Industrial Relations Commission New South Wales Medium Neutral Citation: Northern NSW Local Health District v NSW Nurses and Midwives' Association [2018] NSWIRComm 1015 Hearing dates: 8 February 2018 Date of orders: 19 March 2018 Decision date: 19 March 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The jurisdictional objection of the Northern NSW Local Health District is dismissed Catchwords: INDUSTRIAL DISPUTE – award interpretation – staffing arrangements – ward and unit – declared mental health facility – jurisdictional objection Legislation Cited: Mental Health Act 2007 Industrial Relations Act 1996 Category: Procedural and other rulings Parties: Northern NSW Local Health District (Applicant) NSW Nurses and Midwives' Association (Respondent) Representation: Solicitors: Ms L Shanahan, K & L Gates (Applicant) Mr N Dawson, NEW Law (Respondent) File Number(s): 2017/00247431 INTERLOCUTORY DECISION 1. On 14 August 2017, the Northern NSW Local Health District ("the LHD") notified the Industrial Registrar of an industrial dispute arising from advice given to it by the Lismore Mental Health Sub Branch of the NSW Nurses and Midwives' Association ("the Association") of their intention to indefinitely close six beds in the Lismore Mental Health Unit commencing at 7.00am on Monday 14 August 2017. 2. The parties to the dispute came before me in compulsory conference proceedings on a number of occasions during the latter part of 2017. At the centre of the dispute are the competing claims of the parties as to the application of clause 53, Staffing Arrangements, of the Public Health System Nurses' and Midwives' (State) Award 2017 ("the Award") to the staffing of the Tallowwood Lismore Adult Mental Health Unit. Background 1. According to the submissions filed by the LHD, in 2015 a decision was made to reconfigure a 40 bed unit into a 24 bed Adult Acute Unit and a 16 bed Older Person Unit. The 24 bed Adult Acute Unit is known as Tallowwood. Whilst Tallowwood is, according to the submission of the LHD, a single unit it has two areas divided by nurses' station. One area contains 16 beds for adult acute mental health patients. The other area has eight beds which are used when patients require close observation. The parties are in dispute about how Tallowwood should be staffed. 2. The Association maintains that Tallowwood should, for the purposes of clause 53 of the Award, be treated as two separate units, namely, a 16 bed inpatient adult acute mental health ward and an eight bed inpatient close observation unit. 3. Clause 53 of the Award relevantly provides as follows: (i) Reasonable workloads are required for nurses to assist in providing a sustainable health system for the people of NSW that not only meets present health needs but also plans for the health needs of the future. (ii) The employer has a responsibility to provide reasonable workloads for nurses. (iii) Principles The following principles shall be applied in determining or allocating a reasonable workload for a nurse: (a) Reasonable workloads will be based on the application of the staffing arrangements detailed in this clause. The arrangements may be the reasonable workload principles alone or, in addition, the provisions set out in Sections II – IX, of subclause (iv) in relation to the services, wards and units to which they apply. (b) Workload assessment will take into account measured demand by way of clinical assessment, including acuity, skill mix, specialisation where relevant, and geographical and other local requirements/resources. (c) The work performed by the employee will be able to be satisfactorily completed within the ordinary hours of work assigned to the employee in their roster cycle. (d) The work will be consistent with the duties within the employee's classification description and at a professional standard so that the care provided or about to be provided to a patient or client shall be adequate, appropriate and not adversely affect the rights, health or safety of the patient, client or nurse. (e) The workload expected of an employee will not be unfair or unreasonable having regard to the skills, experience and classification of the employee for the period in which the workload is allocated. (f) An employee will not be allocated an unreasonable or excessive nursing workload or other responsibilities except in emergency or extraordinary circumstances of an urgent nature. (g) An employee shall not be required to work an unreasonable amount of overtime. (h) And employee's workload will not prevent reasonable and practicable access to Learning and Development Leave, together with 'in-house' courses or activities, and mandatory training and education. (i) Existing minimum staffing levels to ensure safe systems of work and patient safety shall continue to apply. (j) Nothing in this clause prevents a high level of staffing from being provided when, and where, this is necessary for clinical or other reasons. (iv) Staffing and Specialities The Association and the Ministry agree that the staffing arrangements in this clause and their application may be reviewed and amended from time to time by agreement and that the Award may be varied by consent to reflect any such agreement. …………………….. Section II: Nursing Hours Wards and Units (a) Nursing hours wards and units comprise general inpatient wards, dedicated palliative care wards/units, dedicated rehabilitation wards/units and inpatient adult acute mental health wards/units. …………………….. (i) 6.0 NHPPD (Nursing Hours Per Patient Day) will apply to inpatient adult acute mental health wards in general hospitals which are not specialist mental health facilities, accounted for over the period of a week. ………………………. (l) At the time the new staffing levels referred to in Section II subclauses d) to j) above are introduced on a ward or unit for the first time, staffing levels in wards and units with higher than the specified staffing will either continue to apply or be reviewed. A reduction in staffing will not occur without a review taking place. If there is disagreement between the Employer and Association about the outcome of the review the provisions of subclause (vii) Grievances in relation to workload will apply. ………………………… Section VI: Inpatient Mental Health Staffing Arrangements (a) The Association and the Ministry have agreed that the following provisions will apply in all inpatient mental health units (with the exception of inpatient adult acute mental health wards at Section II from the date of implementation of nursing hours in these wards/units) and be used by managers in the evaluation of nursing staff levels and for the Reasonable Workload Committees to assess and manage identified workload issues. (b) For the purpose of this subclause inpatient mental health units include but are not limited to: 1. Forensic Units; 2. Child & Adolescent Units; 3. Older Adult; 4. Psychiatric Emergency Care Centres (PECC) 5. Rehabilitation; 6. Extended Care Units. ……………………… 1. Section VI of clause 53 of the Award then sets out the factors that managers use to evaluate nursing staff levels and for the Reasonable Workload Committees to assess and manage identified workload issues. Section VI does not specify how many NHPPD will apply to a unit/ward to which that section applies 2. The LHD contends that section II of clause 53 applies to Tallowwood on the basis that it is an inpatient adult acute mental health ward/unit as referred to in subsections (a) and (i) of section II of the clause and in the exception set out in subsection (a) of section VI. In support of this contention, the LHD relies upon a declaration made pursuant to section 109 of the Mental Health Act 2007 which provides as follows: I, ELIZABETH KOFF, Secretary of the NSW Ministry of Health, pursuant to section 109 of the Mental Health Act 2007, and section 43 of the Interpretation Act 1987, DO HEREBY: ………………….. (b) DECLARE the following premises of Lismore Base Hospital to be a declared mental health facility for the purposes of the Mental Health Act 2007: • Kamala – Child and Adolescent Mental Health Unit, located on the Lismore Base Hospital Campus at 60 Hunter Street, Lismore, NSW 2480 • Tallowwood – Lismore Adult Mental Health Unit, located on the Lismore Base Hospital Campus at 60 Hunter Street, Lismore, NSW 2480 • Lilli Pili – Lismore Older Persons Mental Health Unit, located on the Lismore Base Hospital Campus at 60 Hunter Street, Lismore, NSW 2480 (c) DECLARE this facility to be designated as a "mental health assessment and inpatient treatment" facility. Signed, this 23rd day of December 2016. Elizabeth Koff Secretary 1. The position of the Association is that section VI of clause 53 of the Award applies to the determination of how Tallowwood should be staffed and that the declaration made pursuant to section 109 of the Mental Health Act is of little assistance in the resolution of that issue. 2. In an attempt to resolve the dispute I convened compulsory conferences on 15 August, 4 and 21 September, 12 and 23 October and 13 November 2017. During the proceedings on 13 November 2017, Mr C Blair, who was then appearing for the Association, handed up a draft order which the Association was seeking in order to resolve the dispute. That draft order is as follows: ORDER THAT: For the purposes of the application and operation of clause 53 Staffing Arrangements of the Public Health System Nurses' and Midwives' (State) Award ("the Award"): 1. Tallowwood Lismore Adult Mental Health Unit ("Tallowwood") is two separate units: i. a 16 bed inpatient adult acute mental health ward; and ii. an 8 bed inpatient close observation unit. Notation: 1. A formal inspection of Tallowwood occurs and the observations of the inspection be formally recorded and become part of evidence in the matter; 2. That following the determination of the above Order, the parties and the NSW Ministry of Health will be directed to have discussions regarding the implications of the determination; and 3. That if any further remedies are sought by the parties, the matter is to be re-listed for further Orders. 1. Ms L Shanahan, solicitor, who appeared for the LHD, foreshadowed a jurisdictional objection to the Commission's ability to issue such an order. 2. I formed the view that, by that stage, conciliation had been exhausted and I issued a Certificate of Attempted Conciliation pursuant to section 135 of the Industrial Relations Act 1996 ("the Act"). 3. Both parties indicated that they did not take any objection under section 173 of the Act to me proceeding into arbitration of the dispute. I then made directions for the filing and serving of submissions and evidence by the parties in relation to the jurisdictional objection foreshadowed by the LHD. Submissions and evidence of the LHD 1. The LHD filed written submissions which included the following: The LHD objects to the Proposed Order on the following grounds: (a) The NSWIRC does not have the jurisdiction either under the Public Health System Nurses' and Midwives' (State) Award 2017 (Award) or the IR Act to determine that Tallowwood is two separate units; and (b) The NSWIRC does not have the jurisdiction to make an order that Tallowwood is two separate units under the Mental Health Act 2007 (NSW) (MH Act); and (c) The NSWIRC does not have jurisdiction to make an order directing the Ministry of Health to exercise its power in a particular way under the MH Act; and (d) The NSWIRC does not have jurisdiction to make an order or issue a direction on a department or person who is not a party to the dispute; and (e) The Proposed Order will not resolve the dispute. 1. The submissions of the LHD were supported by an affidavit sworn by Richard Buss, General Manager, Mental Health, Drug & Alcohol and Stream Services for the LHD. Mr Buss explained the process by which a unit is declared a particular type of mental health facility and, in particular, the process whereby Tallowwood was declared as a mental health assessment and inpatient treatment facility under section 109 of the Mental Health Act. 2. The LHD submitted that there is no role for the Commission to play in this process. 3. Further, it was submitted that clause 53 of the Award does not contain any provision that deals with the determination of which section of that clause applies, such that the Commission could make the order sought by the Association. The section of clause 53 which applies is directly referable to how the unit or ward has been declared by the Secretary of the Ministry of Health. The Commission has no role to play in determining which section of clause 53 applies. As Tallowwood is an adult mental health unit that has been declared a mental health assessment and inpatient facility, it falls within the exception contained within section VI of clause 53 of the Award. As such section II of clause 53 of the Award applies to determine staffing arrangements. 4. It was further submitted that the Commission lacks the power to direct the Ministry of Health to engage in discussions regarding the implications of the determination and that the order sought by the Association will not necessarily resolve the dispute because section VI of clause 53 of the Award does not specify nursing ratios. It merely sets out criteria for managers to consider when determining staffing ratios. This leaves a significant area for the current dispute to remain on foot. Submissions and evidence of the Association 1. The Association relies on the following provisions of the Act: Section 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: ………………. (d) make any other kind of order it is authorised to make (including an order made on an interim basis). ……………….. Section 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 1. The Association submitted that the dispute had been properly characterised by the LHD as a dispute about the "interpretation, application or operation" of clause 53 of the Award. 2. It was submitted that it is not necessary to consider whether a "Unit" has been declared and gazetted to determine how the provisions of clause 53 of the Award should operate. The order sought by the Association does not seek to interfere with the declaration of Tallowwood as a "Mental Health Unit". It only seeks to deal with the application of the Award to the ward/unit in relation to the determination of the appropriate level of nursing staff to be engaged. 3. The submissions of the Association were supported by a witness statement from Anna Claude, Manager, Industrial Strategy and Bargaining, for the Association. Ms Claude gave detailed evidence concerning the history and application of clause 53 of the Award. Much of Ms Claude's evidence related to the merits of the Association's claim in relation to which section of clause 53 of the Award should apply in relation to the determination of staffing levels at Tallowwood, rather than to the jurisdictional issue presently before the Commission for determination. Determination of the jurisdictional issue 1. I agree with the submissions of the Association that the issue presently before the Commission concerns the "interpretation, application or operation" clause 53 of the Award. In exercising that function, the Commission is not being asked to interfere in the manner in which Tallowwood has been declared as a mental health facility under section 109 of the Mental Health Act. Conversely, in exercising its functions of award interpretation, the Commission cannot be restricted by such a declaration. The Award is an industrial instrument which stands apart from, and is independent of, any declaration made by the Secretary of the Ministry of Health under the Mental Health Act. 2. The order sought by the Association is to the effect that, for the purposes of the application and operation of clause 53 of the Award, Tallowwood is to be treated as two separate units, namely, a 16 bed inpatient adult acute mental health ward and an eight bed close observation unit. 3. Clause 53 of the Award serves an important industrial purpose in that it establishes principles and processes for the determination of staffing arrangements based upon reasonable workloads for nurses. The application of these principles and processes to a particular ward or unit cannot be determined by the unilateral declaration of the Secretary of the Ministry of Health. No reference is made in the relevant sections of clause 53 to wards or units "as declared by the Secretary of the Ministry of Health under the Mental Health Act", which is the manner in which the LHD would have the Award interpreted. 4. It is the task of this Commission to examine the industrial reality of the situation as it exists at Tallowwood. It would be an abrogation of that responsibility if the Commission were to simply hold that Tallowwood is a single ward or unit, rather than two separate units, simply because it has been described as "Tallowwood – Lismore Adult Mental Health Unit" in the declaration made under section 109 of the Mental health Act . 5. Section 109 of the Mental Health Act is in the following terms: 109 ESTABLISHMENT OF DECLARED MENTAL HEALTH FACILITIES (1) The Secretary, by order published in the Gazette: (a) may declare any premises to which this section applies and that are specified or described in the order to be a declared mental health facility, and (b) may, in the same or another order so published, name the premises so specified or described, and (c) may, in the same or another order so published, limit the provisions of this Act or the purposes under this Act for which the facility is a declared mental health facility. (2) Without limiting subsection (1), an order may do any of the following: (a) designate a declared mental health facility as a facility of a specified class, (b) designate the purposes for which a mental health facility of a specified class may be used, (c) impose restrictions on the use of a mental health facility for specified purposes, (d) impose any other conditions in relation to the operation of the facility as a mental health facility. (3) This section applies to the following premises: (a) premises that belong to or are under the control of the Crown or a person acting on behalf of the Crown, (b) premises that are under the control of a public health organisation within the meaning of the Health Services Act 1997, (c) premises that the owner or person who has control of the premises has agreed, by an instrument in writing given to the Secretary, to being premises to which this section applies. 1. Section 4 of the Mental Health Act contains the following definitions: "mental health facility" means a declared mental health facility or a private mental health facility. "premises" includes any land, building and part of any building. 1. The terms "premises" and "mental health facility" do not appear in the relevant parts of clause 53 of the Award. The terms "ward" and "unit" do. In order for the submission of the LHD to succeed, one would have to substitute the terms "ward" and "unit" where they appear in clause 53 with the term "mental health facility as declared pursuant to section 109 of the Mental Health Act". I can see no basis for so doing. 2. Further, the wording of section II (i) of clause 53 (see paragraph 5 above) suggests that the term "specialist mental health facilities" is not synonymous with the term "inpatient adult acute mental health wards" which appears in the same provision. 3. It is apparent from the wording of the declaration made under section 109 of the Mental Health Act (see paragraph 7 above) that the three identified "premises" of Lismore Base Hospital, including "Tallowwood – Lismore Adult Mental Health Unit" are declared to be a "declared mental health facility for the purposes of the Mental Health Act 2007" and this facility is "to be designated as a "mental health assessment and inpatient treatment facility". Nothing in the wording of this declaration suggest that Tallowwood must be treated as a single indivisible "ward" or "unit" for the purposes of clause 53 of the Award. 4. Although it is not strictly worded as such, the draft order which the Association is asking the Commission to make is, in effect, a determination pursuant to section 175 of the Act of the question of the application of clause 53 of the Award to the staffing arrangements at Tallowwood. In order to make that determination it will be necessary to determine whether Tallowwood is to be regarded as a single 24 bed unit, as is contended by the LHD, or as a 16 bed ward and a separate eight bed unit, as is contended by the Association. 5. I am unable to discern anything in the declaration set out at paragraph 7 above which would deprive the Commission of jurisdiction to make the determination sought by the Association. 6. The jurisdictional objection of the LHD is dismissed. I so order. 7. Nothing I have stated in this interlocutory decision should be taken as any indication that I would be persuaded to make the determination as sought by the Association. I will hear the parties on the further programming of the matter to deal with that issue. John Murphy Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2018