Tasmanian nurses win postgraduate allowance entitlement

Cases

Tasmanian nurses win postgraduate allowance entitlement

The State of Tasmania will be subject to penalties for failing to pay a group of nurses a postgraduate allowance in accordance with the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001.

WantToReadMore

Get unlimited access to all of our content.

 

The State of Tasmania will be subject to penalties for failing to pay a group of nurses a postgraduate allowance in accordance with the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001.  

The contested clause (13.3) provides that an employee who obtains a relevant postgraduate qualification and who works in an area relevant to that postgraduate qualification will be paid an allowance of 4 per cent for a graduate certificate, 6.5 per cent for a postgraduate diploma or degree and 7.5 per cent for a masters or doctorate.

The State contended that clause 13.3 of the agreement was 'too vague to be enforceable'.

Justice Marshall dismissed this claim: 'It would be mischievous to seriously contend that a person who has a postgraduate qualification as a midwife is not working in an area that is relevant to her qualification when employed and working as a midwife. No amount of discussion in a working group could contradict that position'.

Background

The Australian Nursing Federation sought the imposition of a penalty on the State of Tasmania for failing to pay certain named employees a postgraduate allowance, in accordance with the provisions of clause 13.3 of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001.

As well as the postgraduate pay allowance, clause 13.3 also notes that the Department of Health and the unions will establish a working group to agree on what qualifications will be considered relevant and the areas of work to which those qualifications relate.

Evidence from the former Executive Director of Nursing, Southern region, in Tasmania’s Department of Health and Human Services said nurses could complete hospital-based training and become members of the hospital-specific Graduate Nurse Association.

Alternatively, from 1991, they could pursue general nurse training through the University of Tasmania, where students enrolled in a Bachelor of Nursing. 

The authorising board did not distinguish between qualifications obtained through hospital training and qualifications obtained through tertiary education. Once registered, a general nurse (either hospital or tertiary trained) could apply to undertake a variety of courses in nursing. She said such courses 'have been given a variety of titles including post-registration, post-basic and postgraduate'.

Findings

The State argued that clause 13.3 of the agreement was 'too vague to be enforceable' and further, was 'unenforceable as being only an agreement to enter an agreement, which leaves essential contractual provisions for further negotiation between the parties'. 

Justice Marshall disagreed, saying the clause clearly provided for the payment of an allowance to a person covered by the agreement on the satisfaction of two conditions: 

  • the person has obtained a relevant postgraduate qualification; and
  • the person works in an area relevant to that postgraduate qualification.

'The fact that clause 13.3 also provides for the establishment of a working group to reach agreement on what qualifications will be considered relevant to what work, cannot deny that there will be factual situations (as with the employees who are named in the schedule) where it will be clear that certain qualifications will relate to actual work done.

'The fact that the parties to the agreement may, at a later stage, to avoid debate, set out clearly what qualifications relate to what work, cannot deny the obligation of the state to pay the allowance to those who unambiguously qualify for it.'

Justice Marshall said the main question for the court was what was a 'postgraduate qualification' in the context of the nursing industry in Tasmania. He stressed that it was vital this question be viewed in context, rather than from a more general perspective. 

He found no doubt that the term 'postgraduate qualification was not intended to have a meaning restricted to a qualification obtained after an undergraduate degree at a tertiary institution'. 

He said the former executive director of nursing’s 'impressive and uncontradicted' account of the history of nursing in Tasmania, 'tells against the restricted meaning' proposed by the employer.

Justice Marshall also noted that when construing the agreement, assistance could be gleaned from the relevant award, being the instrument underpinning the agreement. He found the salaries clause in the award interchanged the terms 'postgraduate training' and 'post-basic training' in a way that supported a less restrictive meaning.

He concluded that clause 13.3, properly construed, did entitle nurses with secondary qualifications working in a relevant field to receive an allowance in recognition of attainment. 

He agreed that the employer was in breach of its obligation to pay the employees named in the schedule their postgraduate allowance in accordance with this interpretation of the clause. 

See: Australian Nursing Federation v State of Tasmania, Federal Court of Australia (Tasmania District Registry) T 5 of 2002 – Marshall J - (18 December 2002).

 
Post details