New South Wales Nurses and Midwives’ Association v State of NSW [2024] NSWSC 636

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 Hearing dates: 3 April 2024 Date of orders: 30 May 2024 Decision date: 30 May 2024 Jurisdiction: Common Law Before: Davies J Decision: (1) I answer question 1, No. (2) I answer question 2, No. (3) It is not necessary to answer question 3. (4) Dismiss the proceedings. (5) Reserve the question of costs. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – interpretation – Public Health System Nurses' and Midwives' (State) Award – cl 53 "Staffing Arrangements" – proper construction of cl 53(iv) section II – where State failed to achieve 6.0 Nursing Hours per Patient Day (NHPPD) – whether failure to achieve 6.0 NHPPD amounts to a contravention – whether NHPPD are to be calculated by reference to the "spot check methodology" – held NHPPD sets a minimum staffing level that must be met at the rostering stage – rostering gives effect to reasonable workloads constituted by the agreed NHPPD – spot check provides facility for monitoring (not implementing) NHPPD – spot check employed at the instigation of a nurse or member of the Local Reasonable Workload Committee – plaintiff's construction of cl 53 impractical and unworkable CIVIL PROCEDURE – separate determination of questions – whether order for separate determination can be made by Registrar by consent of parties - consequences of separate determination – where both questions answered adversely to the plaintiff – no contravention – disposal of proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) s 13 Industrial Relations Act 1996 (NSW) s 357 Public Health System Nurses' and Midwives' (State) Award 2018 cl 53 Supreme Court Act 1970 (NSW) s 121 Uniform Civil Procedure Rules 2005 (NSW) r 28.2 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241; [2005] HCA 10 Idoport Pty Ltd & Anor v National Australia Bank Limited & 8 Ors [2000] NSWSC 1215 King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 Kucks v CSR Ltd (1966) 66 IR 182 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 Texts Cited: Nil Category: Principal judgment Parties: New South Wales Nurses and Midwives' Association (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M Gibian SC & L Andelman (Plaintiff) P Herzfeld SC & D Fuller (Defendant)