CATCHWORDS INDUSTRIAL LAW - Nurses (Victorian Health Services) Award 1992 - interpretation of Award - annual leave entitlements - whether consideration should be given to extraneous material Industrial Relations Act 1988 (Cth) s 413 Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)(2), s 15AB(3) AUSTRALIAN NURSING FEDERATION v ROYAL MELBOURNE HOSPITAL AND OTHERS No VI 1034 of 1994 NORTHROP J MELBOURNE 8 FEBRUARY 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No VI 1034 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N : AUSTRALIAN NURSING FEDERATION Applicant A N D : ROYAL MELBOURNE HOSPITAL AND OTHERS Respondents COURT: NORTHROP J PLACE: MELBOURNE DATE: 8 FEBRUARY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: The Court orders that on its true meaning and intent subclause B26(a)(iii) of the Nurses (Victorian Health Services) Award 1992 applies with respect only to those employees, other than a Director of Nursing, Deputy or Assistant Director of Nursing, Principal Teacher, Deputy Principal Teacher, Senior Teacher or Teacher, who are employed in an out-patients, pathology, X-ray or blood bank department of a hospital and who come within the other provisions of the subclause. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No VI 1034 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N : AUSTRALIAN NURSING FEDERATION Applicant A N D : ROYAL MELBOURNE HOSPITAL AND OTHERS Respondents COURT: NORTHROP J PLACE: MELBOURNE DATE: 8 FEBRUARY 1995 REASONS FOR JUDGMENT The Australian Nursing Federation, an organisation of employees under the Industrial Relations Act 1988, is seeking an interpretation of Clause B26 of the Nurses (Victorian Health Services) Award 1992 ("the Award"). The application is brought under section 413 of the Act, the relevant parts of which are: "413(1) The Court may give an interpretation of an Award on application by: (a) ... (b) an organisation ... (2) The decision of the Court is final and conclusive and is binding on the organisation and persons bound by the award who have been given an opportunity of being heard by the Court." This section is in the same form as section 110 of the Conciliation and Arbitration Act 1904 immediately before the Industrial Relations Act came into operation in 1988 when that section became section 51 of the Industrial Relations Act. It became section 413 when the Industrial Relations Act 1993 came into operation on 30 March 1994. The decision to make the Award was made by the Industrial Relations Commission on 23 December 1992. It was made on 18 February 1993 with effect from 23 December 1992. The application by the Federation to make the Award was opposed but the clauses of the Award were not. The Award replaced a Victorian State Award, the Registered Nurses Award ("the State Award"). Clause 26 of the Award is in the same form as Clause 8 of the State Award and, for practical purposes, is in the same form as when it first appeared in the State Award in 1958. The Clause was then included by consent. The parts of Clause 26 of the Award relevant for this interpretation are: "26 - ANNUAL LEAVE (a) (i) Subject to employees' Annual Leave accrued entitlement being adjusted into 38 hour equivalents and except as otherwise provided in this Clause, all employees shall be granted 190 hours of annual leave with ordinary on completion of 12 months service with an Institution, subject in the case of a Student Nurse to leave being timed to suit his or her curriculum of training. (ii) When the system of working provides for the taking of accrued days off, the maximum number of accrued days off shall be 13 in any calendar year. Provided, that one day of a year's annual leave period shall be regarded as an accrued day off for which no additional payment is to be made. (iii) Provided that where an employee (other than a Director of Nursing, Deputy or Assistant Director of Nursing, Principal Teacher, Deputy Principal Teacher, Senior Teacher or Teacher) would but for this clause be employed in an out-patients, pathology, X-ray or blood bank department of a hospital and is not required to work and does not work on a gazetted public holiday other than one occurring on a rostered day off for such employee or whilst the employee is on annual leave and receives from his or her employer not less than fourteen days prior notice that she/he will not be required to work thereon such day (being hereinafter referred to as a non-working public holiday) there shall be deducted from such employee's entitlement to annual leave, in respect of twelve months' service in which any such non-working public holidays occur one day for every non-working public holiday but so that in no event shall any such employee be entitled to in respect of any twelve months' service in less than 152 hours annual leave. (iv) ... " Before turning to a consideration of Clause 26, some brief comments are made about the Award. The Award applies to the employment of registered nurses, State enrolled nurses and mothercraft nurses in the State of Victoria but does not apply to persons employed under the Public Service Act 1974 (Vic), see Clause A4. The Award is divided into two Parts. Part A comprising Clauses A1 to A9, applies to the employment of all employees to whom the Award applies. Part B, comprising Clauses B1 to B39 is headed "PART B REGISTERED NURSES" and applies to the employment of all employees, being registered nurses, to whom the Award applies. Part C applies with respect to enrolled nurses while Part D applies with respect to mothercraft nurses. Under Clause A8, the phrase "registered nurse" is defined to mean a person whose name appears in any section of the Register maintained by the Victorian Nursing Council excluding a State enrolled nurse or mothercraft nurse. For present purposes it is not necessary to refer to the definitions of "State enrolled nurse" and "mothercraft nurse". Clause A5 provides that the Award is binding on the Federation, a very large number of individual employers, sometimes referred to in the Award as institutions, and two employer organisations being the Victorian Employers' Chamber of Commerce and Industry and the Australian Chamber of Manufacturers, as well as other persons. By Clause A6, the Award supersedes a number of other Awards including the State Award. Part B of the Award applies with respect to registered nurses. Clause B3 contains a large number of definitions including, strangely, a definition of the phrase "registered nurse", but it is not necessary to refer to any of these definitions. Clause B4 contains what are in substance descriptions of the phrases "full-time employment", "part-time employee" and "casual employee". Sub-clause 4(a), headed "Full-time employment" provides: "(a)A full-time employee is one who is employed and who is ready, willing and available to work a full week of 38 hours or an average of 38 hours as per subclause 13(d) at the times and during the hours as may be mutually agreed upon or in the absence of such agreement as prescribed by the employer. Subject to the provisions of subclause 13(a) such employee shall be paid the weekly salary appropriate to the employee's classification, irrespective of the number of hours worked not exceeding 38, or an average of 38 per week." Part B of the Award does not require the hours of work to be done on the basis of a week from Monday to Friday. As is to be expected, generally speaking, nursing attention is required to be provided on a seven day a week basis and for 24 hours each day but the extent of nursing services provided, of necessity, varies from day to day and at different times per day. Clause B17 provides for a roster system for full-time and part-time employees. Clause B19 contains provisions with respect to work done in excess of the ordinary hours prescribed while Clause B20 provides for special rates for work on a Saturday and Sunday. Clause 22 "Public Holidays" contains provisions for days off in lieu of working on specified public holidays or payment in lieu thereof. This provision applies to employees "other than a nurse employed in an out-patients, pathology, X-ray or blood bank department (as referred to in Clause 26 - Annual leave of this part)". This wording should be compared with the working in Clause B26(iii) set out at the beginning of these reasons. Similar exclusions are contained in sub-clauses 22(c) and (d) which contain provisions relating to payment for working on public holidays occurring on rostered days off, not being a "holidays falling on Saturday or Sunday with respect to Monday-Friday workers" or to additional payment for public holidays occurring during annual leave. In this context, consideration can be given to the interpretation of Clause B26. Sub-clause 26(a)(i) prescribes the general annual leave entitlement. A registered nurse is entitled to five weeks (based on 38 hours per week) annual leave with ordinary pay on completion of 12 months service. Sub-clause B26(a)(iii) contains a proviso to that general entitlement. The proviso does not apply to registered nurses employed as a Director of Nursing, Deputy or Assistant Director of Nursing, Principal Teacher, Deputy Principal Teacher, Senior Teacher or Teacher. The proviso, for present purposes is: "Provided that where an employee ... would but for this clause be employed in an out-patients, pathology, X-ray or blood bank department of a hospital and is not required to work and does not work on a gazetted public holiday" subject to prescribed exceptions not presently relevant should have the entitlement of five weeks annual leave reduced proportionately but not to less than four weeks. Counsel for the Federation contended that the words "employed in an out-patients, pathology, X-ray or blood bank department of a hospital" should be given their normal meaning with the effect that the proviso applied only to employees employed in any of the named departments. Counsel for the respondents contended that the words "employed in an out-patient, pathology, X-ray or blood bank department of a hospital" should be ignored completely with the result that the proviso contained in subclause B26(a)(iii) applied to all registered nurses engaged to work day work Monday to Friday and who are "not required to work and do not work on a gazetted public holiday". As counsel put it, the true intent and effect of subclause B26(a)(iii) was that with the exception of those registered nurses occupying a specified position: "Nursing staff engaged to work day work Monday to Friday and who are not required to attend for duty on public holidays shall be entitled to four week annual leave on completion of each twelve months service regardless of the department in which he or she is employed." The nature of an application under section 413 of the Industrial Relations Act and the principles to be applied in giving an interpretation are made clear in Master Builders Association of Victoria v Australian Building Construction Employees and Builders Labourers' Federation (1981) 35 ALR 284 and The Federal Firefighters' Union v The Minister of State for the Capital Territory (1982) 62 FLR 341. See also Re The Clothing Trades Award (1950) 68 CAR 597 and Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444. Counsel for the respondents conceded that in the absence of further evidence, the interpretation sought by counsel for the applicant should be accepted. Counsel for the respondents sought to rely on further evidence which he contended was admissible under paragraph 15AB(1)(b)(ii) of the Acts Interpretation Act 1901. For present purposes, I am prepared to accept that the Award is an instrument under section 46 of the Acts Interpretation Act and thus is to be treated as if it was an Act for the application of section 15AB. The parts of paragraph 15AB(1)(b)(ii) relevant for present purposes are: "15AB (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) ... (b) to determine the meaning of the provision when: (i) ... (ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. (2) ... (3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage." None of the material sought to be relied upon constitutes material referred to in subparagraph 15AB(2). The substance of the material sought to be relied on by counsel for the respondents was to the effect that in 1958, when the terms of subclause B26(a) were agreed to, the departments specified in subclause B26(a) were the only departments where registered nurses were employed to work day work Monday to Friday and those nurses were not required to work on public holidays. Since then many registered nurses have become employed in areas not coming within any of the specified departments but are employed to work day work Monday to Friday only and are not required to work on public holidays. As a result, those nurses, unless subclause B26(a)(iii) is interpreted as contended by counsel for the respondents, are entitled to five weeks annual leave under subclause B26(a)(i). It was contended that having regard to this development, the normal interpretation of subclause B26(a)(iii) would lead to a result that was manifestly absurd or was unreasonable in that these nurses are entitled to five weeks annual leave while those working under the same conditions in the departments specified in subclause B26(a)(iii) are liable to have the five weeks leave entitlement reduced in conformity with the provisions of that subclause. By way of aside, the comment may be made that the result visited upon the latter nurses by that subclause has become manifestly absurd or unreasonable by events occurring after 1958 when compared with the other nurses working under similar conditions but not within the specified departments. These are problems which should be determined by the Industrial Relations Commission, not the Industrial Relations Court. The material sought to be led in evidence, in substance, was the material led in evidence before the Victorian Industrial Relations Commission in Court Session on the hearing by some employees bound by the State Award for a declaration as to the true intent and effect of clause 8 of the State Award being in the same terms as clauses B26(i) and (iii) of the Award. The material included the applications, the State Award, the transcripts of the proceedings before the Commission in Court Session, a hearing which extended over seven days, the 17 exhibits tendered by the applicants to that matter and the eight exhibits tendered by the Federation as well as the reasons for decision given by the Commission in Court Session on 23 February 1993 being after the Award presently before this Court came into operation. Included in the exhibits was a transcript of the proceedings in 1958. The proceedings before the Commission in Court Session were brought under subsection 21(2) of the Industrial Relations Act 1979 (Vic) which provides: "21 (2) Where a person affected by an award is uncertain of its intention or effect he may request the Commission in Court Session to consider the matters set out in the request on which clarification is sought and to declare what are the true intent and effect of the award." The Commission in Court Session made the following declaration: "The commission declares that the true intent and effect of the award is as contended by the employer applicants, that is: "Nursing staff engaged to work daywork Monday to Friday and who are not required to attend for duty on public holidays shall be entitled to four weeks annual leave on completion of each twelve months service regardless of the department in which he or she is employed." Counsel for the Federation said he disputed the facts alleged to be supported by the material sought to be led by counsel for the respondents including the facts found by the Commission in Court Session in its decision of 18 February 1993. The Court announced that it would read the decision of the Commission in Court Session as if it were a decision of a quasi-judicial body but would not treat the facts found in it as being found in the matter before the court. The Court refused to allow the material sought to be lead by counsel for the respondents to be led as evidence and said it would give its reasons later. The interpretation sought by counsel for the respondents involves a rewriting of subclause B26(a)(iii) of the Award. In truth it amounts to a variation of the Award. It is more appropriate that a variation, if it is to be made, should be made by the Industrial Relations Commission pursuant to its power to vary an Award. What is being sought goes far beyond the powers conferred by paragraph 15AB(1)(b)(ii) of the Acts Interpretation Act. None of the authorities relied upon by counsel for the respondents have any application to the particular facts of this application. Further, the exercise of the power is made subject to subsection 15AB(3). Having regard to the matters contained in that subsection, and having regard particularly to the matters referred to in paragraphs 15AB(3) (a) and (b), the Court was of opinion that consideration should not be given to any of the material sought to be relied upon by counsel for the respondents. From a consideration of the reasons for decision of the Commission in Court Session it is apparent that the Commission followed procedures different from that followed by this Court. The Commission did not purport to give an interpretation of clause 8 of the State Award. It made a declaration as to the true intent and effect of the State Award. In doing this the Commission went behind the terms of the Award and then made the declaration by, in substance, rewriting the Award. This Court cannot do that. Once the Court rejected the evidence sought to be led on behalf of the respondents, counsel for the respondents conceded that the contentions made on behalf of the Federation should be accepted. During the course of the hearing, the Court drew attention to the undesirability of having so many respondents named. Hundreds were named. The Federation, of necessity, must have incurred great expense in serving or attempting to serve so many respondents. Eventually an order for substituted service was made. A large number of respondents entered appearances by different solicitors. A large number of respondents, although served, did not enter an appearance and did appear at the hearing. At the hearing, the one solicitor and one counsel appeared for a large number of respondents including the Victorian Employers' Chamber of Commerce and Industry. Counsel for the Federation sought to justify the naming of so many respondents by reference to subsection 413(3) of the Industrial Relations Act. The Court is aware of that subsection. The purpose of an interpretation under section 413 is to resolve a difference between opposing parties. Provided all reasonable arguments are in fact put, the Court is in a position to express its opinion. Any interpretation has persuasive effect on all parties to the Award even if not binding on them all. This aspect is discussed in the Masters Builders Association case, above. In an application under section 209 of the Industrial Relations Act an applicant does not name as respondents all the members of the organisation. Some only are named. Any order made is accepted by all members even though not bound by the order. What is essential is that all relevant arguments should be made. A similar procedure should be adopted with respect to applications under section 413. Otherwise unnecessary costs and difficulties arise. Normally, the problem does not arise if organisations are parties to the application. In the present case, the order made will be binding on all respondents served with the application irrespective of whether they appeared or not. In these circumstances, the Court has requested the applicant to prepare a schedule of persons bound by the order to form part of the order. Accordingly the Court directs the solicitors for the Federation to prepare within 14 days minutes of order to give effect to the orders made including a schedule of respondents bound by the order. The Court orders that on its true meaning and intent subclause B26(a)(iii) of the Nurses (Victorian Health Services) Award 1992 applies with respect only to those employees, other than a Director of Nursing, Deputy or Assistant Director of Nursing, Principal Teacher, Deputy Principal Teacher, Senior Teacher or Teacher, who are employed in an out-patients, pathology, X-ray or blood bank department of a hospital and who come within the other provisions of the subclause. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop. Associate: Date: 8 February 1995 ATTACHMENT Counsel for the Applicant: Mr S.J. Howells Solicitor for the Applicant: Wilson Potter Counsel for the Respondents: Mr McDonald Solicitor for the Respondents: Mr G.J. Szlawski