons who for some years are devoting most of their time to the pursuit of courses in academic institutions as part of an organization which 1s a government department would require language to be strained."

Such a statement cannot be made of the student nurses to whom the respondent commission had itself (not through a separate

the development of a competent beginning registered nurse (practitioner) through correlation of theory and practice.

To develop the student's ability to recognise individual needs and effectively apply the components of the nursing process to the delivery

of patient centred care through participation in the activities of the health care system."

On the evidence before me the student nurses were not "persons who for some years are devoting most of their time to the pursuit of courses in academic institutions" whereas "the greater part of a trainee's time is spent in pursuing his or her academic course by attending lectures, etc. and in study related to the course" [1974] A.R. at p.464 - see also p.463. Further, on the evidence of the tasks performed by the student nurses in the wards, to which I have referred at some length, it does not require "language to be strained" to regard the student nurses as part of the respondent commission's organisation -

The trainee teachers were held (at p.470) to be "not part

of the Teaching Service as defined in the Teaching Service Act";

here the Nurses Registration Ordinance 1933 expressly contemplates (s.22) the attendance at approved hospitals of persons admitted to a two year or three year "course of training in the cheory and practice of nursing". I accept Mr Ryan's submission as to the distinction between on the one hand a

student who attends an academic institution which gives

educational instruction only (as distinct from "practice

Ne eRe CRT EMT WNT PO, PS COT ERTL oe & oem me mn mare My - ne

Dee bREGACES gE ec Dh eed RE A Ah ed ON Dare AL kd a aN detente aatentnentninn smi tet Beet ok Sue Mls oe Anette A nttente Narmeny man nteeta te Res mem wry ara ns me A RE AEN et Pm le NEA team.

cane Ae Red oN Cee _ - wo pied ae wee an een eres core wares bse

PERE TES GEE Te sees Cee errr er: - ~ _ a aenn call

: teaching" to which the Industrial Commission referred (at p.463)) and, on the other hand, either a person apprenticed to a Master carrying on a trade or profession in which he offers

"person who (a) attends, for not less than three years ... the practice of one or more hospitals approved by the (Nurses Registration) Board as training schools for general nurses; (b) undergoes, during the attendance ... the prescribed course of training in the theory and practice of nursing ..." (s.22(1) of Nurses Registration Ordinance)

Further, the Health Commission Ordinance 1975, defined "nurse" as meaning, inter alia, "a person who is employed by the Commission and who is ... (c) a pupil nurse ... within the

It is convenient at this stage to deal briefly with a further submission advanced by both Mr Nicholas and Mr Ryan, namely, that the respondent commission had no power to expend money on the provision of scholarships or on the training of persons other than employees. Section 34 of the Health Commission Ordinance 1975 requires that the respondent commission's staff shall consist of officers appointed under s.3s or temporary employees engaged under s.38. The respondent commission stated that its "service based" student nurses and its pupil nurse aides were engaged under s.38. Mr Dalton submitted that the respondent commission had power to grant the

scholarships under s.7(1)(a) and s.7(2)(c) and (h) of the

cen ATLL, SR Te tee Bl ae ne tinh i inn el in at Seah ake ae ata st nS tt NL nite Nee A el Mi Neneh Anchen

(2) Without limiting the generality of sub-section (1), the following services shall be

taken to be health services for the purposes of this section:

(h) services ancillary to the provision or conduct of services specified in this sub-section."

In my opinion, the granting of a scholarship - as distinct from training for employees - for two or three years to student nurses who are under no obligation to work for the respondent commission after the completion of their courses is not authorised by any of the heads of power relied upon by Mr Dalton. Accordingly, I accept the applicants' argument that, if the student nurses were not employees, the respondent commission

was not authorised to expend money on the scholarships.

I accept Mr Ryan's submission that the Ordinance provides a comprehensive code dealing with contracts into which the respondent commission may enter and the matters upon which it

May expend moneys and that accordingly there is an implied

PTET ETE NPE AE ORE Fe Re erat RE tt Y Ne Br Rt I arma me oo - orn neem cal

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (399 paragraphs)

Cited By (1)