FEDERAL COURT OF AUSTRALIA

 NSW Nurses’ Association v SOS Nursing and Home Care Service Pty Ltd [2009] FCA 1147   

NSW NURSES' ASSOCIATION v SOS NURSING AND HOME CARE SERVICE PTY LTD

NSD 1514 of 2008

PERRAM J

9 OCTOBER 2009

SYDNEY

THE COURT DECLARES:

1.                  It is declared that upon the proper construction of the Notional Agreement Preserving State Award known as the Nurses’ other than in Hospitals, &c., (State) award (“NAPSA”):

Where an employee whose employment is subject to the NAPSA spends time travelling between the residences of clients of the employer for the purpose of providing services to those clients on behalf of the employer, the employee is, during that travelling time, on duty and working for all purposes of the NAPSA.

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

1                                             The issue in this case is whether nurses employed by the respondent company are entitled to be paid for time spent travelling between clients.  In my opinion they are, and the declaration sought to that effect by the applicant should be made.

Facts

2                                             The respondent operates a private nursing and care service which provides domestic services to clients in their homes.  Typically the clients are aged and/or frail.   To perform the services it employs registered nurses, enrolled nurses and also employees more generally involved in assisting in nursing duties (“nurse employees”).

3                                             Most of the work carried out by the nurse employees requires them to travel to the clients’ homes and there to provide nursing services.  They either do this in a vehicle provided by the respondent or in their own vehicle.  As part of their rostered duties the nurses are frequently required, on the same shift, to travel from the home of one client to the home of the next.  The time taken providing services at each client’s home varies but, in general, takes between five minutes and one hour. 

4                                             The parties agreed as a fact before me that the travelling time between clients’ homes varied but, generally, was between 15 and 30 minutes.  Because it will presently be relevant I should note that there was no evidence that the respondent operated in rural New South Wales or that nurses employed by it in rural New South Wales might travel long distances between clients. The submission made on the respondent’s behalf that it operated in the North West, the Central West, New England, the Northern Tablelands and the Central Coast was, therefore, unsupported by evidence.

5                                             The parties agreed that the employment of the respondent’s nurses had been governed successively by two industrial instruments.  These were:

(a)        the Nurses Other than In Hospitals &c., (State) Award (an award made by the Industrial Relations Commission of New South Wales pursuant to the Industrial Relations Act 1996 (NSW)); and

(b)       an equivalent federal instrument having relevantly identical content known as a “notional agreement preserving a state award” which picked up the state award and applied it as a federal instrument on and after 27 March 2006, the day upon which the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) came into force. 

6                                             With one minor exception, to which I will briefly return below, the text of the instruments was identical.  The applicant Association would appear to be a registered organisation representing nurses, although there was no evidence to that effect before me.  There was also no evidence of any extant controversy between the respondent and the nurse employees.  The evidence (and, indeed, the form of the proceedings) suggest that the parties were previously in dispute about the entitlements of a Ms Keech.  I was informed from the Bar Table that her claim had been resolved save that a determination of the present issue was required.  I infer, therefore, that there is a real dispute between these parties about the entitlement of the nurse employees to be paid for time spent travelling between clients. 

The relief claimed

7                                             The applicant ultimately sought the following declaration:

It is declared that upon the proper construction of the Notional Agreement Preserving State Award known as the Nurses Other than in Hospitals &c., (State) Award (“NAPSA”):

Where an employee whose employment is subject to the NAPSA spends time travelling between the residences of clients of the employer for the purpose of providing services to those clients on behalf of the employer, the employee is, during that travelling time, on duty and working for all purposes under the NAPSA.

8                                             The declaration was said to be within the power of this Court by reason of s 848 of the Workplace Relations Act 1996 (Cth) (“WR Act”).  Until 1 July 2009 s 848 of that Act provided:

(1)       The Court or the Federal Magistrates Court may give an interpretation of an award on application by:

            (a)        the Minister; or

            (b)        an organisation or person bound by the award.

(2)       The decision of the Court or the Federal Magistrates Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court or the Federal Magistrates Court. 

9                                             On 1 July 2009 the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the Transition Act”) came into force. The combined effect of s 3 and item 2 of Schedule 1 to the Transition Act was to repeal s 848 of the WR Act.   Clause 11(1) of Schedule 2 of the Transition Act provides:

The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day. 

10                                          This provision focuses on “conduct that occurred prior to the WR Act repeal day” – that is conduct prior to 1 July 2009.   The present proceeding does not expressly relate to any particular conduct in that no specified nurse is involved; however, it does concern a real dispute about whether nurses in the relevant period were entitled to be paid for time spent travelling between clients.  As a transitional provision “conduct” should be construed broadly to encompass the conduct of the respondent in not paying the nurses during that period.  It follows that cl 11 has the effect of continuing the WR Act for the purposes of these proceedings. 

11                                          This conclusion is buttressed by the expression “in relation to”.  Those words connote a broad connexion between two subject matters.  Here, the subject matters are the application of the WR Act and the actions of the respondent in not paying for the travelling time.   

12                                          Even if that were not so, however, cl 5(i) of Schedule 2 would achieve the same outcome.  It provides:

If a provision of a transitional Schedule provides for provisions (the applied WR Act Provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day.

13                                          As the present circumstances show, s 848 is necessary for the effectual operation of the WR Act.

14                                          Section 848 cannot be read as conferring a jurisdiction upon this Court to give an advisory opinion: In re Judiciary & Navigation Acts (1921)29 CLR 257 at 266.  It follows that any interpretation sought pursuant to it must relate to some dispute whose resolution is necessary in order to quell an actual controversy.  Thus, before exercising the power conferred by s 848, the Court must be satisfied that there is a genuine dispute between the parties: Australian Licensed Aircraft Engineers’ Association v Ansett Australia Ltd (2003) 127 FCR 487 at 492 [16]; Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 at 28-29 [42].  For the reasons given in paragraph [6] I am satisfied that such a controversy exists.   It follows that the Court’s jurisdiction is enlivened. 

15                                          Counsel for the respondent submitted that s 848 had been repealed prior to the applicant claiming relief under it.  This is so.  The claim under s 848 was not commenced until 4 August 2009, some weeks after s 848 had been repealed.  However, the effect of the transitional provisions is that s 848 continues to apply to circumstances arising prior to  1 July 2009, at least in the circumstances outlined above.

16                                          The applicant also sought relief under ss 21 and 22 of the Federal Court of Australia Act 1976 (Cth).  Section 21 authorises the making of declarations of right in the Court’s original jurisdiction.   Since I have concluded that jurisdiction exists under s 848 I do not need to, and do not, decide whether jurisdiction is additionally conferred by those provisions. 

The argument

17                                          Miss Howell, who appeared for the applicant, put the matter very shortly.  The notional agreement fixed ordinary working of 38 hours per week.  Clause 2(v) provided ordinary hours were to be worked between 7.00am and 7.00pm and were to be “consecutive except for breaks or meals”.  Because the hours had to be worked consecutively there was no room for a construction of the notional agreement which, in effect, meant that a nurse would work for a short period in one client’s home, stop working whilst travelling to the next client’s home, and then recommence work on arrival at that client’s home.

18                                          Quite apart from that, cl 5(ii) of the notional agreement showed that part-time and casual employees were entitled to two or three hours minimum pay for each shift.  If there could be a cessation of work during the travel period this would mean that the nurses were entitled to two or three hours of pay for each client.  This, so it was submitted, was an unlikely outcome. 

19                                          Counsel for the respondent did not seek to engage directly with Ms Howell’s argument.  Instead, he submitted that the declaratory relief should be declined because, if made, it would have the effect of requiring the respondent to pay travel time even in those cases in which nurses were working in rural New South Wales, where the distances between clients were, in general, great.  This would be, so it was submitted, to write into the notional agreement an obligation to pay for travel time which was not there. 

Consideration

20                                          It is plain that the notional agreement contemplates that the work done is to be done consecutively.  Clause 2(v) provides:

Day Workers – the ordinary hours of work for day workers shall not exceed 38 hours per week to be worked between the hours of 7.00am and 7.00pm in five days of not more than eight hours, Monday to Friday, inclusive and shall be consecutive except for breaks for meals.

21                                          There is no room in that clause for work done intermittently.  It is true that the notional agreement contains no provisions dealing with travel pay but I do not think that that assists debate one way or the other; if there were provisions dealing with travel pay that might be a different matter.  The only other textual matter which has significance is contained in cl 18, which was very properly drawn to my attention by counsel for the respondent.  It provides:

18.  Vehicle Allowances

(i)         An employee who is required by his/her employer to provide a car for the performance of his/her duties shall be paid the appropriate car allowance for the horsepower of the car he/she provides as set out in Part B.  A part-time employee shall be paid such allowance on a pro-rata basis of the ratio of hours worked by the employee to full-time hours per week.

(ii)        The standing charge prescribed by subclause (i) of this clause shall be paid to the employee for all period of paid leave of 5 days or less duration.

(iii)

(a)        A casual employee who is required by his/her employer to provide a car for the performance of his/her duties shall be paid the rate as set out in Part B.

(b)        An employee who is not required to provide a car for the performance of his/her duties shall be paid the rate as set out in Part B when he/she uses their own vehicle on the employer’s business.

…

22                                          This clause shows that the notional agreement contemplates that the performance of the nurses’ duties may involve travel.  That is consistent with the notion that they should be paid for the performance of those duties.   Finally, the proposition that the notional agreement should be interpreted so that employees are not paid for periods of time when they are performing duties for the employer is surprising, and not lightly to be embraced in the absence of a clarity of expression which the notional agreement clearly lacks.  It follows that, in principle, the declaration should be granted.  

23                                          I reject the argument that I should decline relief because any such declaration would cover the position of nurses in the country for whom the travelling times might be substantial.  As I have already noted, there was no such evidence before me.  Even if there had been, it would have had no effect on the issue at hand, which is a pure question of construction.   I also reject the argument that relief should be declined because the dispute resolution procedure in cl 21 has not first been engaged.  Although cl 21 was part of the text of  the original state award, its operation was circumscribed by cl 34 of Schedule 8 of the WR Act which rendered it void to the extent that it dealt with dispute resolution in a way which was inconsistent with the “model dispute resolution process”.   That process was defined in Part 13 of the WR Act.  Relevantly, s 693 of the WR Act explicitly provided that rights of access to the courts were not impeded by the model dispute resolution process.  It follows that cl 21 is void to the extent that it would purport to prevent the present application. 

24                                          A declaration in the form sought by the applicant should be made. 

Associate:

Dated:         9 October 2009