UnitingCare NSW.ACT v Hancock

JUDGE: BUCHANAN J DATE: 22 april 2014 PLACE: SYDNEY

Introduction 1 The appellant operates nursing homes and hostels. One such nursing home is the 80 bed John and Helen Robinson Nursing Home ("the Nursing Home") at the Mayflower Village facility at Gerringong in New South Wales. One hostel is the 58 bed Pioneer Lodge Hostel ("the Hostel") at the Mayflower Village facility. Another is the 25 bed Boronia Hostel at the same facility. 2 The respondents to the appeal each worked for the appellant at the Nursing Home at some time in the period between October 2006 and March 2012. Many of them had, in fact, worked there for much longer than that. 3 On 22 July 2013 Industrial Magistrate Milledge ("the Industrial Magistrate") found that each of the respondents was entitled to be paid an "in charge" allowance, for a facility of more than 100 beds, under one or more of the following award or industrial agreements: 1. Nursing Homes, &C., Nurses' (State) Award (NSW); 2. UnitingCare Ageing Enterprise Agreement 2007-2009; 3. UnitingCare Ageing Enterprise Agreement 2009-2011; and 4. UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2011-2013. 4 For the purposes of the appeal, the parties' joint position about the identification of an entitlement to an "in charge" allowance was stated as follows: 11. The 'in charge' allowance in the Nursing Homes Award from 30 March 2005 was as follows: 10. Special Allowances (a) A registered nurse in charge during the day, evening or night of a facility having a daily average of occupied beds of less than 150 shall be paid, in addition to his or her appropriate salary, whiles [sic: whilst] so in charge, the relevant sum set out in Item 1 of Table 2, Other Rates and Allowances, of Part B Monetary Rates, per shift. (b) A registered nurse who is designated to be in charge of a shift in a ward shall be paid, in addition to his or her appropriate salary, the sum set out in Item 2 of the said Table 2, per shift. (c) This subclause shall not apply to registered nurses holding classified positions of a higher grade than a registered nurse. (d) An enrolled nurse shall not be required to be in charge of a facility, shift, award [sic: ward] or unit. 12. The 'in charge' allowance under the UnitingCare Agreements (identical in each Agreement apart from changes to the clause number), was as follows: [30.1] In Charge Allowance a) A registered nurse who is designated to be in charge during the day, evening or night of a residential aged care facility shall be paid in addition to his or her appropriate salary, whilst so in charge, the per shift allowance set out in Item 8 (for less than 100 beds) or Item 9 (for 100 or more beds) of Schedule B.2 to this Agreement. b) A registered nurse who is designated to be in charge of a shift in a section of a residential aged care facility shall be paid in addition to his or her appropriate salary, the per shift allowance set out in Item 10 of Schedule B.2 to this Agreement. c) This subclause shall not apply to registered nurses holding classified positions of a higher grade than a registered nurse. (cl 10 and cl 30.1 are collectively referred to as the in charge allowance clauses). 5 The parties made no distinction between entitlements arising under the award or the industrial agreements. However, the appellant sought to place particular weight on the need (under the industrial agreements) to be "designated to be in charge" in order to argue that none of the respondents were, between October 2006 and March 2012, designated to be in charge (and were therefore not "in charge") of both the Nursing Home and the Hostel on any relevant shift. 6 The evidence before the Industrial Magistrate was that before April 2012 each of the respondents was paid the "in charge" allowance relevant to the Nursing Home (i.e. in charge of a facility of less than 100 beds). From April 2012 the appellant paid an "in charge" allowance to the respondents for a facility of more than 100 beds. The claim of the respondents before the Industrial Magistrate was that, before April 2012, they were entitled to the higher rate of "in charge" allowance because they were in charge of both the Nursing Home and the Hostel. The appellant's position was that the respondents had not been "designated" to be in charge of the Hostel and it was insufficient that during an orientation process they were told they would be responsible for the Hostel, or that enrolled nurses were told they should take direction from the registered nurse at the Nursing Home about matters arising for decision or treatment in the Hostel. 7 There was no disagreement between the parties on the appeal about the central issue in the appeal. The appellant described it thus: 13. Central to this appeal is the appellant's proposition that at no time during the period October 2006 to March 2012 was a nurse designated as being in charge of both the Nursing Home and the Hostel. … (Emphasis in original.) and the respondents described it as follows: 16. There is no argument between the parties that the respondents were in charge of the nursing home. The Appellant denies that they were in charge of the hostel as well.

Procedural matters 8 It is relevant to bear in mind that each of the claims dealt with by the Industrial Magistrate was brought as a "small claim" under s 548 of the Fair Work Act 2009 (Cth) ("the FW Act"). Accordingly, they were to be dealt with in accordance with s 548(3), which provides: 548 Plaintiffs may choose small claims procedure … Procedure (3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act: (a) in an informal manner; and (b) without regard to legal forms and technicalities. … 9 One feature of the proceedings was that no witnesses were cross-examined. That does not seem to me to be the necessary consequence of s 548(3) of the FW Act. Section 548(3) contains a standard formula which applies to the work of many tribunals which, nevertheless receive evidence in conventional ways and allow it to be tested, equally conventionally, by cross-examination. In the present case, both parties presented their evidence in chief in the form of affidavits. However, as I said, no witness was cross-examined. That circumstance requires examination. 10 Although the formula in s 548(3) does not deny the usual right to cross-examine witnesses, there are provisions relating to the hearing of "small claims" in the Local Courts of New South Wales (of which the Chief Industrial Magistrate's Court is one) which operate to curtail that privilege. The Local Court Act 2007 (NSW) provides, by s 35(2), (3) and (4): 35 Procedure generally in Small Claims Division (cf LCA 1982, section 70) … (2) Proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (3) The rules of evidence do not apply to proceedings being heard or other proceedings in the Small Claims Division. (4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by the rules or a practice note. 11 Practice Note Civ 1 issued by the Chief Magistrate of the Local Court of New South Wales provides in cl 23 as follows: 23 Trial 23.1 A "formal trial", that is, the normal adversarial trial where oral evidence is taken on oath, and witnesses are cross-examined is not available in the Small Claims Division. 23.2 Subject to any direction of the court, parties do not have the right to call a witness to give evidence, to cross-examine a witness or to give oral evidence at the hearing. 23.3 Proceedings will be heard and determined in open court on the basis of the documentary evidence that has been served and filed in accordance with the case management order. If evidence is not served and filed within the time directed then the party will not be able to rely on the evidence without leave of the court. 23.4 Where a direction has been made that a witness is to attend for cross-examination, the party relying on the statement of the witness as evidence in chief is responsible for securing the attendance of the witness for cross-examination. The proceedings will be heard and determined on the oral evidence together with the documentary evidence that has been filed and served in accordance with paragraph 23.2. 23.5 Parties may attend, make comments, present arguments and make final submissions on the evidence. 23.6 The procedure at the trial of the proceedings will be determined by the magistrate or assessor as he or she thinks fit. 12 There was no suggestion in argument on the appeal that the appellant sought any liberty to cross-examine any witness of the respondents . Rather, the appellant chose to base its evidentiary case on the affidavit of its own witness. It was, therefore, in that way that any relevant challenge was to be made (if at all) to the evidence called by the respondents.

The respondents' evidence at trial 13 There was no challenge on the appeal to the following summary by the respondents of some of the evidence: 9. All of the respondents had been told that the registered nurse in charge was in charge of the facility. Eight of the respondents had been told this during orientation by the registered nurse providing the orientation. Two of the respondents had been told that the registered nurses was [sic] in charge of the facility by the then Director of Nursing, Margaret McMillan; one was told by Anne Calvert, who also was the Director of Nursing at the relevant time; and another on commencement by the Facility Manager, Christine Petersen. 10. The evidence was that, prior to around August 2008, there were two registered nurses on shift. An asterisk was placed next to the nurse-in-charge's name on the roster and that nurse was paid the allowance for less than 100 beds. After around August 2008, only one registered nurse was rostered for the shift and was paid the in charge allowance for less than 100 beds. 11. Nemita Gates, one of the respondents, gave evidence that, prior to being employed as a registered nurses [sic], she had worked in the hostel as an endorsed enrolled nurse. At that time, she had been told by the then hostel manager, Marilyn Heneicke, that she should contact the in charge registered nurse when she needed advice or assistance. 12. Joylyn Marshall, an endorsed enrolled nurse employed in the hostel gave evidence that, on commencement of employment, she had been told by either her supervisor, Sharon Lockard or the Facility Manager, Christine Peterson, that the registered nurse in charge of the nursing home was also in charge of the hostel and that she was to contact the registered nurses in charge if she needed advice or assistance. Her evidence was also that she was referred to a memorandum on a noticeboard at the hostel which advised that this was to occur. 13. Janet Strodder, an assistant-in-nursing employed in the hostel, gave similar evidence to that of Ms Marshall. 14. Joanne Kelly, an endorsed enrolled nurse employed in the hostel, gave evidence that when she commenced, she was told by the Director of Nursing, Pauline Miller and the Hostel Supervisor, Marilyn Heneicke that the registered nurse in-charge of the nursing home was also in charge [of] the hostel. 15. Both Ms Kelly and Ms Marshall gave evidence that, as endorsed enrolled nurses, they are required to work under the supervision of a registered nurse. (Footnotes omitted.) 14 In an amended notice of appeal, the appellant contended that the evidence given by the respondents and their other witnesses was unreliable because it was based on memories of conversations long ago and because it was "identical in material respects". 15 I accept that some form of template was probably used as an aid in the preparation of evidence in the respondents' case. However, the evidence was not identical. In matters of detail, the evidence was different as the summary above shows. The appellant's own submission on the appeal identified three different categories of authorisation or nomination relied upon by the respondents to show that they were in charge of the Hostel as well as the Nursing Home. In addition, in each case the source of the information was identified. Furthermore, the evidence of the respondents was supported by some of those they supervised. It was not contradicted in any material particular by the single witness for the appellant.

The appellant's case 16 The appellant argued at first instance and on the appeal that the respondents' evidence was insufficient to sustain the entitlement claimed. It contended that some formal, overt act of designation was required. Earlier in this judgment I pointed out that the parties appeared to make no distinction between being "in charge" (the award) and being "designated to be in charge" (the industrial agreements) so far as entitlement to payment was concerned. 17 As earlier indicated, each of the respondents gave evidence that they had received advice, and understood, that they were in charge of the Hostel as well as the Nursing Home in the relevant period. Other evidence supported their understanding. None directly contradicted it or challenged their evidence about the various matters or instructions to which they deposed. No person (such as a Director of Nursing or Deputy Director of Nursing) actually involved in the day to day administration and supervision of the Nursing Home and the Hostel gave evidence for the appellant. The affidavit evidence of the appellant's only witness (a Human Resources executive with more general responsibilities) did not directly engage with the evidence upon which the respondents relied. It did not suggest that the evidence was incorrect. 18 Rather, the appellant's case relied on the following matters: • There was a statutory requirement to have a registered nurse available for the Nursing Home (a "high level" residential care facility) but not at the Hostel (a "low level" residential care facility). • During the day shift period on Monday to Friday the Director of Nursing and the Deputy Director of Nursing (each a registered nurse) were available and there was no need for another registered nurse in charge of either the Nursing Home or the Hostel, and none was. • When two registered nurses were rostered on duty on an afternoon or night shift at the Nursing Home (up to 2008) the nurse in charge was identified by an asterisk on the roster. • When only one registered nurse was rostered on duty on an afternoon or night shift at the Nursing Home (from 2008) it was the fact that the nurse was rostered on duty, coupled with the statutory requirement to have a registered nurse available at a high level residential care facility, which sufficed to accomplish the designation of that nurse as in charge, but only of the Nursing Home. 19 On the appellant's argument, therefore, the circumstance that a registered nurse was on duty at the Nursing Home on an afternoon or night shift to discharge the appellant's obligations under the statutory regime was sufficient to "designate" that registered nurse as in charge. As there was no regulatory requirement to have a registered nurse available at the Hostel, the registered nurse on duty at the Nursing Home, so it was argued, was not also in charge of the Hostel. 20 However, the matters referred to by the appellant do not, in my view, really meet the appellant's own proposed test that some overt "in charge" designation was required. The regulatory requirements do not answer the respondents' case that they were each, in fact, treated as in charge of the Hostel as well as the Nursing Home (which was undisputed) and that they (and others) were advised that they would be responsible for matters arising at the Hostel while they were the person in charge of the Nursing Home. The facts and circumstances relied on by the appellant, therefore, do not deny the proposition, central to the evidentiary case of the respondents, that they were also in charge of the Hostel at the same time. 21 The appellant's only witness referred in his affidavit to a practice until October 2009 where a registered nurse occupying a position of "Low Care Manager" was on duty 24 hours a day, seven days a week, to respond to the Hostel if necessary. This evidence did not deny that the respondents were also actually in charge of the Hostel during an afternoon or night shift and said nothing at all about the arrangements after October 2009. 22 The appellant's case also faced the practical difficulty that it had agreed to pay the in-charge allowance after 2012 on the basis that the registered nurse on duty at the Nursing Home on afternoon or night shift was also in charge of the Hostel. That factual circumstance was referred to in the evidence of the respondents. No response was made to it in the evidence of the appellant. No evidence was given by the appellant about the reason for increased payment. It was accepted in argument on the appeal that there was no relevant change in the duties or responsibilities of the registered nurse on duty on afternoon or night shift at the Nursing Home when this extra payment commenced. 23 The appellant's position is that it commenced paying the increased allowance without being under a legal obligation to do so. The inference is that it was the result of an industrial compromise. That may be so. The Industrial Magistrate in fact referred to a submission by the appellant that it was a compromise reached at a local level. 24 The respondents did not suggest that the increased payment could fairly be regarded as an admission. However, payment of the increased allowance by the appellant is relevant in at least one respect. It is relevant that (so far as the evidence showed) the appellant began paying the higher allowance without any change in duties and without any formal or overt act of appointment or designation as "in charge" with respect to the Hostel. It is relevant at least, therefore, to the argument that some such overt or formal act was necessary.

The judgment under appeal 25 Judgment was given orally. The Industrial Magistrate identified each of the award and the industrial agreements. Her Honour identified the provisions relied upon. Her Honour identified the central question which the parties have agitated on the appeal. Her Honour summarised the evidence. Her Honour identified the arguments of the parties. In particular, the Industrial Magistrate considered and rejected the proposition that the memories of the respondents were unreliable. The Industrial Magistrate said: In relation to all of these matters, I find for each of the claimants, where the [appellant] says that their memories are not to be relied on, that they are not supported by any senior management, only each other, that not only were they told at the time of their employment what they said was required of them as the registered nurse in charge, but it was duties that they undertook all those years. So they just were not told something, and then given years to forget about it, they were actually employed in those duties. They undertook those duties, that is the evidence of the claimants, that they were not only told something, that they did something, and they worked there for years. They may not be supported in their claims by senior management but Jocelyn Marshall, Janet Strodda and Joanne Kelly all worked under the registered nurses, were all told that the registered nurses were going to be in charge of the facility, not simply the nursing home, and that they could rely on the registered nurses to undertake the duties that the registered nurse would have to undertake, that is the sch 8 drugs, and other duties required of them, and that they called on those registered nurses to undertake those duties. So I do not agree with the [appellant's] position that they have to have exceptional memories. If they did not do anything, they would, but not only were they told something, but they did something, and that reinforces their memories. In relation to designated, that it is not being defined, but I am satisfied that - and of course the [appellant] says that it needs more than a longstanding delegation that there needs to be something more in terms of something positive being visited on the registered nurses to say that they were actually in charge and were designated that way for the whole facility. Each one of them gives evidence of them being part of an orientation. They were told that they were in charge. It was the way they worked. Nothing was ever done to counter that. There was no contradictory evidence brought by the [appellant]. I know the principle, he who asserts must prove, but there was nothing from the [appellant] to say that on their orientation, and all the names were given, each one of them named who it was that they got the instruction from, none of those were part of the [appellant's] counter-position to say that that never happened. 26 The appellant argued, pursuant to its amended notice of appeal, that the Industrial Magistrate gave insufficient reasons for her conclusions that the respondents were entitled to the extra payment. In my view, those submissions should not be accepted. 27 No case has been made out that the Industrial Magistrate misunderstood or misconstrued the provisions upon which the claims depended. Assessment of the claims before the Industrial Magistrate therefore turned on an assessment of the facts as revealed by the evidence. It is not irrelevant that, at the trial, the appellant did not answer the evidence of the claimants with cogent evidence of its own to deny the factual foundation upon which the claims depended. 28 There is no rule that a court is obliged to accept the evidence of a witness because it is unchallenged (usually, but not always, by cross-examination), but a failure to challenge the evidence of a witness will bear upon the weight to be attributed to the evidence and will be relevant to whether the party who calls the evidence has discharged any onus on that party (see Browne v Dunn (1893) 6 R 67; Bulstrode v Trimble [1970] VR 840 at 848; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-7; Ashby v Slipper [2014] FCAFC 15 at [77]). 29 It is apparent that the Industrial Magistrate was conscious of those matters. Her Honour was entitled to regard the evidence of the respondents (and their other witnesses) as unchallenged and to rely upon it when assessing whether the respondents had proved their case. And, in the circumstances of the present case, the Industrial Magistrate was entitled to take that course not only because (apparently) no application was made for leave to cross-examine any witness but also because the appellant did not call any evidence raising a respectable contest about the matters to which the respondents (and their other witnesses) deposed. 30 In my respectful view, there was adequate support in the evidence for the findings made by the Industrial Magistrate. The Industrial Magistrate sufficiently explained the reasons for those findings, and for the view which Her Honour took of the operation of the relevant provisions upon which the respondents' claims depended. 31 No case of error has been made out on the appeal. The appeal will be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.