Australian Nursing Federation v State of Tasmania [2002] FCA 1573

FEDERAL COURT OF AUSTRALIA

Australian Nursing Federation v State of Tasmania [2002] FCA 1573

INDUSTRIAL LAW – application for a penalty pursuant to s 178 of the Workplace Relations Act 1996 (Cth) – whether a failure to pay hospital trained nurses a post-graduate allowance amounts to a breach of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 - construction of cl 13.3 of Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 – whether cl 13.3 is unenforceable for vagueness – whether cl 13.3 is remains unenforceable until the working group reaches agreement on the issue of what qualifications are relevant and the areas of work to which the qualifications will relate – whether it is proper for the Court to insert words into an industrial agreement - whether in the circumstances the Court should insert words into the Agreement - whether the proper construction of the terms "graduate" and "post-graduate" in cl 13.3 should reflect the understanding of the terms as understood within the industry in which the Agreement applies.

Workplace Relations Act 1996 (Cth) ss 170, 178, 179A, 356 Tasmanian State Service Act 1984 (Tas) Nursing Act 1995 (Tas) Federal Court Rules O 29 r 2 Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 Nurses (Tasmanian Public Sector) Award 1992

Printing and Kindred Industries Union v Davies Bros (1986) 18 IR 444, cited City of Wanneroo v Holmes (1989) 30 IR 362, referred to Secretary, Department of Health and Ageing v Nguyen [2002] FCAFC 416, cited Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, applied Short v F W Hercus Pty Ltd (1993) 40 FCR 511, applied CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175, followed AUSTRALIAN NURSING FEDERATION v STATE OF TASMANIA T 5 of 2002 MARSHALL J MELBOURNE (heard in Hobart) 18 DECEMBER 2002