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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Industrial Law - breaches of award - failure to pay award wages - respondent contending student nurses not employees but grantees of scholarships - whether employees where primary purpose of arrangements is to teach - whether respondent had power to grant scholarships - whether breaches arose out of a course of conduct.Evidence - admissibility of evidence that respondent in previous years accepted that student nurses were employees.
Conciliation & Arbitration Act 1904 s. 119.
Conciliation and Arbitration - Breach of award - Student nurses - Respondent commission conducted training courses for student nurses - Award fixing pay for student nurses - Commission paid student nurses scholarships not wages - Award wages higher than scholarships - Whether Commission empowered to pay scholarships - Whether student nurses are employees - Whether Commission breached award - Penalty - Seat of Government (Administration) Act 1910 (Cth), s. 5(2) - Health Commission Ordinance 1975 (A.C.T.), ss. 7, 34, 35, 38 - Conciliation and Arbitration Act 1904 (Cth), ss. 119, 120.
Evidence - Admissibility - Whether evidence that Commission had treated student nurses as employees in the past admissible. A Miss Simms and Miss Pfeiffer were training as student nurses at the Royal Canberra Hospital in 1980 and 1981 respectively. They were paid by the respondent Commission scholarships of $69.91 per week as the Commission regarded them as grantees of scholarships and not as employees. The Hospital Employees etc. (Nursing Staff A.C.T.) Award 1980, to which award the respondent Commission was a party, provided in cl. 5 a weekly rate of pay for student nurses of $123. The Hospital Employees' Federation and the Royal Australian Nurses' Federation applied separately to the Federal Court of Australia seeking principally a penalty against the respondent for an alleged breach of the award. By consent both applications were heard at the same time.
Held: (1) The student nurses were employees of the respondent because they were under a contractual obligation to perform work which was an essential part of the services provided by the respondent Commission to its patients.
Junior Constables case (1943) 17 SAIR 334, followed.
Wiltshire Police Authority v. Wynn (1981) 1 QB 95; Re Crown Employees (Trainee Teachers) Award (1974) AR (NSW) 450, distinguished.
(2) The granting of a scholarship - as distinct from training of employees - for two or three years to student nurses, who are under no obligation to work for the respondent Commission after completion of their course, was not authorized by any of the heads of power.
R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529; North Stafford Steel, Iron and Coal Co. (Burslem) Ltd. v. Ward (1868) LR 3 Ex 172, referred to.
(3) The fact that a person is performing duties under a contract, the primary purpose of which is to teach the person an occupation, does not prevent that person from being an employee.
R. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [1952] HCA 10; (1952) 85 CLR 138; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [1910] HCA 33; (1910) 11 CLR 1; John Heine & Sons Ltd. v. Pickard [1921] HCA 47; (1921) 29 CLR 592; Fletcher v. A.H. McDonald & Co. Pty. Ltd. [1927] HCA 12; (1927) 39 CLR 174; Culbert v. Clyde Engineering Co. Ltd. [1936] HCA 19; (1936) 54 CLR 544, considered.
HEARING
Melbourne, 1981, November 23-27; December 3-4, 14-18, 22;W.H. Nicholas Q.C. and P.L. Sheils, for the applicant Rowe.
D.M. Ryan Q.C. and R.E. Williams, for the applicant Cooney.
R.P. Dalton Q.C. and T.J. Ginnane, for the respondent.
Cur. adv. vult.Solicitors for the applicant Rowe: Crowley & Chamberlain.
Solicitors for the applicant Cooney: Pamela Coward & Associates.
Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
E.F. FROHLICH
Orders accordingly.
DECISION
The Capital Territory Health Commission (the respondent commission) by its defence admitted that it is and was at all material times a body established by the Health Commission Ordinance of the Australian Capital Territory capable of being sued and that it is a party to the Hospital Employees etc. (Nursing Staff A.C.T.) Award 1980 and was a party to previous relevant awards. The current award was made on 16 February 1981 and was expressed to operate from the beginning of the first pay period to commence on or after 17 November 1980. It superseded, inter alia, the Hospital Employees etc. (Nursing Staff A.C.T.) Award 1966 and it was not disputed that the two awards were in substantially the same terms. In these reasons the word "award" may be used to refer to either or both of the awards as the context requires; if it becomes necessary to refer to only one of the awards it will be identified by its year.In matter number A.C.T. 2 of 1981 the applicant is Hedley Gordon Rowe, and in matter number A.C.T. 3 of 1981 the applicant is Judith Adella Cooney. The respondent commission admitted that the applicant Rowe is an officer of the Hospital Employees' Federation of Australia (the H.E.F.), that the H.E.F. is an organisation registered under the Conciliation and Arbitration Act 1904 (the Act) and that the applicant Rowe is authorised by the rules of the H.E.F. to sue on its behalf. Similarly, the respondent commission admitted that the applicant Cooney is an officer of the Royal Australian Nurses Federation (the R.A.N.F.), that it is an organisation registered under the Act and that the applicant Cooney is authorised by the rules of the R.A.N.F. to sue on its behalf.
The applicant Rowe claimed the following relief:"1. A declaration that the conduct of the Respondent in purporting to establish and maintain a scholarship system for the training of nurses is ultra vires and illegal.
2. A declaration that the scheme whereby the Respondent is training nurses in
the Australian Capital Territory and purporting to grant
scholarships to them
is in fact a system whereby there is a contract of service between such
trainee nurses and the Respondent and
is in breach of the Hospital Employees
etc. (Nursing Staff A.C.T.) Award 1980.
3. An order that the Respondent comply with the terms of the said award.
4. An order that all trainee nurses who have been granted such scholarships be
paid the underpayments due pursuant to the appropriate
awards.
5. An order that such penalty as to the Court shall seem proper be paid by the
Respondent to the Applicant . . ."
Mr W. H. Nicholas Q.C., who appeared with Mr P. Sheils for the applicant Rowe,
stated at the outset of the hearing that the matter
was primarily an
application for a penalty for a breach of the award and that he did not
anticipate that he would be pressing for
the court to make the declarations
sought.
The applicant Cooney claimed relief in almost identical terms. Mr D. M. Ryan Q.C., who appeared with Mr R. E. Williams of counsel, indicated on behalf of the applicant Cooney that, once his application for a penalty was decided, his claim for declarations might not arise for determination.
Mr R. P. Dalton Q.C. appeared with Mr T.J. Ginnane for the respondent in both matters. By consent of all parties the matters were heard together and it was agreed that the evidence called in each matter would (if relevant) be evidence in the other matter. In these reasons for judgment, unless the context plainly indicates the contrary, "student nurse" means a supernumerary student nurse, "trained sister" means a registered nurse (sometimes in the evidence called a graduate nurse) and "charge sister" means a trained sister who is in charge of a ward. As to the first application, it was admitted by counsel for the respondent commission that in respect of the first pay period to commence on or after 17 November 1980 the respondent paid to Roslyn Simms a weekly rate of $69.91 and did not pay the weekly rate appearing in clause 5 of the award, namely $123.60. As to the second application it was admitted by counsel that in respect of the pay period from 31 May 1981 to 13 June 1981 the respondent did not pay to Kim Pfeiffer the weekly rate prescribed for classification 17 in clause 5 of the award.
The substantial defence was that neither Miss Simms nor Miss Pfeiffer was an
employee at the material time and that accordingly
the respondent commission
had not committed a breach of the award. It only required the payment of the
prescribed rates of pay to
"an employee employed in a classification" (clause
5) - see also clause 4(a) - "binding . . . in respect of employees covered".
Clause
39 of the award contained the following definitions:
". . .
(b) 'Employee' shall mean a person of a classification mentioned herein
employed by the employer as defined herein and includes officer
as defined in
the Public Service Act.
. . .
(j) 'Student nurse' shall mean a person who is undergoing a course in general
nursing, conducted by the employer.
(k) 'Nurse educator' shall mean a nurse registered by the Nurses' Board of the Australian Capital Territory, engaged as a nurse educator and employed principally in the teaching or training of persons employed on nursing duties."
Miss Simms gave evidence that she was a student nurse at the Royal Canberra Hospital, a member of the A.C.T. Branch of the H.E.F. and began her training as a student nurse in February 1980. Further, in common with other student nurses she carried out the requirements of her training with respect to theory and practical work as directed by nurse educators and by graduate staff who were on duty in the wards to which she was assigned from time to time.
On 24 January 1980 Miss Simms signed a document in the following terms
(which I shall refer to as the terms and conditions document):
"Terms and conditions of student enrolment in the two year nurse education
program
1. The course will commence on 11 February 1980 and will continue for 107
weeks. This period includes 10 weeks vacation.
2. Student attendance at all theoretical and clinical sessions is compulsory.
3. If any student is absent from the course for any period or periods of time
exceeding in the aggregate 2 weeks in any year, the
program may, in his or her
case, be extended to cover the period of absence in excess of that time.
4. Where, in the opinion of the Hospital Administrator, a student is absent
from the program for any period of time in excess of that
deemed to be
reasonable the Hospital Administrator may refuse the student permission to
continue the course.
5. Where the academic achievement of a student, which is assessed by the
Principal Nurse Educator, and the Director of Nursing, is
below that deemed
satisfactory by the Hospital Administrator the student may be refused
permission to continue the course.
6. Where a student's achievement in clinical practice, which is assessed by
the Principal Nurse Educator and the Director of Nursing,
is below that deemed
satisfactory by the Hospital Administrator the student may be refused
permission to continue the course.
7. Board and lodging - subsidised accommodation is available.
8. Each student is granted a scholarship allowance of $3500 per annum out of
which each student will be paid a fortnightly allowance.
If, for any reason, a
student abandons or is required to discontinue the course the scholarship
allowance will terminate with immediate
effect.
9. Students are responsible for all travelling expenses incurred by them in
connection with the program.
10. No undertaking, express or implied, is given in respect of employment by
the Capital Territory Health Commission of a student
who has successfully
completed the Nurse Education Program.
11. I have read and understood the foregoing terms and conditions of the
program."
A large volume of evidence was called by both the applicants and the respondent commission as to the duties of Miss Simms and Miss Pfeiffer "in clinical practice" (paragraph 6 of the terms and conditions document). It is necessary to refer to the evidence as to those matters in some detail. Miss Simms and Miss Pfeiffer both impressed me as truthful witnesses. Both gave evidence at some length but Miss Simms' evidence was more detailed and she was subjected to a cross examination which was longer and more vigorous. I reject the comment made in reply by the respondent commission's counsel that she "was prepared to exaggerate things quite a great deal if it suited her purpose". Miss James, the director of nursing at the Royal Canberra Hospital, who was called as a witness by the respondent, stated that she was not suggesting that Miss Simms' evidence was untrue but explained that it "was a composite picture of what a large number of students would do at any one time. It was not a picture of what one nurse would be required to do at any particular period of allocation to a ward". I accept as accurate the descriptions by both Miss Simms and Miss Pfeiffer of the work performed by them as student nurses in the hospital and other places in obtaining clinical experience. It is convenient to refer to that work in hospitals and other places simply as work "in the wards".
I find that both Miss Simms and Miss Pfeiffer, notwithstanding that they were "supernumerary" to the roster for the ward, did in fact perform as part of their normal work in the wards (in which they were obliged to wear uniforms) and other places to which they were sent by the respondent commission, a great variety of tasks which constituted general nursing care of persons who at the time were patients of the respondent commission. They were "subject to the directions of senior staff with respect to the actual tasks they performed and the manner in which they performed them". The nature of the duties performed by them can be shown by a fairly brief summary of the tasks normally performed by Miss Simms in giving general nursing care to the respondent commission's patients who were allocated to her.
Patients allocated. The names of Miss Simms and any other student nurses were written down by a tutor sister in a book containing the names of the rostered staff. The charge sister at the commencement of the shift, normally allocated the trained sister(s), student nurse(s), nursing aide(s) and/or pupil nursing aide(s) to the patients in a particular ward or single rooms. The allocation of the student nurses was normally done in consultation with the tutor sister. In the evidence some witnesses spoke of the student nurses being allocated to patients and others spoke of the patients being allocated to the student nurses but the practical effect was the same whatever way the "allocation" was described by a witness. Further, a trained sister was normally allocated to eight patients including the four (sometimes six) patients allocated to a student nurse - under the supervision of the trained sister. It was normal for them to start at the time the shift in the ward started and they were "expected to do so" (Mrs Pinder). They could, however, on request start at a later time. I shall refer later to the responsibility of the student nurse. Miss Simms and the others so allocated wrote down the names of all 20 patients in the ward, together with particulars of their diagnoses, e.g. whether they were to have X-rays or other tests, whether they were fasting for theatre or to be discharged.
Recording observations. At prescribed intervals she took the temperatures, pulse rates and blood pressure readings of the allocated patients and recorded those observations on charts which were kept by the respondent commission as a record of the medical condition of those patients.
Preparing patients for theatre. Before patients were taken to the operating theatre she explained to them what would happen before the operation and told them what tubes they would see attached to them when they became conscious after the operation. She also informed the patients what physical activities, by way of physiotherapy, they would be expected to perform after the operation. She ascertained whether the patient had signed the form giving his consent to the operation and attended to the shaving of the patient (if necessary) and to the appropriate attire of the patient for the operation. With a trained sister present she gave the injection containing the pre-medication and instructed the patient not to get out of bed - doubtless because of the danger of a fall by reason of the effect of the injection. Then she accompanied the patient to the operating theatre.
Duty in operating theatre. Miss Simms worked for eight successive weeks in the operating theatre. For four weeks she acted as a "scout" nurse, getting items from outside the theatre for use during the operation. For the remaining four weeks she acted as a "scrub" nurse in gown, cap and mask - handing instruments directly to the operating surgeons. She was "responsible for checking that the consent is signed and for the right operation on the right side and that the times are correctly recorded" (i.e. the times that the operation commenced and finished). She also participated in the count of the instruments and other items used in the operation to ensure that nothing was left in the patient inadvertently.
Dressing wounds and pressure area care. When a patient allocated to her had returned to the ward after an operation, Miss Simms dressed the wound. If the patient was confined to bed her responsibility included, at specified intervals, pressure area care, whether by posture change or massage, to prevent bed sores.
Intravenous drips. Miss Simms gave details of her work in respect of patients with intravenous drips. She was responsible, among other things, for checking with a trained sister that it was "the right flask, the right type of fluid . . . the right number of drips per minute". She also had to ensure that "the cannula remains in situ, is not . . . pouring out in to tissues". In the latter event she took remedial action immediately, slowing down the drip, and notified a resident doctor or a trained sister.
Fluid balance records. When a patient allocated to her had a catheter Miss Simms recorded on a fluid balance chart, kept by the respondent commission as part of the medical records of its patients, the input to the patient from the intravenous flask and the output into the catheter bag. The patient's doctor was notified of any disparity between input and output when the amounts were compared after 24 hour periods.
Sponging and general hygiene. Miss Simms' work in respect of patients allocated to her included at times (depending upon the condition of the patients) sponging them, "personal hygiene in general", helping them with their meals - "perhaps feeding them" - and brushing their teeth. She had to keep the patients clean or, if they were incontinent, "make sure that they are as dry as possible and as clean as possible at all times".
Giving medications. Miss Simms gave evidence as to her role in conjunction with a trained sister in giving "medications" after she had passed a medication round recognised by the Nurses Registration Board. Medications were usually given 2 hourly - starting at one end of the ward with the "medications trolley" which contained medications to be taken orally. She would stay with the patient to ensure that the pill, tablet or other medication was in fact taken. She gave injections to patients with a trained sister present, having done so during her first period in a ward and has "been doing it ever since". She had taken patients on her own to the E.C.G. room and also took patients down when they were to be discharged.
Doctors' rounds. When doctors called to make their rounds if the trained
sister was unavailable (e.g. because she was with another
doctor) Miss Simms
would accompany the doctor and as she said in her evidence, which I accept:
". . . you are responsible for telling him what has been happening with the
patient - what is relevant - and then he will say, 'In
that case I would like
such and such done'. . . . one example . . . varicose ulcers on his feet . . .
he was my patient for that
particular day and there were quite a few doctors
that came to see him that day . . . There was a skin specialist, there was an
ordinary
doctor and his . . . . . specialist and, yes, I took instruction from
all of them as to his positioning during the day and his skin
care, also which
way his dressings were to be done in the morning and at night and then he had
a medication change as well which
we talked about. . . . (If there is no
trained sister present) I will report, of course, what the doctor said, (a) in
the notes and,
(b) to the graduate . . ."
Working for doctors in casualty. ". . . And down in casualty you work very
closely with the doctors down there and they will see a
patient who has come
in with a cut or whatever or a sprain and the doctor will say to you, 'Nurse,
bandage this person's arm or elbow,
please'."
Writing reports. Miss Simms at the end of each shift wrote reports on allocated patients which were countersigned by a trained sister, normally without adding anything to her report. Nursing aides were not permitted to write reports on patients.
Responsibility of student nurses. Although the student nurses worked under
supervision and with tutorial and other assistance from
nurse educators, I
accept Miss Simms' evidence in cross examination that:
"We were responsible for what we do to the patients, we are responsible for
our standards but ultimate accountability I guess lies
with the charge
(sister) as does with all the student nurses.
(Mr Dalton) You have a duty to do such things as you do with respect to the
patient as well as you can in the circumstances?---Yes,
correct." (T210)
Similarly, Miss Pfeiffer agreed (T271) with Mr Dalton that "nurses have a
fundamental responsibility to ensure that the ward is kept
hygienic". In his
reply on behalf of the respondent commission to the applicants' final
addresses, Mr Dalton said (T1269-70):
"It is not our case, your Honour, that there was somebody looking over the shoulder of each of those students throughout the course. . . . and as their training progressed their need for such supervision diminished. Indeed, it was part of the training that she would perform higher skills without direct supervision in order to allow her to exercise initiative."
Miscellaneous duties. In addition to the foregoing Miss Simms gave evidence of her duties on dusting rounds, of cleaning patients' bedside tables and lockers, of bedmaking rounds, of washing bed pans, of scrubbing bed frames (after the discharge of a patient) and of running messages to places such as the pharmacy to "speed things along". It will be necessary to say something later regarding these matters.
Miss Pfeiffer, who had heard Miss Simms' evidence-in-chief, gave evidence of those tasks detailed by Miss Simms which she had not yet performed. She also gave detailed evidence which I accept as to her duties as a student nurse. She had been working for three weeks at Allambee Nursing Home and had previously performed the same duties there for five successive weeks. One wing was for psychogeriatric patients, another for "patients who are fairly ambulant" and the third wing was "mainly a male ward" including patients with senile dementia and others considered psychogeriatric. Her participation in basic nursing care for them involved "maintaining their hygiene . . . their hydration, their general well-being" which, because of the nature of their condition, involved more than one bed round per shift - sometimes three rounds. Such a round, which included changing soiled linen and washing the patients when necessary, used to take one to one and a half hours. She also used to spend about one hour per shift in bathing or showering the four or six patients assigned to her "and then if help is needed we then help with any baths or showers" of other patients in the ward.
On their evidence, which I accept, it is clear that generally speaking the two student nurses, in the hospital wards and other places to which they were sent by the respondent commission, were performing work which was an essential part of the services provided by the respondent commission to its patients. They were doing that work generally on three days per week - although the number of days varied from nil (e.g. during the initial study block) to five days per week. Although there was some evidence to the contrary, I accept that they worked as part of the nursing team, the function of which was to furnish the best possible patient care. Miss James did not regard them as being part of the "work force" in the sense of persons planned to be used or rostered for the wards, but agreed that the two student nurses were "engaged in the overall provision of health care at the hospital". That work, if not done by the two student nurses, would have been done by other persons who were admittedly employees of the respondent commission, namely trained sisters or enrolled nursing aides or pupil nurse aides. The latter were employees whilst they were being trained as nursing aides. Mr Dalton in his address submitted that even if, contrary to his submission, Miss Simms was held to be an employee, Miss Pfeiffer was not an employee. He relied upon certain differences in the activities of the students, the terms and conditions, the curriculum and the "subsequent actings" of the parties (per Lord Fraser in the A.M.P. Society Case (post)). Having considered the differences, including all of those matters to which he referred, I am unable to accept this submission. I accept Miss Simms' evidence that, having worked alongside students from the 1981 course, she was unable to observe any difference in the way those students were treated, relative to the way in which she was treated.
The respondent commission contended, based upon its evidence, that student
nurses in performing these tasks were "not giving a service
to the hospital"
because it was part of the student nurses' "clinical experience as directed by
the nurse educator". There were some
differences in the way in which the
respondent commission's witnesses expressed the criteria which determined
whether particular
work by a student nurse was "service to the hospital" (or
"service to the ward"). The respondent's difficulty on this aspect is
illustrated
by the following evidence (T811-3) by the respondent's witness Mrs
McQueen, a senior nurse educator with post graduate qualifications
employed by
the respondent:
"And there is gradual accumulation of skills?---Yes.
Some of which build on others and some of which are not built on others but
integrated, if you like, with other skills?---That is
correct.
And that goes on throughout the entire course until graduation?---It does.
And indeed for the rest of the nursing life, does it?---It does.
But once the nurse has finished graduation that learning process which
continues occurs in the course of giving a service to the hospital,
does it
not?---It does.
And before that, it is not in giving a service to the hospital, is that what
you are saying?---For supernumerary students, that is
correct.
Just consider, would you, the position of a graduate nurse and a student nurse
sponging patients, two of them, one in each bed. If
the graduate nurse is
learning something while doing that, she is learning it in the course of
giving a service to the hospital,
is that what you are saying?---That is
correct.
The student nurse, if it is part of his or her patient care clinical
experience as directed by the nurse educator, is not giving a
service to the
hospital in carrying out that task, is that right?---That is right.
. . .
What if it (the bed) is to be made because Mr Brown has wet his bed and they
simply want Mr Brown's bed changed?---That is service
to the hospital.
Even if the student understands that the purpose of the change is to make Mr Brown comfortable, hygienic, to get everything cleaned up and to make him presentable for his relatives who are coming to visit him shortly. It still is a service even though the student understands it fully, is that right?---It is not a service to the hospital if Mr Brown is the student's assigned patient. It is a service if Mr Brown is not a student's assigned patient or allocated patient."
In my opinion the error in this contention is that it assumes that if a task carried out by a student nurse is part of the learning process for the particular student nurse, (or, as it was expressed by a number of the respondent commission's witnesses, "a valid clinical experience" for her) then it follows that the performance of that task cannot be "service to the ward". That contention assumes that the two concepts of "learning experience" and "ward service" are mutually exclusive. I am quite unable to accept that assumption. In my opinion the one activity may be both part of "a valid clinical experience" and also "service to the ward" whether it be taking the temperature, pulse or blood pressure of a patient, attending to his hygiene, his bed making and pressure care, to his pre-operative or post-operative care in all its aspects or working in the operating theatre as either a "scrub" or a "scout" nurse. That which is a "valid clinical experience" looked at from the point of view of the student nurse may also be part of "ward service" looked at from the point of view of the respondent commission's obligation to provide "health services" to the patients in its hospitals. In my opinion those tasks were "ward service" when they were tasks which, if not performed by her, would have been performed by a trained sister or a nursing aide - and so performed because the task was a necessary part of the general nursing care required to be given by the respondent commission to its patients. In my opinion, most of the tasks performed by Miss Simms and Miss Pfeiffer were "ward service" although that would not be so in some circumstances, e.g. when they were merely watching a trained sister demonstrate a technique. I have reached that conclusion notwithstanding the evidence that the work in the wards is performed without the need for additional staff when the student nurses are not in attendance - because trained sisters work faster than student nurses and do not have to spend time instructing or supervising the student nurses. However, the fact that the respondent commission can operate the wards without student nurses does not alter the fact that the student nurses perform tasks in the wards which are a necessary part of the general nursing care which the respondent commission is obliged to provide for the patients.
On the respondent's own case it is clear that, under the supervision of a graduate nurse, the two student nurses were responsible (in the sense which I have discussed earlier) for the basic nursing care of the patients allocated to them. It was not suggested by the respondent commission or by any of the witnesses called by it that the student nurses were present in the wards merely "to watch - to see how things are done" - per Lord Denning M.R. in Wiltshire Police Authority v. Wynn (1981) 1 Q.B. 95 at p.109.
In this connection the respondent commission called as a witness Mrs Wishart, a trained sister with post graduate qualifications, who was in charge of the orthopaedic ward at the Royal Canberra Hospital. Two student nurses from the 1981 course had been in her ward as part of their clinical consolidation unit quite recently for five days per week for three weeks. Although she said that nurse educators in referring to the student nurses had stressed "their supernumerary status", she gave evidence that they were allocated three or four patients and they undertook that basic nursing care under the supervision of a graduate nurse. She explained (T615-7) that the "basic nursing care" given by the student nurses was:
"Their basic cleanliness and hygiene, assistance with meals, such tests as
were necessary, preparation for theatre, receiving them
back after theatre,
observations necessary and ordered at the time, basic dressing techniques if
they were qualified to do them.
. . .
. . . they were responsible for the cleanliness and safety of their own
patients which is a basic requirement of all nurses. They
would have
undertaken such cleaning as was necessary for their own patients. . . .
. . . they had the overall care of the patient. . . .
. . . they were under the care of another member of staff usually a graduate who also had the care of eight patients, four of whom would have been under the direct care of the supernumerary nurse."
Notwithstanding the evidence to which I have referred the respondent commission contended that the student nurses were "not part of the work force" and were "different". Mrs Wishart explained the differences as being (T634):
"The number of patients they are allocated, in the first place; the fact that
the supernumerary student has a graduate overseeing
the work that she does;
that they cannot be shifted around the ward to suit my convenience or the
convenience of the patients or
the loading of anything else; and that they can
be taken off the ward at any time for lectures or further clinical
experience.
But subject to those things, as far as the actual duties that they perform in the ward are concerned, what they do is no different to what members of the workforce do?---For their own patients, no."
In my opinion those "differences" did not have the effect that the student nurses were not employees.
Other witnesses called on behalf of the respondent tried - and tried vainly in my opinion without any fault on their part - to support the contention by drawing a distinction between a "valid clinical experience" and "service to the wards". Mrs McQueen (to whose evidence I have already referred) did concede, under cross examination as to tasks which were "clinical experience" for the student nurse, that "indirectly, it could be termed as service to the hospital but if the supernumerary student were not there to perform that task another member of the staff would". Also, Mrs Pinder, a nurse educator employed by the respondent commission at the Royal Canberra Hospital, conceded under cross examination by Mr Nicholas "that matters which contributed to the efficient operation of the ward would be of benefit to the patients in it". Apart from these statements it is fair to say that each witness for the respondent commission appeared to assume that, if an activity could fairly be described as being "a valid clinical experience" for the student nurse, then it necessarily followed that it could not be said to fall within the category of "service to the wards" - even though precisely the same activity (looked at from the point of view of the respondent's obligation to provide service in the wards to those persons whom it had admitted as patients in its hospitals) would undoubtedly be "service to the wards" if the activity were carried out by a trained sister or a nursing aide.
To my mind such an assumption is simply not sustainable. It is not correct to assume (either as a matter of logic or of language) that the one activity by a student nurse cannot be accurately described as falling within both categories. An activity of an apprentice (or an articled law clerk) may well be both valid practical experience for him as part of the process of learning his trade (or profession) and yet, at the same time, be fairly described as providing a service to his master or as providing, on behalf of his master, a service to the master's client. Nor is it any less a "service" that the activity of the apprentice has to be supervised by the master (directly or through other employees) or that the "service" provided by the apprentice or law clerk, either to or on behalf of his master, has to be checked or counter-signed or certified by the master or by someone on his behalf.
In my opinion Miss Simms and Miss Pfeiffer were both employees of the respondent commission, by reason of their contractual obligation to perform their duties of giving general nursing care to patients in the hospital wards, Allambee Nursing Home and other places. Even when the performance of those duties could be fairly said to be "a valid clinical experience" for them they nonetheless constituted "ward service" and service to the respondent commission. Mr Ryan cited the Junior Constables Case (1943) 17 S.A.I.R. 334, where, in his reasons for judgment dealing with a preliminary objection by counsel for the respondent that the persons concerned were "not employed by the State but are mere students attending a training college", Morgan J. said (at p.346):
"The evidence shows that the activities in which a Junior Constable engages
fall, as I think might be expected, into three classes-
1. Those which do not involve the rendering of any service. A large part of
the training which I have set out would fall into this
class, for instance,
the Junior Constable who takes part in a debate or memorises portions of the
Justices Act does not render any actual service in so doing, he is simply
equipping himself for future service.
2. Work which does involve a rendering of service but in the doing of which
the Junior Constable might be expected to learn how to
perform the work
efficiently.
3. Work which involves a rendering of service but which does not instruct the
Junior Constable. (This would include the carrying out
of jobs so simple that
their performance would not teach the Junior Constable anything (for instance,
carting wood to police stations)
and the continuance in a job which the
trainee has already mastered).
On behalf of the respondent, it was urged that the Junior Constable only does jobs which are intended to teach him. I do not think that this contention was entirely borne out by the evidence, but even if it were, it seems to me to be beside the point. A person may enter into a contract of service, the purpose of which is to teach him an occupation, and in fact that person may learn all the time that he carries out his service, and yet be an employee. An apprentice may be such a person, and an improver may be such a person, yet both of them are clearly employees."
I adopt with respect the principle of law enunciated in the last two sentences of that passage.
In addition, there was ample evidence of the regular performance by the two student nurses of many tasks of a repetitive nature after they had acquired the skill or technique necessary to perform that task, e.g. taking temperatures, taking pulse rates, attending to the sponging and general hygiene of patients, attending to wet beds and soiled clothing, taking patients to showers, feeding them, brushing their teeth, shaving patients before operations and making beds. Mrs McQueen in her evidence in chief said:
"So whether the student is making the 200th bed or the 400th bed it is all part of the educational process which terminates when the student passes our assessments at the completion of the course and passes the nursing registration board examination."
It is true that on the evidence a student nurse in making a bed for the four-hundredth time may still be learning something (e.g. by observation of the bedding itself or of the patient as he leaves the bed) but, as Mr Ryan said in final address, that is also true of the trained sister who makes a bed for the fourteen-hundredth time. I accept his submission that, as to the performance of these tasks by Miss Simms and Miss Pfeiffer, the evidence fails to distinguish between what is necessary to produce a graduate nurse and what is educational in the sense that it adds to the nurse's stock of experience. The failure to distinguish was not the fault of either the respondent commission's counsel or the witnesses called by them because there is no prescription of the number of times a student nurse must perform a task nor anything to suggest that there is any quantitative test which determines the minimum number of times that a task must be performed.
In any event, as I have said earlier, on the evidence it was quite clear that the two student nurses continued to perform many of the tasks on a regular basis after they had acquired the necessary skill or technique. The 1980 "curriculum" made provision for a record of the fact that a tutor sister had demonstrated a technique and the tutor sister's signature as evidence that she had witnessed the student nurse performing the activity. In so doing, she was certifying, as Miss James said, that she "was satisfied that the student had reached a satisfactory standard as far as the particular skill was concerned".
Lastly, I find on the evidence that the two student nurses performed tasks which were plainly not part of a valid learning experience. I refer to the evidence of the student nurses cleaning bedside tables and lockers, scrubbing bed frames after the discharge of patients, participating in dusting rounds and bed making rounds through the ward including patients not allocated to the student nurse, washing bed pans (as distinct from making necessary observations), running messages to places such as the pharmacy, handing out menues, distributing tooth mugs, cleaning dentures, preparing and taking supper to the patients when on evening shift and performing "extra duties" on "quite" days, e.g. cleaning thermometers and the poles from which the intravenous bottles hang and getting intravenous bottles from the storeroom to restock the ward. I make that finding notwithstanding certain evidence called by the respondent commission which suggested that there was a valid learning experience in almost every task performed provided that it "related" to a patient allocated to the student nurse. For example, Mrs Wishart answered "Yes" to Mr Nicholas' question "Thus whatever you have seen students doing in wards under your care you would consider to be related to the provision of patient care, would you not?". Miss Norrie, a nurse educator, said that "provided a function is related to the care of a patient or patients it is part of the learning experience . . . ". However, she said that scrubbing wheels on a trolley and running messages would not be "a learning experience".
I am not prepared to accept Mr Dalton's sumission that on the evidence such duties were occasional happenings and not significant enough to constitute the service of an apprentice to his master. In my opinion, notwithstanding the evidence that the student nurses were instructed to inform the nurse educator if they considered that they were being "used for ward service", the two student nurses were employed to perform work which included those duties which I have just listed. Witnesses called by the respondent classed almost all of those tasks as "valid clincial experiences". In my opinion, by reason of those duties, they were employed under the award even if, contrary to the opinion which I have expressed, the other duties in the wards were not "service to the wards" and accordingly not service to the respondent commission because they were valid clinical experiences.
I turn now in more detail to the arguments advanced by Mr Dalton in support of his submission that the student nurses were simply the grantees of scholarships and were not "employees". He cited a number of cases and relied strongly upon Wiltshire Police Authority v. Wynn (supra). In my opinion that decision is distinguishable for a number of reasons. They include the following: (a) the particular statutory provisions which the Court of Appeal had to construe. As Lord Denning M.R. said (at p.108) "It cannot have been intended that police cadets should have recourse to industrial tribunals and probationary constables should not . . . both . . . are on the same footing"; (b) the "very special position in our system" occupied by a police constable - per Lord Denning M.R. (at p.109) citing Viscount Simonds in Attorney General for New South Wales v. Perpetual Trustee Co. Ltd (1955) A.C. 457, 489-490; (c) the particular facts there under consideration - unlike the student nurses the police cadets were "there to watch - to see how things are done . . . sometimes they help in a minor way . . . to see how the job is done . . ." per Lord Denning M.R. at p.109 (see also Waller L.J. at p.111); (d) the nature of the police cadetship was such that the police cadets, unlike the student nurses, were "in no way at the conclusion of their cadetship qualified to become a police constable . . . not possible to say that the applicant was an apprentice, or anything approaching an apprentice" - per Waller L.J. (at p.111) - see also per Lord Denning M.R. (at p.109) - "They are not being taught a trade such as would make them an 'apprentice'". Accordingly, in my opinion the decision of the Court of Appeal does not support the respondent commission's submission.
Mr Dalton also placed considerable reliance upon a decision of the New South Wales Industrial Commission in Court Session (Beattie J., President, Sheehy and Sheldon JJ.) in In re Crown Employees (Technical Teachers) Award (1974) 74 A.R. (N.S.W.) 450. However, in my opinion that case is distinguishable on its facts and does not enunciate any principle of law which supports the respondent commission in this case. The Industrial Commission said (at pp.460-1) "What has to be determined is whether during the period of training specified in (a) above he is performing basically work in an industrial sense and, if so, for whom". In the present case it is not necessary to consider whether the student nurses were performing basically work in an "industrial" sense because s.5(2) of the Seat of Government (Administration) Act 1910-1973 provides that:
"(2) For the purposes of the application of the Conciliation and Arbitration
Act 1904-1972 in accordance with the last preceding sub-section-
(a) a person employed, otherwise than in an industry, for the performance of
work wholly or mainly in the Territory shall be deemed
to be an employee in an
industry; . . .
. . . "
The Industrial Commission also said:
"It is clear that trainee teachers are not part of the Teaching Service as defined in the Teaching Service Act and to regard persons who for some years are devoting most of their time to the pursuit of courses in academic institutions as part of an organization which is a government department would require language to be strained."
Such a statement cannot be made of the student nurses to whom the respondent commission had itself (not through a separate academic institution) offered:
"To provide a basic nursing programme facilitating the development of a
competent beginning registered nurse (practitioner) through
correlation of
theory and practice.
To develop the student's ability to recognise individual needs and effectively apply the components of the nursing process to the delivery of patient centred care through participation in the activities of the health care system."
On the evidence before me the student nurses were not "persons who for some years are devoting most of their time to the pursuit of courses in academic institutions" whereas "the greater part of a trainee's time is spent in pursuing his or her academic course by attending lectures, etc. and in study related to the course" (1974) A.R. at p.464 - see also p.463. Further, on the evidence of the tasks performed by the student nurses in the wards, to which I have referred at some length, it does not require "language to be strained" to regard the student nurses as part of the respondent commission's organisation - notwithstanding their supernumerary status.
The trainee teachers were held (at p.470) to be "not part of the Teaching Service as defined in the Teaching Service Act"; here the Nurses Registration Ordinance 1933 expressly contemplates (s.22) the attendance at approved hospitals of persons admitted to a two year or three year "course of training in the theory and practice of nursing". I accept Mr Ryan's submission as to the distinction between on the one hand a student who attends an academic institution which gives educational instruction only (as distinct from "practice teaching" to which the Industrial Commission referred (at p.463)) and, on the other hand, either a person apprenticed to a master carrying on a trade or profession in which he offers instruction or a:
"person who (a) attends, for not less than three years . . . the practice of one or more hospitals approved by the (Nurses Registration) Board as training schools for general nurses; (b) undergoes, during the attendance . . . the prescribed course of training in the theory and practice of nursing . . . " (s.22(1) of Nurses Registration Ordinance)
Further, the Health Commission Ordinance 1975, defined "nurse" as meaning, inter alia, "a person who is employed by the Commission and who is . . . (c) a pupil nurse . . . within the meaning of the Nurses Registration Ordinance . . . ".
It is convenient at this stage to deal briefly with a further submission advanced by both Mr Nicholas and Mr Ryan, namely, that the respondent commission had no power to expend money on the provision of scholarships or on the training of persons other than employees. Section 34 of the Health Commission Ordinance 1975 requires that the respondent commission's staff shall consist of officers appointed under s.35 or temporary employees engaged under s.38. The respondent commission stated that its "service based" student nurses and its pupil nurse aides were engaged under s.38. Mr Dalton submitted that the respondent commission had power to grant the scholarships under s.7(1)(a) and s.7(2)(c) and (h) of the Ordinance. Those provisions read as follows:
"7. (1) The functions of the Commission are-
(a) to provide and conduct health services;
. . .
(2) Without limiting the generality of sub-section (1), the following
services shall be taken to be health services for the purposes
of this
section:
. . .
(c) information and education services for the preservation of health;
. . .
(h) services ancillary to the provision or conduct of services specified in
this sub-section."
In my opinion, the granting of a scholarship - as distinct from training for employees - for two or three years to student nurses who are under no obligation to work for the respondent commission after the completion of their courses is not authorised by any of the heads of power relied upon by Mr Dalton. Accordingly, I accept the applicants' argument that, if the student nurses were not employees, the respondent commission was not authorised to expend money on the scholarships.
I accept Mr Ryan's submission that the Ordinance provides a comprehensive code dealing with contracts into which the respondent commission may enter and the matters upon which it may expend moneys and that accordingly there is an implied prohibition against its entering into other forms of contractual relationships or expending moneys on matters not within its express powers - R. v. Wallis and anor; Ex parte Employers Association of Wool Selling Brokers and others [1949] HCA 30; (1949) 78 C.L.R. 529 at p.550 per Dixon J. citing North Stafford Steel, Iron and Coal Co. (Burslem) Ltd v. Ward (1868) L.R. 3 Ex. 172 at p.177. I also accept his submission that if, contrary to the opinion which I have already expressed, the nature of the relationship between the respondent commission and the two student nurses were ambiguous, then the court should construe the contracts in such a way as to be within the power of the respondent commission (i.e. as contracts of employment) rather than as the unlawful grant of scholarships.
Mr Dalton in his final address agreed (T944) that "in a sense" (cf. Mrs McQueen in passage cited earlier) the student nurses were providing ward service in that they were "partaking in providing nursing care" for the patients. However, he relied upon the fact that the purpose of the respondent commission's relationship with the student nurses was to train them to become qualified nurses. He submitted that there is a principle of law "that where the primary object of the contract is teaching or learning there is no contract of service" - relying upon the following passage from Lord Denning M.R. in Wiltshire Police Authority v. Wynn (supra at p.109):
"In determining the question, there are two cases which seem to me to be
useful. They were under the settlement of paupers: see Rex
v. Inhabitants of
Laindon (1799) 8 Term Rep. 379 and Rex v. Inhabitants of Credition [1831] EngR 262; (1831) 2 B.
& Ad. 493. In those two cases the question had to be considered whether a
pauper had been employed under a contract of service or under a contract
of
apprenticeship.
The courts drew a distinction according to which purpose was the primary
purpose: and which was secondary. If the primary purpose
was work for the
master - and teaching a trade was only a secondary purpose - it was a contract
of service. But if teaching a trade
was the primary purpose - and work for the
master was only secondary - then it was a contract of apprenticeship.
The distinction between the cases where teaching and learning is the primary purpose - and the cases where the work done is the primary purpose - is helpful in the present context."
In my opinion the courts, in the cases referred to by Lord Denning, in drawing "a distinction according to which purpose was the primary purpose" were doing so only for the purpose of determining "whether a pauper had been employed under a contract of service or under a contract of apprenticeship". In these proceedings I do not have to determine that question. The question is, as to each of the two student nurses, was she "an employee employed in a classification specified" in clause 5 of the award. It is not necessary for me to determine whether their contracts fell into the category of contracts of service as distinct from contracts under which either student nurse was "an apprentice, or anything approaching an apprentice" - per Waller L.J. in the Wiltshire Police Authority case (at p.111). Mr Ryan submitted that they are apprentices or analogous to apprentices.
Granted that there is a distinction between a contract of service and a contract of apprenticeship and that the distinction is crucial for some purposes, such as the settlement of paupers, in my opinion it does not follow that a person performing work pursuant to a contract of apprenticeship is not, as a matter of law, "an employee employed in a classification specified" in clause 5 of the award, namely, "junior student nurse". Clause 39(j) defines "student nurse" as meaning "a person who is undergoing a course in general nursing, conducted by the employer" and "employer" as "the Capital Territory Health Commission" inter alia.
In the ultimate Mr Dalton submitted that the Arbitration Commission "does not have jurisdiction to make an award with respect to apprentices . . . because they are not employees". He relied upon the following passage from the judgment of Dixon, Fullagar and Kitto JJ. in R. v. Foster; Ex p. The Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 C.L.R. 138 at p.153:
"We think that the kind of relationship to which the definition in s. 4 of 'industrial matters' refers by the expressions 'employer' and 'employee' is, under another name, in substance the relation called at common law master and servant."
The passage must be read in the light of the question there under consideration and in its context, including the discussion of earlier cases which led their Honours to say (at p.152):
". . . both in New South Wales and in Queensland the view seems to have been adopted that there must be a contract of service, or a relation of service, if a man was to be an employee . . . "
Having regard to the words in that discussion of earlier cases that there must be a contract of service, "or a relation of service", if a man was to be an employee and to the words "in substance" appearing in the passage relied upon by Mr Dalton, in my opinion their Honours did not enunciate any principle that apprentices could not be - or would not normally be - employees within the meaning of the Act.
As long ago as Whybrow's Case [1910] HCA 33; (1910) 11 C.L.R. 1 the High Court dealt with prohibition proceedings relating to claims (see p.32) brought before the Arbitration Court as to the rate of wages of apprentices - and did not suggest that apprentices are not "employees" within the Act. In John Heine & Son Limited v. Pickard [1921] HCA 47; (1921) 29 C.L.R. 592 the High Court upheld the conviction of an employer for failing to pay to an employee, who was apprenticed to it by articles of apprenticeship, an amount prescribed by an award in respect of apprentices. In Fletcher v. A. H. McDonald & Co. Pty Ltd [1927] HCA 12; (1927) 39 C.L.R. 174, the High Court dealt with an award which prescribed the minimum rate of wages to be paid to apprentices. In Culbert v. Clyde Engineering Co. Ltd [1936] HCA 19; (1936) 54 C.L.R. 544 the High Court held (at p.553) that an employer committed a breach of a federal award "in that it did . . . apprentice a certain boy and did not apprentice him in accordance with the provisions of the award" (at p.551). In my view those four decisions of the High Court give support to the principle in the Junior Constables Case (supra) that the fact that an apprentice (or other person) is performing duties under a contract, the primary purpose of which is to teach that person an occupation, does not prevent that person from being an employee. As Mr Ryan pointed out, s.52 of the Act expressly contemplates the Arbitration Commission determining disputes "in which the rates of pay . . . applying to apprentices . . . are in question".
For the reasons which I have set out, in my opinion Miss Simms and Miss Pfeiffer were both "employees employed in a classification specified" in clause 5 of the award, namely, that of junior student nurse. I find that the respondent commission in each matter has committed a breach of clause 5 of the award in that it failed to pay to Miss Simms and Miss Pfeiffer the weekly rate prescribed for classification 17 in that clause. In reaching that conclusion I have not found it necessary to consider the submission put (but not elaborated) by Mr Ryan that the respondent commission, by reason of its consent to certain award provisions is estopped from denying that Miss Pfeiffer was entitled to be paid the rate prescribed by clause 5 of the award.
Notwithstanding the conclusion to which I have come on the evidence relating to Miss Simms in 1980 and 1981 and Miss Pfeiffer in 1981, it is necessary that I rule upon certain evidence which was admitted at the hearing "subject to objection". Before doing so I shall refer to the pleadings.
In his amended statement of claim the applicant Rowe alleged that the respondent commission purported to alter the conditions under which it trained student nurses, that in or about February 1980 it purported to cease taking into its employ student nurses and purported to grant scholarships to the persons the respondent commission accepted for training instead of paying them award rates. In her amended statement of claim the applicant Cooney made similar allegations. The applicant Rowe's claim related to a two year "general nursing course" at the Royal Canberra Hospital which began in 1980 whilst the claim by the applicant Cooney related to a "three year general nursing programme" at the Woden Valley and Royal Canberra Hospitals which began in 1981.
The respondent commission by its defence denied these allegations save that it admitted:
"(3) . . . that at all relevant times up until about December 1979 (it had)
employed and trained nurses and that it paid such employee
nurses, whether in
training or otherwise, in accordance with the relevant awards in force from
time to time . . .
(4) . . . that in or about February 1980 it instituted a course of student
nurse education and training and that pursuant to such
course it -
a did not pay wages to such student nurses;
b granted scholarship allowances to such student nurses."
Mr Dalton in final address conceded (T896) that the "process of negotiation" leading up to the signing of the terms and conditions document was relevant in determining the true nature of the legal relationship and therefore admissible. However, he submitted that evidence that the respondent commission treated "super-numerary" student nurses as employees throughout the nine year period 1971-1979 was irrelevant and therefore inadmissible in these proceedings in considering whether Miss Simms and Miss Pfeiffer became employees in 1980 and 1981 respectively. I accept Mr Ryan's submission that it is permissible to look at the surrounding circumstances in considering what was the true nature of the legal relationship between those two student nurses and the respondent commission. The statements of claim contain allegations by the applicants that the terms and conditions document used for student enrolment in the nurse education programme (which the two student nurses were required to sign) "does not represent the true relation and is nothing but an attempt, by means of a form, to escape industrial regulation" - per Dixon, Fullagar and Kitto JJ. in R. v. Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (supra) at pp.153-4. An employee cannot contract out of her right to be paid rates prescribed by an award made under the Act and, as Mr Ryan submitted, it can not be the law that an employer which required its employees to sign a document stating that they were not employees could thereby evade its legal obligation to pay an award rate. In any event, in the present case the terms and conditions document does not make such a statement (cp. clause 3 of the agreement set out below in the passage quoted from the A.M.P. Society v. Allan and another (1978) 52 A.L.J.R. 407).
Mr Dalton submitted that the court cannot look outside the terms and conditions document and that "the general rule is that 'verbal evidence is not allowed to be given . . . so as to add to or subtract from, or in any manner to vary or qualify the written contract.'" (Chitty on Contracts (24th Edn) paragraph 735). However, in my view the more relevant passage is paragraph 745 of that work which states, inter alia:
"Extrinsic evidence is admissible to prove the true nature of the agreement, or the legal relationship of the parties, even though this may vary or add to the written instrument."
Mr Dalton also sought to rely on the A.M.P. Society Case (supra). In that case the parties had signed a written agreement, clause 3 of which stated expressly that the relationship between the parties was "not that of Master and Servant". Notwithstanding the presence of that clause the Privy Council said (at p.409):
"The written agreement is the principal, though not the only, source of
information as to the nature of the contractual relationship
between the
parties . . . Clearly cl. 3, which, if it stood alone, would be conclusive in
favour of the Society, cannot receive effect
according to its terms if they
contradict the effect of the agreement as a whole.
Nevertheless, their Lordships attach importance to cl. 3, and they consider that the following statement by Lord Denning M.R. in Massey v. Crown Life Insurance Co. (4th November, 1977, unreported) correctly states the way in which it can properly be used: 'The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it . . . ' . . . In the present case, where there is no reason to think that the clause is a sham, or that it is not a genuine statement of the parties' intentions, it must be given its proper weight in relation to other clauses in the agreement."
In my opinion the A.M.P. Society Case does not support Mr Dalton's objection to the relevance of evidence that supernumerary student nurses enrolled in substantially the same "general nursing course" during the period 1971-1979 were accepted by the respondent commission as employees and treated as such. That material is part of the surrounding circumstances to which consideration may properly be given in determining whether "the true relationship of the parties" is that of employer and employee (cf. dictum of Lord Denning M.R., quoted in the A.M.P. Society Case). Accordingly, I have decided to overrule Mr Dalton's objection to relevance and to admit all of the evidence which was admitted at the hearing subject to objection. However, I will refer later to its weight.
I turn to the evidence admitted subject to objection. Miss Simms had applied in 1978 to become a student in the two year supernumerary general nursing course. After being awarded a Rotary Exchange Scholarship for 12 months in the United States of America she applied to defer her course. She was informed that it was not possible to grant a deferment but that the respondent commission would "keep your application open". On 16 October 1979 Miss Simms, who had written again to the respondent commission, received a reply, saying that:
"The only course to be offered next year by Royal Canberra Hospital will be
the Two Year programme and a brochure is enclosed giving
details of the
course.
If you would care to be considered for this course under the new terms and conditions please write back immediately".
The brochure enclosed differed in some respects from the equivalent brochure sent to applicants in 1979.
Mr Boardman, the chairman of the respondent commission from September 1977 until May 1980, gave evidence that the student nurses from 1971-1979 "were employees" and that the respondent commission "signed them on as employees, . . . provided the workers compensation (and) payroll tax cover . . . as we do for all other members of staff and paid them a salary". He said that this was so notwithstanding that "those nurses were not taken into account in the staff formula (used by the respondent commission in operating the hospitals). They were genuinely supernumerary. . . . they were not expected to provide service". He also said in evidence that he had "admitted in writing" that they were employees. It seems clear that had Miss Simms pursued her application in 1978 and been accepted as a student nurse for the 1979 intake of student nurses, then she would have been treated by the respondent as an employee falling within the classification of "junior student nurse" in clause 5 of the award and paid in accordance with the award.
A letter dated 19 December 1979 (Ex.W) over the signature of Mr Boardman to the applicant Rowe said, inter alia:
"Dear Mr Rowe,
Two Year Nurse Education Program in 1980
As you are aware, changes will take place in the arrangements for the two
year nursing education program at Royal Canberra Hospital,
commencing in
1980.
In view of your organisation's interest in this matter I am writing to
advise formally of the Commission's intentions and to seek
your Federation's
comments.
The most significant alteration is that those applicants accepted for the course of study in 1980 will be students rather than employees of the Commission. . . ." (underlining added)
It is to be noted in passing that in a similar (but undated) letter from Mr Boardman to Mr Rowe (also contained in Ex.W) it was expressly stated that "The most significant alteration is the change in status from employee to student of those applicants accepted for the course of study in 1980" (underlining added). By letter (undated but apparently about February 1980) to the senior assistant commissioner at the taxation office, Mr Boardman, writing as chairman of the respondent commission, (Ex.W) said:
"1. The structure of the new course is no different from the former 2 year nurse education course. However, the Commission decided that students entering the course in 1980 would be paid a student allowance in lieu of a full salary as has been paid to date." (underlining added)
A letter (Ex.W) dated 11 April 1980 from the acting chairman of the respondent commission to the chairman of the Tertiary Education Commission said, inter alia:
"The 1980 supernumerary students in the two year course are in receipt of an annual non means tested allowance of $3,500. The Commission decided to introduce this allowance in September 1979; the allowance to be indexed to nursing salary movement. Prior to granting the allowance to these students in lieu of salary, all two and three year students were paid under the 'Award' Hospital Employees etc (nursing staff ACT) and were Temporary Employees of the Commission." (underlining added)
Of course the question of whether the "supernumerary" student nurses trained by the respondent commission during the nine year period 1971-1979 were employees is a question of law, and as Cross (2nd Australian Edition 1979) expresses it (at p.507) "There is dispute as to whether admissions may be made of matters of mixed law and fact: see Phipson 12th ed para 684 and Mahoney JA in Grey v. Australian Motorists & General Insurance Co Pty Ltd (1976) 1 NSWLR 669 at 684; cf Glass JA in Grey's Case at 675." If the student nurses were not employees then the statements by Mr Boardman and the acting chairman of the respondent commission would not result in their being employees. However, where, as here, at the very least it cannot be said to be clear that the student nurses were not employees during that nine year period, then in my opinion, in considering what was the true nature of the relationship which the parties intended to create, it is permissible to take into account to some extent the evidence of Mr Boardman that he, as chairman of the respondent commission, accepted that the supernumerary student nurses from 1971-1979 were employees and to the evidence that the respondent commission itself treated them as employees. Even if evidence of statements by the respondent commission or by its chairman were not admissible, I would reach the conclusion that the supernumerary student nurses from 1971-1979 were employees of the respondent commission.
Having decided that they were employees, it is necessary to consider what changes were made by the respondent commission in respect of student nurses accepted for the 1980 two year general nursing course. The document headed "Royal Canberra Hospital School of Nursing General Nursing Course Curriculum 2 year programme 1980" (Ex.F) may be compared with the document headed "Canberra Hospital General Nursing Two Year Programme 1979" (Ex.P). I shall refer to each as the curriculum as that word was used throughout the hearing in referring to the two documents.
The 1979 curriculum (p.1) read as follows:
"History
In 1971, Canberra Hospital introduced the first two year nursing programme in
Australia, to offer supernumerary students the theoretical
and clinical
experience necessary to produce first level graduates.
Twelve students were accepted and prepared under the guidance of one Nurse
Educator, and of these, ten finished the course, passed
the New South Wales
Nurses' Registration Board examination and were able to register in the
A.C.T.
The scheme has continued without interruption since its inception and in 1974 the student intake was increased to thirty-six with additional tutorial support." (Details of the number of students in 1975, 1976, 1977 and 1978 were then given.)
The 1980 curriculum was identical.
The 1979 curriculum (p.2) read as follows:
"Philosophy
Within the framework of the aims and objectives an intellectual and functional
education will evolve, and optimal development of both
student and educator
will occur.
This provides the student with the cognisance and behaviours necessary for registration together with the resources to meet the needs of persons under his/her care."
The corresponding passage in the 1980 curriculum (p.2) read:
"Philosophy
We believe the programme enables the student to develop his/her social, psychological and nursing skills to function effectively as a first level graduate nurse, together with the cognisance and behaviours necessary for continuing professional growth."
The 1979 curriculum (p.3) stated:
"Aims of the two year programme:
To provide a basic nursing programme facilitating the development of a
competent beginning registered nurse (practitioner) through
correlation of
theory and practice.
To develop the student's ability to recognise individual needs and effectively apply the components of the nursing process to the delivery of patient centred care, through participation in the activities of the health care system."
The 1980 curriculum (p.3) was identical.
The 1979 curriculum (p.4) stated that:
"General Objectives of the Two Year Programme
That the student should:-
1 : have acquired theoretical/practical knowledge of the Social Sciences,
Biological Sciences and Medical Sciences to apply to the
nursing process.
2 : use this knowledge to develop the techniques of planning, implementing,
assessing and evaluating patient care, to provide the
patient with comfort,
treatment, safety and support.
3 : identify the nursing role, understand the role of other health professionals and recognise the need to collaborate with these other professions."
The 1980 curriculum was virtually identical apart from the omission from paragraph 2 of the words "to provide the patient with comfort, treatment, safety and support".
The 1979 curriculum contained (p.5) the following:
"Principles of student status within the two year programme:
1. To be a full time student in nursing.
2. To work within the Ward Team, having ward experiences determined by the
Course Tutor in consultation with the Ward Sister.
3. To develop nursing skills required to deliver health care in the
community.
4. That assistance in gaining educational experience be generated by the
Course Tutor and the Ward Sister.
5. To work in the Ward Team, but, be relieved of sole responsibility for
nursing service, so that he/she can be withdrawn from the
ward for further
educational experience according to the student's needs as determined by the
Course Tutor and in consultation with
the Ward Sister.
6. To have access to all educational resources within the A.C.T. irrespective
of Regional Boundaries.
7. That rostering of his/her clinical experiences will be controlled by the
Course Tutor in order to facilitate correlation of theory
with practice.
8. In order to maintain the relation between theory and practice, the student
will not be moved from the designated area for nursing
practice unless the
Course Tutor has been consulted and the alternative experience is considered
suitable.
MAJOR EMERGENCIES are excluded from this principle."
The corresponding page in the 1980 curriculum read as follows:
"Principles of Student Status Within the Two Year Programme
1. To be a full time student in nursing.
2. To assume responsibility for self directed learning using a problem solving
approach.
3. To have valid clinical experience determined by the Course Tutor in
consultation with the Ward Sisters.
4. To develop nursing skills required to deliver health care in the
community.
5. To have access to all educational resources within the A.C.T.
6. That rostering of his/her clinical experiences will be controlled by the Course Tutor in order to facilitate correlation of theory with practice."
As the respondent commission said of the 1980 course in its letter to the senior assistant commissioner of taxation set out earlier, "The structure of the new course is no different from the former 2 year nurse education course". The terms and conditions document for signature by student nurses in 1980 had been drafted in such a way that, as Mr G. Faichney, assistant commissioner of the respondent commission said by minute, dated 12 November 1979, to Mr Boardman (Ex.R.12) "Conditions that might have the appearance of conditions of employment have been omitted, e.g. entitlement to uniforms . . .". The brochure for 1980 differed from the 1979 brochure, e.g. by omitting references to current rates of pay and such passages as "rostered for duty any time over the seven-day week". There were other changes including that the 1980 student nurses normally worked morning shifts, they were not required to fill in time sheets, were not included in the roster of staff for the ward and they were to be withdrawn from the wards if they were asked to give "ward service". They also were at times taken out of the ward for theoretical instruction and they could be taken out of the ward by the nurse educator if the supervision in the ward was inadequate. They were instructed to tell their nurse educators if the number of ward staff fell below the number allocated. I have dealt earlier with the evidence as to "ward service". In my opinion none of the changes effected in 1980 or 1981 had the effect that supernumerary student nurses in 1980 were not employees.
There remains for consideration the question of whether a penalty should be imposed in respect of either or both of the two breaches of the award which I have found to have been committed by the respondent commission. The maximum penalty that may be imposed by this court under s.119(1) of the Act in respect of a breach of a term of the award is $1,000. That figure leaves relatively little scope for argument as to the amount of penalty that is appropriate and probably explains why neither counsel for the respondent commission nor counsel for the applicant Rowe put any submissions as to penalty or sought an opportunity to do so later. In his final address Mr Ryan (in reply to a question) said that he did not wish to put any submissions at this stage. However, I do not consider that a further hearing on this aspect is necessary and it is desirable that an order be made without unnecessary delay.
I assume that the respondent commission has not previously breached any award under the Act. I also take into account the fact that, on the evidence of Mr Boardman, the commission was placed in a very difficult position by reason of the staff ceiling imposed upon the respondent commission by the Federal Government. Speaking of the Government's decision to reduce the staff ceiling figure fixed for the respondent commission, Mr Boardman said that it "was too hard an imposition on the commission at that stage", although he added that he believed that the Government "did its best to be fair to us". On Mr Boardman's evidence ultimately the commission was forced "to accept it because that is the level set", although it was "a matter of continuing argument". Previously he had told Miss James that he "could see no alternative but that the two year course would have to be abandoned". The decision to attempt to change from salary to a scholarship basis was undoubtedly partly to save costs. The respondent commission had professional nursing advice that the two year supernumerary course was not only a superior form of training nurses, but "was in Australian terms outstanding" so that, in Mr Boardman's view, "some step to retain the course because of its quality was required". It was in those circumstances that the decision was made by the respondent commission that, although "the structure of the new course is no different . . . students entering the course in 1980 would be paid a student allowance in lieu of a full salary as has been paid to date" - see Mr Boardman's letter to taxation office quoted earlier. Accordingly, the respondent commission decided that the student nurses in 1980 would be required to sign a form which differed from the one used previously - from which form "conditions that might have the appearance of conditions of employment . . . were to be omitted".
Mr Boardman denied that the respondent commission gave instructions "to make sure it took effect from a legal point of view" and in re-examination said that he did not remember seeking any legal advice either as to whether the action "was beyond our power" or as to its "compatibility with what had been done before . . .". He added "I do not think the legality of the matters . . . actually entered into our considerations" and that he "did not have any fears whatsoever that the legality of it would be questioned". I accept that the respondent commission did not deliverately set out to breach the award. However, on that evidence the commission decided to depart from its own practice of the previous nine years (i.e. of treating supernumerary student nurses as employees) without even considering whether it had any legal power to grant scholarships and without even considering whether its action might be a breach of the award in respect of which it could be sued for a penalty under the Act.
To act in such a way without obtaining legal advice was reckless and irresponsible conduct by the Capital Territory Health Commission which was a body required by the Ordinance under which it was established to "perform its functions in accordance with any directions given by the Minister". Notwithstanding the "budgetary constraints" and the Government imposed staff ceilings under which the commission was operating at the time, the breach of the award can not be regarded simply as some momentary aberration. Had that been the case the respondent could have taken time to reflect upon the matter and seek legal advice and possibly taken steps to rectify its breach. In June 1981 the respondent commission committed a further breach of the 1980 award in respect of Miss Pfeiffer.
I am not prepared to find the two breaches "to have arisen out of a course of conduct" by the respondent within the meaning of those words in s.119(1A) of the Act. The breach in respect of Miss Simms in November 1980 resulted from the respondent commission's decision in 1979 in respect of the 1980 two year course. Any other breaches in respect of student nurses enrolled in the 1980 two year course would have arisen out of the one course of conduct. However, the breach in respect of Miss Pfeiffer, which occurred in June 1981, arose from the respondent commission's decision in respect of the three year course for supernumerary student nurses which began in 1981. I have noted the smallness of the amounts paid relative to the award rate. The respondent commission was aware of this at the time of its decision as the report to it by Miss James (the director of nursing) said "There is considerable saving in adopting a student stipend for 2-year students as opposed to student salaries" (Ex.9). In all the circumstances, including the fixation by Parliament of a maximum penalty of $1,000, I consider that an appropriate penalty in respect of each of the two breaches of the award is an amount of $500. Under s.120 of the Act I order in matter A.C.T. No. 2 of 1981 that the whole of the penalty be paid by the respondent to the Hospital Employees Federation and in matter A.C.T. No. 3 of 1981 that the whole of the penalty be paid by the respondent to the Royal Australian Nurses Federation.
The further hearing of both matters is adjourned to a date to be fixed to enable the applicants in each case to pursue, if necessary, their applications for an order that all trainee nurses who have been granted such scholarships be paid the underpayments due pursuant to the appropriate awards.
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