Australian Nursing Federation & Ors v Alcheringa Hostel Incorporated [2003] FCA 549 (17 April 2003)

Last Updated: 5 June 2003

FEDERAL COURT OF AUSTRALIA

Australian Nursing Federation & Ors v Alcheringa Hostel Incorporated

[2003] FCA 549

AUSTRALIAN NURSING FEDERATION, LORNA COOKE, LEANNE EASTON, NORMA EVERETT, MAXINE HARROP, LYNETTE HARVEY, CHRIS HIGGS, SALLY HIGGS and JENNIFER WOLFE v ALCHERINGA HOSTEL INCORPORATED (ABN 74 874 082 136)

V251 OF 2003

NORTH J

17 APRIL 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 251 OF 2003

BETWEEN:	AUSTRALIAN NURSING FEDERATION FIRST APPLICANT
	LORNA COOKE SECOND APPLICANT
	LEANNE EASTON THIRD APPLICANT
	NORMA EVERETT FOURTH APPLICANT
	MAXINE HARROP FIFTH APPLICANT
	LYNETTE HARVEY SIXTH APPLICANT
	CHRIS HIGGS SEVENTH APPLICANT
	SALLY HIGGS EIGHTH APPLICANT
	JENNIFER WOLFE NINTH APPLICANT
AND:	ALCHERINGA HOSTEL INC RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	17 APRIL 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The Respondent reinstate each of the 2^nd to 9^th applicants to the employment held by them before their termination on 11 April 2003.

2. The respondent is restrained from giving to the said applicants any direction to administer any medication to any resident of the Alcheringa Residential Aged Care Facility at 44 Rutherford Street Swan Hill, Victoria.

3. By 24 April 2003 each of the said applicants is to repay to the respondent the following amount received by way of notice, severance, annual leave, and long service leave:

LORNA COOKE $21,094.39

LEANNE EASTON $14,558.98

NORMA EVERETT $5,121.13

MAXINE HARROP $14,743.24

LYNETTE HARVEY $20,072.72

CHRIS HIGGS $7,920.96

SALLY HIGGS $5,311.48

JENNIFER WOLFE $6,506.60

4. There be liberty to the parties to apply.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 251 OF 2003

BETWEEN:	AUSTRALIAN NURSING FEDERATION APPLICANT
	LORNA COOKE SECOND APPLICANT
	LEANNE EASTON THIRD APPLICANT
	NORMA EVERETT FOURTH APPLICANT
	MAXINE HARROP FIFTH APPLICANT
	LYNETTE HARVEY SIXTH APPLICANT
	CHRIS HIGGS SEVENTH APPLICANT
	SALLY HIGGS EIGHTH APPLICANT
	JENNIFER WOLFE NINTH APPLICANT
AND:	ALCHERINGA HOSTEL INC RESPONDENT

JUDGE:	NORTH J
DATE:	17 APRIL 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This matter was heard as an urgent application for interlocutory orders. The first applicant is an organisation of employees whose members are nurses. The second to ninth applicants are Division 2 nurses (the Division 2 nurses) who were employed by the respondent until 11 April 2003. The respondent operates a residential aged-care facility in Swan Hill, the Alcheringa Residential Aged Care Facility (the hostel).

2 The applicants allege that the respondent has breached s 298K of the Workplace Relations Act 1996 (Cth) (the Act) by dismissing the Division 2 nurses from their employment at the hostel for reasons prohibited under s 298L. Emphasis was placed on the prohibited reason set out in s 298L(1)(h), namely that the Division 2 nurses are entitled to the benefit of an industrial instrument. The further reason alleged is that set out in s 298L (1)(j), namely, that the applicants proposed to participate in proceedings under an industrial law.

3 Pending the hearing and determination of this matter, the applicants seek interlocutory relief by way of, inter alia, an order that the respondent reinstate the dismissed employees to the position of Division 2 nurses and accord to each such employee "the same position, role, duties, hours of work and rosters as were in existence immediately prior to their termination". The applicants must show that there is a serious issue to be tried, and that the balance of convenience is in their favour in order to secure the orders they seek.

4 Mr Niall, who appeared as counsel for the applicants, contended that the applicants had established a serious issue to be tried. The applicants argued that by Reg 45 of the Drugs, Prisons & Controlled Substances Regulations 1995, Division 2 nurses are not permitted to administer medications and that cl 57 of the Nurses (Victorian Health Services) Award 2000 (the Roping in Award) prohibits an employer giving a direction in breach of Reg 45. They allege that the Division 2 nurses were terminated in response to a proposed court action by the applicants for breach of cl 57 of the Roping in Award by the respondent. After hearing the case put on behalf of the applicants, Mr Turner, who appeared on behalf of the respondent, conceded that there were serious issues to be tried. This was a proper and correct course for the respondent to take in the circumstances of this case. Consequently, the area of contention is whether the balance of convenience favours the grant of interlocutory relief.

5 On this issue, the applicants relied on evidence of the financial hardship caused by the Division 2 nurses' loss of employment. The affidavit of Paul Francis Gilbert, an industrial officer employed by the first applicant, deposes to the circumstances of personal hardship experienced by the Division 2 nurses. Mr Niall also asked the Court to infer that if the Division 2 nurses were not reinstated they would likely experience some distress caused by the period of unemployment. This submission followed evidence that it was unlikely that the applicants could obtain alternative employment in the period between now and the hearing of the application. The opportunities for employment in the Swan Hill area of regional Victoria are limited and the major alternative place of employment for Division 2 nurses is under the control of the same temporary CEO as the CEO of the respondent.

6 Mr Turner responded that it was doubtful that the Division 2 nurses would experience financial hardship by reason of the Court refusing an order of reinstatement, because they have already received substantial redundancy payments from the respondent.

7 The respondent also contended that to reinstate the Division 2 nurses would be inconvenient to the respondent. Mr Turner relied upon evidence set out in the supplementary affidavit of Ian Fisher, sworn on 17 April 2003, to demonstrate the hardship that the respondent would suffer. Firstly, Mr Fisher stated that the respondent would be unable to recover wages paid, and other costs of employment, should it succeed at trial. However, Mr Turner accepted that this argument would have little or no force if the first applicant gave an undertaking as to damages. Mr Niall, in reply, indicated his instructions that the first applicant would give the usual undertaking as to damages.

8 Secondly, Mr Fisher stated:

"Reinstatement is likely to cause disharmony/tension at the workplace. If we direct the Division 2 nurses to administer medications it will cause tension between management and them. If we do not direct them to administer medications it will cause tensions with our personal care workers who perform the same duties, plus administer medications and who, depending on their grading, may be paid less than the Division 2 nurses. From discussions I am aware of, six personal care workers will "go" if the Division 2 nurses are reinstated. Then, if the Division 2 nurses refuse to administer medications, we will have insufficient staff to administer medications and disharmony/tensions in the workplace could compromise our re-accreditation due in May 2003, that could result in a loss of funding."

9 I have given careful consideration to the matters raised by Mr Fisher and elaborated upon by Mr Turner. The disharmony and tension, which Mr Fisher says might arise between management and the Division 2 nurses if the respondent directs the nurses to administer medication, can be addressed by an order of the Court restraining the respondent from giving such a direction. An order of this kind is justified in light of the respondent's concession that the applicants have an arguable case. Once the restraint against the respondent is seen by management to come from the working out of the order of the Court, there is no basis for the fear that there will be tension between management and the Division 2 nurses on this account.

10 Next, Mr Fisher stated that tension might be created between personal care workers, who will be administering medication, and the Division 2 nurses who will not. However, this arrangement has been in place since June 2002 and the affidavit of Mr Fisher does not suggest that the situation has produced tension in this time. His speculation that it will do so in the future is presented by a single assertion to that effect. Whilst it is important that the Court must take care not to overlook the possibility of tension created in the workplace as a result of orders of the Court, I am not satisfied that the evidence establishes a real likelihood that such tensions would arise. However, given the importance of the issue, the parties may return to the Court for further orders if the difficulties eventuate.

11 Mr Fisher then referred to discussions from which he became aware that six of the personal care workers would leave if the Division 2 nurses were reinstated and, consequently, there would be insufficient staff available to administer medications. Again, this evidence is of the briefest nature. Mr Fisher was called to give oral evidence in respect to who was involved in the discussions. He explained that he was speaking to Ms Ragh, a consultant engaged by the respondent to review its organisation, who told him what she had heard. Given these circumstances I am unable to place much weight on this part of Mr Fisher's evidence. Again, the Court can review the matter if an issue in respect to sufficiency of staff arises.

12 Finally, Mr Fisher referred to the danger that tensions in the workplace could compromise the respondent's re-accreditation, which would result in a loss of funding. This is indeed a serious issue. However, as it is stated in two lines and was not addressed by Mr Turner in oral submissions, it is difficult to assess the gravity of this potential problem.

13 Upon consideration of all the above factors, I accept the evidence that the Division 2 nurses would have difficulty in obtaining alternative employment in the area around Swan Hill. I reject the respondent's argument that the case for financial hardship has not been made out because of the payment of the lump sums for redundancy. An assumption that the Division 2 nurses can live on their accrued entitlements pending the outcome of the litigation faces a number of difficulties. First, the amount of accrued entitlements varies significantly in each case from between $5,121.13 and $21,094.39. Second, lack of financial resources is not the only detriment flowing from unemployment. These factors outweigh the inconvenience which the respondent has shown would be suffered by it. Thus, the balance of convenience favours the making of interlocutory orders.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 5 June 2003

Counsel for the Applicants:	Mr R Niall
Solicitor for the Applicants:	Ryan Carlisle Thomas
Counsel for the Respondent:	Mr J Turner
Solicitor for the Respondent:	Michael P Rahilly
Date of Hearing:	17 April 2003
Date of Judgment:	17 April 2003