New South Wales Nurses' Association v Sydney Local Health District [2013] NSWIRComm 28

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Nurses' Association v Sydney Local Health District [2013] NSWIRComm 28 Hearing dates: 15/10/2012 Decision date: 18 April 2013 Before: Walton J, Vice-President, Staff J and Backman J Decision: We make the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: APPEAL - amended application for declaratory relief refused at first instance - representation made to seven nursing staff employed to work in the Medical Assessment Unit at Canterbury Hospital to the effect that they would not be required to work on night shift in the MAU without their consent - whether s 116A of the Health Services Act 1997 applied to conditions of employment negotiated on an individual basis between the employer and the seven nursing staff employed to work in the MAU - whether there were alternatives sources of power, both statutory and non-statutory, by which conditions of employment were determined - whether Directors of Nursing and a Nurse Unit Manager had the requisite authority, either actual or apparent, to determine the conditions of employment in accordance with, or pursuant to, the alternative sources of power - Notice of Contention filed by the respondent - whether the representation to the seven nursing staff constituted a binding term of their employment - application of the Public Health Nurses' and Midwives' (State) Award 2011 with regard to rostering arrangements - HELD: the representation did not constitute a binding term or condition of employment - orders Legislation Cited: Area Health Services Act 1986 Health Administration Act 1982 Health Services Act 1997 Industrial Relations Act 1996 Public Hospitals Act 1929 (repealed) Cases Cited: Commonwealth of Australia and Another v Rian Financial Services and Developments Pty Limited (1992) 36 FCR 101 Crown in Right of the State of New South Wales (Director-General NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 Gillies v Health Administration Corporation [2003] NSWIRComm 243 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Richards v Kuring-gai Shire Council (1926) 8 LGR (NSW) 18 Robertson v Minister for Pensions [1949] 1 KB 227 South Eastern Sydney and Illawarra Area Health Service v Health Services Union (on behalf of Peisley) [2007] NSWIRComm 157; (2007) 165 IR 43 Category: Principal judgment Parties: New South Wales Nurses' Association (Appellant) Sydney Local Health District (Respondent) Representation: Mr S Crawshaw SC with Mr M Gibian of counsel (Appellant) Mr A Britt of counsel (Respondent) New South Wales Nurses' Association (Appellant) Henry Davis York Lawyers (Respondent) File Number(s): IRC 799 of 2012 Decision under appeal Citation: NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 Date of Decision: 2012-06-27 00:00:00 Before: Boland J, President File Number(s): IRC 358 of 2012