FEDERAL COURT OF AUSTRALIA

Australian Nursing Federation v State of Tasmania [2002] FCA 1573

INDUSTRIAL LAW – application for a penalty pursuant to s 178 of the Workplace Relations Act 1996  (Cth) – whether a failure to pay hospital trained nurses a post-graduate allowance amounts to a breach of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 - construction of cl 13.3 of Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 – whether cl 13.3 is unenforceable for vagueness – whether cl 13.3 is remains unenforceable until the working group reaches agreement on the issue of what qualifications are relevant and the areas of work to which the qualifications will relate – whether it is proper for the Court to insert words into an industrial agreement - whether in the circumstances the Court should insert words into the Agreement - whether the proper construction of the terms “graduate” and “post-graduate” in cl 13.3 should reflect the understanding of the terms as understood within the industry in which the Agreement applies.

Workplace Relations Act 1996 (Cth) ss 170, 178, 179A, 356

Tasmanian State Service Act 1984 (Tas)

Nursing Act 1995 (Tas)

Federal Court Rules O 29 r 2

Nurses (Tasmanian Public Sector) Enterprise Agreement 2001

Nurses (Tasmanian Public Sector) Award 1992

Printing and Kindred Industries Union v Davies Bros (1986) 18 IR 444, cited

City of Wanneroo v Holmes (1989) 30 IR 362, referred to

Secretary, Department of Health and Ageing v Nguyen [2002] FCAFC 416, cited

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, applied

Short v F W Hercus Pty Ltd (1993) 40 FCR 511, applied

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited

Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175, followed

AUSTRALIAN NURSING FEDERATION v STATE OF TASMANIA

T 5 of 2002

MARSHALL J

MELBOURNE (heard in Hobart)

18 DECEMBER 2002

THE COURT ORDERS THAT:

1.         The proceeding be adjourned, subject to any further order, to a directions hearing on 7 February 2003 at 10.00 am in Melbourne, via video link to Hobart.

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

REASONS FOR JUDGMENT

1                     On 7 June 2002, the applicant, Australian Nursing Federation (“the ANF”) filed in the Tasmania District Registry of the Court, an application pursuant to s 178 of the Workplace Relations Act 1996 (Cth) (“the WR Act”).

2                     Paragraph 1 of the application sought the imposition of a penalty upon the respondent, the State of Tasmania (“the State”), for failing to pay certain employees named in the Schedule to the application a post-graduate allowance, in accordance with the provisions of cl 13.3 of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2001 (“the Agreement”).

3                     Paragraph 2 of the application sought the imposition of a penalty upon the State for failing to pay Ms Andrea Tidy an annual leave allowance, in accordance with cl 13 of the Nurses (Tasmanian Public Sector) Award 1992 (“the Award”).

4                     Consequential relief was also sought in respect of underpayments and interest thereon, in accordance with ss 178(b) and 179A of the WR Act.

5                     The application was amended on 13 August 2002. Following the amendment, the Schedule to the application referred to nine employees: Michael Baker; Nicola Bonde; Lynette Dean; Jennifer Parker; Catriona McDonald; John Lancaster; John Perry; Leanne Turner and Anne Looney.

6                     The issues raised concerning Ms Tidy, in paragraph 2 of the amended application, were referred to mediation before Registrar Parrot. The mediation did not entirely resolve those issues. On 26 November 2002, the Court made an order by consent, pursuant to O 29 r 2 of the rules of Court, that “the proceeding insofar as it concerns the claim in respect of Andrea Tidy … be decided separately from all other issues in the proceeding”.

7                     On 2 December 2002, the Court heard evidence and submissions concerning the issues raised by paragraph 1 of the amended application. Mr S Howells, of counsel, appeared with Ms C Andrades for the ANF. Mr T Ellis SC appeared for the State. Counsel agreed that the Court should determine whether or not the State has breached the Agreement and make ensuing orders as follows. In the event that it was decided that the Agreement had not been breached, paragraph 1 of the amended application would be dismissed. In the event that the Court determined paragraph 1 against the State, the Court would adjourn the proceeding to a directions hearing to enable any issues concerning penalty, underpayments and interest, together with the resolution of paragraph 2 of the amended statement of claim, to be further programmed.

8                     Consequently, these reasons for judgment only deal with whether the State is in breach of cl 13.3 of the Agreement.

The statutory context

9                     Section 178(1) of the WR Act provides, so far as is material, that:

“…where an organisation or person bound by…a certified agreement breaches a term of the … agreement, a penalty may be imposed by the Court….”

The Agreement

10                  The ANF is an organisation of employees registered pursuant to the WR Act. The State, through the Minister administering the Tasmanian State Service Act 1984 (Tas), is a party to the Agreement. The ANF is also a party to the Agreement. The Agreement was certified by Deputy President Leary of the Australian Industrial Relations Commission (“the Commission”) on 25 May 2001, pursuant to s 170LT of the WR Act.

11                  Clause 13 of the Agreement is entitled “Allowances”. Clause 13.3 of the Agreement is headed “Post Graduate Allowance” and provides as follows:

“13.3   Post graduate allowance

An employee who obtains a relevant post graduate qualification and who works in an area relevant to that post graduate qualification shall be paid  an allowance while they continue to be employed in that relevant area. The allowance to be paid is:

Graduate Certificate                                                  4%      

Post graduate Diploma or Degree                             6.5%

(other than an undergraduate nursing degree)

Masters or Doctorate                                                 7.5%

The parties will establish a working group to reach agreement on what qualifications will be considered relevant and the areas of work to which those qualifications relate.

The Post Graduate Allowance will be paid from the first full pay period on or after agreement is reached on relevant qualifications but in any case shall be no later than 1 April 2001.”

12                  Clause 3 of the Agreement provides that:

“This Agreement is made in respect of people employed in the Department of Health and Human Services and the Department of Justice covered by the Nurses (Tasmanian Public Sector) Award 1992.”

13                  The Award is binding, inter alia, on the ANF and its members and upon the State in respect of all employees, whether members of the ANF or not.

14                  Clause 4(a) of the Agreement provides that:

“Employees covered by this agreement are, except for this agreement, subject to the [Award]. Where any inconsistency occurs between this Agreement and the Award, this Agreement shall prevail to the extent of the inconsistency.”

15                  Prior to the certification of the Agreement, the Secretary of the Department of Health and Human Services wrote to “all nurse employees” covered by the Agreement. The undated letter contained accompanying explanatory notes concerning the Agreement. The letter and the notes were forwarded to nurses in Tasmania in an effort to secure their endorsement of the Agreement in a postal ballot which was conducted in April 2001. The letter and the accompanying explanatory notes were received in evidence without opposition.

16                  On the topic of the “Post Graduate Allowance”, the explanatory notes said that:

“New allowances will be payable to employees who hold relevant post graduate qualifications while they work in an area that relates to the qualification. The percentages are payable on a nurse’s salary. There will be a joint process between the Department and the unions to establish which qualifications are relevant to which areas of work.”

17                  At the time of the tender of the explanatory notes, I was concerned about whether their admission into evidence would offend the principle that the Court is not entitled to receive, in evidence, material which shows what the parties to an award or agreement hoped to achieve by its making; see, for example, Printing and Kindred Industries Union v Davies Bros (1986) 18 IR 444 at 451. However, Mr Howells submitted that it did not offend that principle to admit material which was put before nurses prior to their voting on whether to accept the agreement, as part of the background factual matrix. Mr Ellis did not dissent from that view. The Court admitted the material in that spirit, and in circumstances where, it appears, its only relevance is to a submission made by Mr Ellis that the “joint process” referred to is a pre-condition to the payment of the allowance. It is sufficient to say that nothing in the explanatory notes supports that view. The first sentence of the part of the notes quoted from at [16] above reflects a stand-alone obligation to make the payment for nurses who qualify for it.

The nurses

18                  The nurses named in the Schedule to the amended application are members of the ANF who are employed by the State in various health care facilities operated by it.

19                  Mr Baker is employed as a clinical Registered Nurse, level 2, in the Day Procedure Unit at Royal Hobart Hospital. Mr Baker gave evidence that he “graduated with a Diploma of Applied Science (Nursing) from Avondale College/Sydney Adventist Hospital, New South Wales” in or about February 1985. At about that time he obtained registration and a practising certificate from the Nurses Registration Board of New South Wales. In about March 1986, Mr Baker first obtained registration and a practising certificate from the Nurses Board of Tasmania (“the NBT”). In or about September 1987, Mr Baker successfully completed the Intensive Care Unit Course at the Royal Hobart Hospital. He received a certificate in respect of the completion of that course.

20                  Mr Baker currently works in “an acute care environment doing anaesthetics and recovery work”. He also cares for “the unconscious patient plus patients undergoing DC reversions for Cardiac Arrhythmias”.  Mr Baker’s current employment is relevant to his intensive care qualification, which he obtained in 1987.

21                  Ms Bonde is employed as a level 1, registered nurse in the Intensive Care Unit at the North West Regional Hospital. Ms Bonde undertook her general nurse training at that hospital. She was awarded a General Nursing Certificate at a graduation ceremony held at the Burnie Civic Centre in about October 1989. Ms Bonde first obtained registration and a practising certificate from the NBT in 1989. In about October 1994, Ms Bonde successfully completed the Intensive Care Post-Basic Course at the Royal Hobart Hospital.

22                  In her employment at the North-West Regional Hospital, Ms Bonde is frequently rostered as the nurse in charge of her shift in the Intensive Care Unit. Her current employment is relevant to her intensive care qualification, which she obtained in 1994.

23                  Ms Dean is employed as a level 2, registered nurse/midwife at the Royal Hobart Hospital. She is the team leader at the antenatal clinic at that hospital. Ms Dean completed her general nurse training in 1981 at St John’s Hospital in Hobart. She first obtained registration and a practising certificate from the NBT in 1981. In February 1994, she obtained a midwifery certificate after successfully completing a Midwifery Course at the Royal Hobart Hospital. Ms Dean then obtained endorsement as a midwife on her practising certificate from the NBT.

24                  In her employment at the Royal Hobart Hospital, Ms Dean works in an area relevant to the midwifery qualification, which she obtained in 1994.

25                  Mr Lancaster is employed as a level 1, registered nurse within the Renal Unit at the Royal Hobart Hospital. He completed his general nursing training at the Austin Hospital in Melbourne in 1981. Mr Lancaster obtained registration as a nurse and a practising certificate from the Victorian Nursing Board in 1981. In about June 1983, he first obtained registration and a practising certificate from the NBT. In about August 1984, Mr Lancaster successfully completed the Intensive Care Post-Basic Course at the Royal Hobart Hospital. He was awarded a certificate in respect of his completion of that course.

26                  In November 2001, Mr Lancaster successfully completed the post-registration program in Nephrology Nursing Care and was awarded a certificate in respect of the completion of that course. Mr Lancaster gave evidence that his nephrology and intensive care certificates are relevant to his current area of work.

27                  Ms Looney is employed as a level 2, registered nurse/midwife at the Royal Hobart Hospital. She completed her general nurse training at that hospital in 1976. She first obtained registration and a practising certificate from the NBT in 1976. In June 1980, Ms Looney successfully completed a Midwifery Course at the hospital. At that time, her practising certificate was endorsed by the NBT to reflect that she had obtained a midwifery certificate.

28                  In her employment at Royal Hobart Hospital, Ms Looney works in an area relevant to the midwifery qualification, which she obtained in 1980.

29                  Ms McDonald is employed as a level 2, registered nurse in the operating theatre at the Launceston General Hospital. She completed her general nurse training in Scotland in 1968. Ms McDonald obtained registration from the General Nursing Council in Scotland in June 1968. In March 1969, she successfully completed a post-registration Theatre Course in Glasgow and was awarded a certificate in recognition of so doing. In January 1985, Ms McDonald first obtained registration and a practising certificate from the NBT.

30                  In her employment at the Launceston General Hospital, Ms McDonald works in an area relevant to the theatre qualification which she obtained in 1969.

31                  Ms Parker is employed as the Clinical Nurse Consultant/Manager of the Intensive Care Unit at the Launceston General Hospital. She completed her general nurse training at the Royal Hobart Hospital in October 1975. Ms Parker was awarded her general nurse training certificate at a graduation ceremony held in Hobart. She first obtained registration and a practising certificate from the NBT in 1975. In March 1980, Ms Parker successfully completed the post-registration Intensive Care Course at the Royal Hobart Hospital. She received a certificate as a consequence of so doing at a graduation ceremony, at which, according to her evidence, “(s)tudents from the post-graduate courses graduated with the general students at the graduation ceremony”.

32                  Ms Parker gave evidence that, as the nurse in charge of the Intensive Care Unit at Launceston General Hospital, she is required to have a certificate in intensive care nursing. Clearly, in her current employment, Ms Parker works in an area relevant to the intensive care qualification, which she obtained in 1980.

33                  Ms Perry is employed as a registered nurse in the psychiatric ward at the Launceston General Hospital. She completed her general nurse training at the Sale Base Hospital in 1977. In November 1979, Ms Perry successfully completed a course in Psychiatric Nursing at Hobson Park Hospital in Traralgon. She was awarded a certificate in recognition of so doing. Ms Perry was first registered as a nurse by the NBT in 1994. Her practising certificate was endorsed to enable her to practice psychiatric nursing.

34                  Ms Perry, in her employment at the Launceston General Hospital, works in an area relevant to the psychiatric nursing qualification, which she obtained in 1979.

35                  Ms Turner is employed as a registered nurse, level 2, in the operating theatre at the North West Regional Hospital in Burnie. She initially qualified as an enrolled nurse in 1992. In November 1997, Ms Turner completed a Bachelor of Nursing bridging course at the University of Tasmania. Her enrolled nurse qualification was then upgraded to that of a registered nurse. She first obtained registration and a practising certificate from the NBT in December 1997. In 1999, Ms Turner was awarded a “Graduate Certificate in Peri-operative Nursing” by the New South Wales College of Nursing. She undertook that course through distance education.

36                  Ms Turner gave evidence that her peri-operative nursing certificate qualification is relevant to her area of work in the operating theatre at the North West Regional Hospital.

37                  I accept the unchallenged evidence of each of the nine nurses referred to in the Schedule to the amended application.

Ms Turnbull’ evidence

38                  Ms Cynthia Turnbull has had a long and distinguished career as a nursing professional in Tasmania. She obtained her general nursing certificate at the Royal Hobart Hospital in 1962. Subsequently, she obtained the following qualifications:

·        Midwifery Certificate, Queen Alexandra Hospital, Hobart, 1963;

·        Diploma in Nursing Education, Armidale, College of Advanced Education, 1977;

·        Family Planning Certificate, Hobart, 1979;

·        Bachelor of Education, University of Tasmania , 1985; and

·        Master of Educational Studies, University of Tasmania, 1990.

39                  From 1991 to 1992, Ms Turnbull was the Acting Director of Nursing at the Royal Hobart Hospital. From 1993 to 1996, she was the Executive Director of Nursing, Southern Region in the State’s Department of Health and Human Services. In that position, Ms Turnbull had direct responsibility for nursing services in Southern Tasmania. In addition, Ms Turnbull was a member of the Management Committee of the Royal Hobart Hospital. She relieved the Chief Executive Officer of that hospital as required. Ms Turnbull retired in 1996.

40                  Ms Turnbull gave the following evidence about the practice of nursing in Tasmania:

·        To practice as a nurse in Tasmania, one is required to hold registration, pursuant to the Nursing Act 1995 (Tas), and also to hold a current practicing certificate.

·        The basic hospital certificate obtained by nurses that enables them to seek registration with the NBT, is known as a “General Nursing Certificate”.

·        The NBT monitors standards of nursing education, determines standards for the accreditation of nursing schools and courses in nursing, and provides accreditation for schools of nursing and nursing courses. The NBT also authorises registered nurses to practice in restricted areas of nursing practice such as midwifery and psychiatric nursing.

·        Until 1989, persons seeking to become registered nurses were required to undertake a period of work education in approved hospitals. Such hospitals were usually public hospitals but sometimes were private hospitals.

41                  Ms Turnbull described hospital based training in the following way:

“This form of training and education was and is known as ‘hospital based training’, and in most cases require(d) practical and clinical experience, together with satisfactory passes in theoretical examinations in order for an applicant to be accepted for registration or enrolment. On successful completion of the program, a nurse graduated and was awarded a General Nursing Certificate.”

42                  Ms Turnbull also gave evidence that courses were available in advanced or specialty areas such as Midwifery, Intensive Care, and Peri-Operative. As to such courses, Ms Turnbull said that:

“Qualifications acquired in advanced or specialty areas were commonly known as post-graduate qualifications.”

43                  Further, Ms Turnbull gave evidence that:

“Nurses completing such hospital based training were entitled to become members of the Hospital specific Graduate Nurse Association.”

44                  Ms Turnbull gave the following evidence about developments in general nurse training from 1989:

·        General nurse training was transferred to the Tasmanian State Institute of Technology (“the TSIT”), where students enrolled in a Diploma of Applied Science (Nursing).

·        The NBT was still required to register nurses and grant practicing certificates.

·        Upon registration (“now graduating with a Diploma rather than a certificate”), a nurse was able to apply to undertake specialty training in nursing, within the hospital setting.

·        In 1991, the TSIT became part of the University of Tasmania, where students enrolled in a Bachelor of Nursing.

·        The NBT was still required to register nurses obtaining the Bachelor of Nursing degree and grant them practicing certificates.

·        The NBT does not distinguish between qualifications obtained through hospital training and qualifications obtained through tertiary education.

·        Hospital based courses in midwifery were offered by the Royal Hobart Hospital until 1997.

·        Once registered, a general nurse (either hospital or tertiary trained), can apply to undertake a variety of courses in nursing, such courses which “have been given a variety of titles including post-registration, post basic and post-graduate”.

·        When a nurse is employed as a registered nurse, “there is no distinction in the duties and responsibilities of a hospital trained graduate or a university graduate”.

45                  Ms Turnbull gave evidence that she had read and considered the affidavit evidence provided by the nurses named in the Schedule to the amended application. Such relevant evidence is referred to at [18] to [36] above. There was no cross-examination upon those affidavits. At paragraph 57 of her affidavit, Ms Turnbull said that:

“I have read and considered those affidavits and in particular those parts which set out the general and advanced or specialty qualifications acquired by them as well as the duties and responsibilities exercised by them. In my opinion, given the history, transition and articulation of nurse education and preparation, the deponents qualifications can properly be described and would be commonly understood within the nursing industry to be, graduate and post graduate qualifications.”

46                  In evidence in chief, given in addition to her affidavit evidence, Ms Turnbull said that:

“I think it is always part of nursing culture that when you have finished a hospital-based training you are known as a graduate and that is seen as we do - we have graduation ceremonies so nurses who have gone through hospital courses, and when we were talking about courses that were secondary to that initial hospital training they were known as post-graduate qualifications. And I think that has been known throughout nursing and is still known in nursing because the vast majority of nurses in Tasmania were actually hospital trained rather than university trained because of the time period - if you look at the age of the nurses. And I think that it is still part of the culture and the language of nursing that we refer to second and subsequent qualifications as post-graduate.”

47                  Under cross-examination, Ms Turnbull reiterated that undergraduate training was moved entirely to the University in 1991 and that thereafter, the hospitals only offered advanced or specialty courses. Ms Turnbull also said that there was no difference in common usage between the terms, “graduate nurses” and “registered nurses”. She said that:

“It was part of the culture that they were known as graduates and the courses were post-graduate courses.”

Ms Turnbull agreed that the term “post registration” was used to describe specialty courses, but said that the term “post-graduate” was more commonly used in “nursing language”.

Ms Stoker’s evidence

48                  Ms Stoker is the Principal Nurse Adviser employed by the State’s Department of Health and Human Services, a position in which she has been employed since January 2001. Prior to her current position, Ms Stoker was engaged in a series of positions as nurse manager and director, which culminated in her obtaining the position of Director of Nursing and Patient Care Services at the Launceston General Hospital, a position she held from October 1998 until December 2000.

49                  Ms Stoker gave evidence about the process by which nurses became qualified and registered in Tasmania. Her evidence was broadly consistent with that of Ms Turnbull. However, in her re-examination, Ms Stoker was asked what the terms “post registration” and “post-graduate” signified to her. Her response to this question was:

“Post-graduate qualifications are seen as qualifications that are attained through the university. Post registration courses are those that were attained in the hospital following registration.”

50                  Under further cross-examination, Ms Stoker agreed that “other experts including people like Ms Turnbull within the nursing industry ... refer to post-graduate qualifications as including hospital certificates”.

51                  In relation to her evidence recorded at [48] above, I asked Ms Stoker “who” regards “post graduate” qualifications as referring to those qualifications which are obtained through universities. In response to my question, Ms Stoker said:

“… it’s a cultural thing probably more so from the university-trained nurses than from the whole range of nurses. Ms Turnbull cited before there are cultural explanations on several issues and from her perspective and at the time that she was involved in nursing that professional basis that was seen culturally then and culturally now is a little bit different.” (emphasis supplied)

52                 In further re-examination, Ms Stoker clarified the change in culture as follows:

“… since nursing has been in the university and also the emphasis is placed on the university education plus qualifications. We’re trying to get more courses through the university so that they can be recognised as post-graduate qualifications in nursing through the university.”

53                  Prior to that, in cross-examination, Ms Stoker was taken to the final report of the Tasmanian Nurse Workforce Planning Project, for which, she said, she had responsibility for producing and publishing. Ms Stoker was taken to p 50 of the report, at which a table of “Postgraduate Qualifications” was set out. The post-graduate qualifications set out in the table include midwifery, psychiatry, peri-operative and renal. The table revealed that 1,113 nurses claimed to have a midwifery qualification. In response to a question whether those midwifery qualifications were obtained through a hospital or a university, Ms Stoker said that until late November 2002, the only nurses with such a qualification would currently be hospital-trained nurses or those qualified on the mainland. This was because the University of Tasmania had only offered a course in midwifery since November 2001. Ms Stoker conceded that, therefore, a high proportion of the 1,113 nurses referred to in the report would have obtained their midwifery qualifications through a hospital.

Mr Targett’s evidence

54                  Mr Paul Targett is Director, Corporate Services, of the Department of Health and Human Services. In an affidavit filed by the State, Mr Targett gave evidence that he led the negotiations, on behalf of the State, which, in turn led to the formation of the Agreement. His affidavit further contained evidence of what the State hoped to achieve in agreeing to cl 13.3 in its present formulation. Some of that evidence was objected to. That which was objected to, including a reference to what Mr Targett intended cl 13.3 to mean, was omitted from his affidavit. Mr Howells did not object to the other parts of the affidavit, which canvassed why the State was prepared to agree to cl 13.3. However, I do not consider that it is proper for the Court to rely upon that evidence, for the reason that it offends the principle that the Court should not receive evidence concerning what the parties subjectively intended in making their agreement. The common intention must be judged from the Agreement itself; see Davies Bros (at 45).

55                  The same consideration applies to the attempt by the State to rely on what the ANF intended to achieve in the Agreement. The State sought to rely on the ANF’s log of claims as evidence of its intentions. No ambit related issue arises in this proceeding, upon which legitimate assistance from the log may be obtained; see City of Wanneroo v Holmes (1989) 30 IR 362 at 378.

56                 Mr Targett also gave evidence of his subjective understanding of the term “post-graduate”. Mr Targett’s understanding was based, in part, upon matters contained in the Australian Qualifications Framework (“AQF”). I find Mr Targett’s subjective understanding of the term to be of little assistance in the resolution of the construction of cl 13.3, for reasons that will become apparent.

The vagueness submission

57                  Mr Ellis submitted that cl 13.3 of the Agreement is “too vague to be enforceable” and further, is “unenforceable as being only an agreement to enter an agreement, which leaves essential contractual provisions for further negotiation between the parties”.

58                  I consider that cl 13.3 of the Agreement is not too vague to be enforceable. It clearly provides for the payment of an allowance to a person covered by the Agreement on the satisfaction of two conditions:

1.                   The person has obtained a relevant post graduate qualification; and

2.                   The person works in an area relevant to that post-graduate qualification.

59                  Provided that their qualifications can accurately be described as “post-graduate”, the employees named in the Schedule to the amended application fit within the two conditions referred to in the preceding paragraph. The explanatory notes sent out prior to the vote on the Agreement do not contradict that position.

60                  The fact that cl 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.

61                  I also reject Mr Ellis’ further or alternative submission that cl 13.3 is currently unenforceable for reason that the working group has not reached any agreement on the issue of what qualifications will be considered relevant and the areas of work to which those qualifications relate. The first two paragraphs of cl 13.3 clearly establish a current entitlement to those nurses who fall within its terms. 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.

62                  Mr Ellis’ further or alternative submission invites the Court to read into cl 13.3, words which are not there.  In effect, Mr Ellis asks the Court to add to the penultimate paragraph of cl 13.3, the following words (or words to like effect):

“Provided that there will be no liability for the payment to be made until the working group has reached agreement.”

63                  A court may, in appropriate circumstances, insert words into a statute; see Secretary, Department of Health and Ageing v Nguyen [2002] FCAFC 416 at [22]. Applying that principle of statutory construction, there is no reason in principle why the Court should not, in appropriate circumstances, insert words into an industrial instrument.  As McHugh J said in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113:

“…on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates, Lord Diplock said that three conditions must be met before a court can read words into legislation. First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

64                  None of the conditions referred to in Newcastle City Council case are present here. The Court is not entitled to know the mischief sought to be addressed because it is not entitled to receive evidence about the subjective intentions of the parties to the Agreement. The Court is not satisfied that the words apparently omitted (on a true construction of the State's argument) were done so by the inadvertence of the parties.  The Court is further not satisfied that there is any such omission, or if there was, the Court cannot state with certainty what words the parties would have used to overcome the problem.

65                  Additionally, the acceptance of any contention that the sub-clause would not operate until the working group said so, would carry with it the acceptance of the view that the working group could alter the Agreement, without the consent of the Commission. On the contrary, the working group is not entitled to vary the Agreement. Any variation to the Agreement must occur through the Commission within proper processes provided for by the WR Act. Further, the Commission is not able to delegate its functions to a non-statutory body with no powers under the WR Act. Furthermore, the operative date for the allowance, being 1 April 2001, tells against the submission that the sub-clause does not have any practical effect until some later unspecified time.

66                  Having regard to the foregoing, I reject Mr Ellis’ submissions that cl 13.3 is too vague to be enforceable or is unenforceable until the working group reaches agreement. To take the case of a midwife, it would be mischievous to seriously contend that a person who has a post graduate qualification as a midwife (if that be an accurate description of the qualification) 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 gainsay that position.

67                  Having rejected the State’s initial submission, it now falls to the Court to consider the main question raised by this part of the proceeding, that is, what is a “post-graduate qualification” in the context of the nursing industry in Tasmania.

The meaning of “post-graduate qualification” in the Tasmanian nursing industry

68                  As a lawyer, I have a particular pre-disposition towards the meaning of the term “post-graduate”. As a secondary student I yearned to attend university to enrol in a combined course in Economics and Law. I fulfilled my aspirations and left university having graduated with two degrees, one in Economics, one in Law. With that background, if asked what a post-graduate qualification is, I would have immediately answered, “a master’s degree or a doctorate or a graduate diploma for which an initial degree was a prerequisite”. I would have considered curious the proposition that a person, trained as a nurse in a hospital, would consider himself or herself to be a graduate, and that any specialty course, which such a person undertook and completed after finishing “initial training”, would be considered a post-graduate course.

69                  This case, however, is not about lawyers or economists. Nor is it about the understanding of those who approach the construction of cl 13.3 with narrow views borne of a total life experience removed from a proper understanding of the nursing industry in Tasmania. For this reason, I consider that Mr Targett’s views as a senior public servant and industrial relations professional are not much more advanced or probative than those of the lawyer or the economist, in the sense described at [68] above.

70                  Words should not be “interpreted in a vacuum divorced from industry realities”; see City of Wanneroo per French J at 378. Context is critical when one comes to construe industrial agreements. As Burchett J (with whom Drummond J relevantly agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 518 to 520:

“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent’s contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently: cf Pickard v John Heine & Son Ltd (supra) at 9, per Isaacs ACJ. That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. ‘Sometimes’, McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation ‘can be discerned only by reference to the history of the legislation and the state of the law when it was enacted’. Awards must be in the same position.

But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions – and this is the other answer to the argument put – would seem to require the court to look at the full context. Only then will all the nuances of the language be perceived. The judgment of Mason J (with which Stephen and Wilson JJ expressed agreement ) in Codelfa Construction Pty Ltd v State Rail Authority (NSW) 1982 149 CLR 337 at 347-353 contains an extended discussion of the principles upon which a court may take account, when construing a contract, of the circumstances surrounding the agreement of the parties upon those particular terms. In the course of that discussion, Mason J suggested (at 350) that ‘perhaps…the difference…is more apparent than real’ between the view that evidence is admissible only to resolve an ambiguity, not to raise it, and the view that extrinsic evidence is receivable both to raise and to resolve an ambiguity. He concluded (at 352):

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although…if the facts are notorious knowledge of them will be presumed.”

The fact is that words are frequently susceptible of more than one meaning. Paradoxically, ambiguity may be born of the reader’s clarity of thought which perceives a potentiality for an alternative meaning. But in many cases only evidence of extrinsic facts can show that the potentiality has substance. The old case Macdonald v Longbottom (1859) 1 El & El 977; 120 ER 1177, to which Mason J referred, is an example, since there is nothing necessarily ambiguous in the expression “your wool” (indeed Erle J at 986; 1180 described it as “most explicit”) – only evidence that at the time the vendor had both wool of his own growing, and also wool which he had bought in from others, could raise an ambiguity, while at the same time solving it once the other party was shown to have known the facts.

Mason J returned to the subject in his dissenting judgment in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315, when he said:

‘Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.’

This is a broad proposition, applicable to problems of construction generally, although it was put forward in the context of statutory interpretation. In that context, this Court said (in the joint judgment of Neaves, Burchett and Lee JJ) in Busby v Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463 at 468:

‘[A]s Dixon CJ said in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. See also the dissenting judgment of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315, where he referred to ‘the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context’. If that mode of interpretation is truly followed, there must be occasions when it leads to a passage being understood in a sense it would not bear upon a reading in isolation. This is not a shiny new rule, but an approach embedded in the law at least since Lord Coke: see Craies on Statute Law (7^th ed, 1971), pp 96-101.’

The principles of statutory interpretation referred to are not inapplicable to an award which seeks, in a way, to legislate for the terms and conditions of employment of a number of persons engaged in a particular industry: cf Gorge A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503.) Their application to the present problem would require the court to consider the wider context of the award provision as the product of a series of decisions which might reveal plainly its general purpose and policy. When the provision is read against that background, as I shall show, there can be no doubt that it was not intended to have a restricted meaning, but rather to have a wide operation in cases of redundancy, for whatever reason.”

See also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

71                  Having regard to the context of the nursing industry in Tasmania as disclosed in the evidence, I have no doubt that the term “post-graduate qualification” was not intended to have a meaning restricted to a qualification obtained after an under-graduate degree at a tertiary institution.

72                  Ms Turnbull’s impressive and uncontradicted account of the history of nursing in Tasmania, in respect of the attaining of qualifications to practice general nursing, and endorsements for specialisation, tells against the restricted meaning referred to in the preceding paragraph. While Ms Turnbull retired in 1996, that does not affect the currency or significance of her evidence. The move to university qualifications instead of hospital-based qualifications had substantially commenced prior to her retirement. At the time of her retirement, Ms Turnbull was the most senior nursing public servant in the southern region, the most populous region of the State. She also had had extensive management experience far beyond that of Ms Stoker.

73                  Ms Turnbull’s evidence discloses that nurses in Tasmania, who trained in hospitals and qualified for their registration at such institutions, were regarded, in the industry, as graduate nurses. Most significantly, her evidence further discloses that courses subsequently undertaken were regarded as post-graduate courses. That position has not been washed away by the tide of history. Ms Stoker’s personal interpretation of what a post-graduate qualification is, that is, a qualification “attained through a university”, is at odds with the historical analysis provided by Ms Turnbull. It is also at odds with the final report to the Tasmanian Nurse Workforce Planning Project, with which Ms Stoker was charged with producing and publishing. As outlined in [53] above, that report lists, as post-graduate qualifications, a range of qualifications including midwifery. Midwifery is a qualification which, as at the time of the making of the Agreement, was only able to be attained by nurses who had been hospital trained, as distinct from being undergraduates of the University of Tasmania.

74                  I prefer Ms Turnbull’s clear, authoritative, uncontradicted and impressive evidence as providing the more accurate context within which cl 13.3 lives, rather than Ms Stoker’s tentative, less authoritative, less factually based and less impressive evidence, which was first given almost as an afterthought in re-examination.

75                  I am further unassisted by AQF and dictionary concepts about “post-graduate qualifications”. As I said in Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth & Ors (1998) 82 FCR 175 at 181:

“…the specific meaning of [a term], in any particular usage, will depend on the context of its usage.  The context delivers the necessary specificity of meaning.”

Earlier also at 181, I observed that:

“… dictionary definitions are only helpful to the extent that they point broadly to the general meaning of the term….”

The parent award

76                  When construing the Agreement, assistance can be gleaned from the Award, being the instrument underpinning the Agreement. The only assistance provided by the Award in regard to the construction of cl 13.3, is a reference in cl 8 thereof, the Salaries Clause, to a “nurse undertaking postgraduate training”.

77                  Clause 8(j) is headed as immediately described above, but the body of the sub-clause refers to “post basic training”. The interchangeable use of “postgraduate training” and “post-basic training” in cl 8(j) supports the view taken by Ms Turnbull, whose expert consideration was that a post graduate qualification was a qualification attained after the first attaining of the basic general nursing qualification, whether in a hospital or through a tertiary institution.

The correct construction

78                  Having regard to the foregoing, I have no doubt that cl 13.3 properly construed, in the context of the industry within which it applies, and the location of the nurses to whom it applies, entitles a nurse who has a qualification obtained after her or his initial nursing qualification to receive an allowance in recognition of the attainment of that additional qualification; provided that the qualification is relevant to the job that the nurse actually does in her or his current employment.

79                  A 4% allowance is payable if the subsequent qualification is a graduate certificate, such as a midwifery certificate. Higher amounts are payable (6.5% and 7% respectively) for other subsequent qualifications being Post Graduate Diploma or Degree (other than an undergraduate nursing degree) or Masters or Doctorate. The reference to an undergraduate nursing degree, as not being such a subsequent degree, would not have been necessary had it been clear that the allowance was only payable if a nurse first had attained such a degree.

80                  Finally, the establishment or otherwise of a working group and the reaching of agreement or otherwise by that group on the relevance of qualifications to work done for the reasons given at [61] to [66] above, cannot affect the operation of the substantive provisions of the sub-clause.

Conclusion

81                  Having regard to the foregoing and, in particular, to the evidence of the work performed by the employees named in the Schedule to the amended application, I consider that the State is in breach of its obligation to pay each such employee his or her post graduate allowance in accordance with cl 13.3 of the Agreement.

82                  I will adjourn the proceeding to the date referred to in the order accompanying these reasons for judgment so that a directions hearing can occur. At the directions hearing I will consider any submissions as to the further conduct of the proceeding, including a timetable for the receipt of written submissions on penalty, underpayments and interest. I will also consider any submissions concerning the progressing of the issues raised by paragraph 2 of the amended application concerning the claim for annual leave allowance in respect of Ms Tidy.

Associate:

Dated: 18 December 2002