TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 41501-1
VICE PRESIDENT WATSON
AM2011/8
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Australian Nursing Federation
(AM2011/8)
Nurses Award 2010
(ODN AM2008/13)
[MA000034 Print PR986375]
Melbourne
10.01 AM, TUESDAY, 1 MARCH 2011
PN1
THE VICE PRESIDENT: You look lonely at the bar table, Mr Black.
PN2
MR BLACK: I'm on my own, yes. Thank you, your Honour. I appear on behalf of the Australian Nursing Federation.
PN3
THE VICE PRESIDENT: Yes. Thank you. Please proceed.
PN4
MR BLACK: Thank you, your Honour. I note for the record that the Australian College of Midwives have forwarded a brief written submission supporting the application, as have the Pharmacy Guild of Australia. I'll be addressing both matters in my submission, but - - -
PN5
THE VICE PRESIDENT: Yes. They should be treated as submission in the matter. I note that they are on file; so the Australian College of Midwives, their letter of 22 February indicating their support for the changes sought and a letter from the Pharmacy Guild containing submissions in the matter. Yes, they are on the file and I'll have regard to those matters.
PN6
MR BLACK: Thank you. Your Honour, the application seeks to make a number of changes to the modern award, effectively to make clear that the award will cover all the work of pharmacy nurses and also cover midwives. Firstly, we're seeking the deletion of subclause 4.7of the award to remove any uncertainty that nurses employed in pharmacies are appropriately covered by the Nurses Award. The award itself provides at subclause 4.7 a general exclusion to employees who are covered by the Pharmacy Industry Award 2010. In our submission, the origin or the background to that exclusion is quite unclear to us, anyway.
PN7
On 23 January 2009, a full bench of the Australian Industrial Relations Commission issued a statement in AIRCFB 50 containing comments on stage 2 awards and a list of exposure drafts, including the Nurses Occupational Industry Award 2010 Exposure Draft. At paragraph 77 of the statement, the full bench stated:
PN8
The exposure draft of the Nurses Occupational Industry Award 2010 is, as its name suggests, cast as an occupational award. Nurses are the single biggest occupational group in health and welfare services and the material advanced suggests at this stage that an occupational award is warranted. The award generally applies to nurses wherever employed, although nurses employed in secondary schools have been excluded.
PN9
The exposure draft itself did not include the current exclusion for pharmacy nurses under 4.7. In the period between the release of the exposure draft and the decision of the commission of 3 April 2009 in relation to the making of the stage 2 awards, the Australian Nursing Federation and other organisations made a number of written submissions in relation to the draft award and also attended the hearings with a view to making oral submissions. To the best of our knowledge, there were no written or oral submissions put in relation to nurses employed in pharmacies or any proposal to exclude such employees from the Nurses Occupational Award. Further, the relevant employer organisation, the Pharmacy Guild of Australia, we understand did not raise the matter with the AIRC and certainly did not raise the matter with the union during the award modernisation proceedings.
PN10
The AIRC decision in AIRCFB 345 of 3 April 2009, which resulted in the making of a final award, did not contain any reference to the exclusion relating to nurses employed by pharmacies. The decision itself referred to several matters in consideration of the content of the award, including the exclusion for nurses in secondary and primary schools. At paragraph 153 of the decision, the decision states:
PN11
We have also provided an exclusion, at this stage, for nurses in secondary and primary schools. Our views are not fixed in this regard, but we believe it preferable to hear from the participants in the consultations on education before a final decision is made on the employment of nurses in a school environment.
PN12
We raise this today just to note that on a number of occasions the AIRC award modernisation full bench addressed the content of the Nurses Award and, as far as we understand the situation, they never addressed the issue around pharmacy nurses.
PN13
THE VICE PRESIDENT: Was it addressed anywhere else in relation to the Pharmacy Industry Award itself?
PN14
MR BLACK: I'll address you on that, Vice President, but we understand at best it's unclear in terms of the making of the Pharmacy Industry Award and also the Pharmaceutical Award. There's no specific reference to nurses in either of those awards and the making of those awards, but we'll take you to some comments of the full bench in relation to both of those awards. I can address that now. There are two awards that currently apply in the pharmaceutical industry, the first being the Pharmacy Industry Award 2009 which was made on 19 December 2008 in decision PR985122. That award covers employers throughout Australia in the community pharmacy industry and employers listed in the classifications in the modern award. The Pharmacy Industry Award 2010 does not cover employment in a pharmacy owned by a hospital or public institution, or operated by a government where goods and services are not sold by retail to the general public.
PN15
Clause 16 of the Pharmacy Industry Award 2010 provides for a range of classifications and schedule B of that award sets out the classification definitions for employees covered by the modern award. These provisions do not include job titles or classification descriptors relevant to nursing staff. The classifications relate, in our submission, to pharmacists, pharmacy assistants, students and interns. At clause 4.7 of the Pharmacy Industry Award, it states:
PN16
Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
PN17
That clause goes on to say:
PN18
Note: Where there is no classification for a particular employee in this award, it is possible that the employer and employee are covered by an award with occupational coverage.
PN19
In our submission it is arguable, though unclear, that nurses employed in pharmacies that are notionally subject to the exclusion in 4.7 of the Nurses Award, are covered by the Nurses Award given the reference in the Pharmacy Industry Award, but, as I say, your Honour, it is unclear. In terms of the other award, the Pharmaceutical Industry Award 2010, clearly that is an award designed to cover the manufacture, warehousing and distribution of pharmaceutical products. The classifications in that award go to employees who would make the pharmaceuticals, warehouse the pharmaceuticals and distribute the pharmaceuticals. There is no reference in that award to nurses or anything similar to nursing work.
PN20
It's our submission that the most appropriate award for nurses employed in pharmacies is the Nurses Award 2010, an occupational award that already covers nurses employed in a variety of settings. The variation proposed in our application to delete subclause 4.7 will remove any ambiguity and ensure that nurses who are employed in pharmacies, however described, shall be covered by the Nurses Award 2010. We note that the Pharmacy Guild of Australia supports the proposed variation and although I only received a copy of their submission this morning and read it quite briefly, we note they submit that they have taken advice from the Fair Work ombudsman who also confirmed that there is some uncertainty about the appropriate coverage, according to the submission of the Pharmacy Guild of Australia.
PN21
At paragraph 6 of their written submission, they submit that the advice of the Fair Work ombudsman is that in the absence of clause 4.7, the Nurses Award would apply and that - I'll stop there because I haven't read it in detail, but I understand in my discussions with the Pharmacy Guild, your Honour, that they have received verbal advice that the Fair Work ombudsman's office or help line is not clear as to what award should apply; but they do note that if the application is granted, that uncertainty would be removed.
PN22
THE VICE PRESIDENT: That's not what the submission says though, is it?
PN23
MR BLACK: Sorry?
PN24
THE VICE PRESIDENT: This is an important matter for this reason: you've made your application on the basis of removing an ambiguity and, if there's no ambiguity, that section doesn't operate. I can't see immediately what the ambiguity is.
PN25
MR BLACK: Well, the ambiguity is that the Nurses Award read in conjunction with the Pharmacy Industry Award, which is the other award that may apply to the work of nurses, provides no clear guidance as to which award applies in this setting.
PN26
THE VICE PRESIDENT: It seems pretty clear that the Nurses Award doesn't apply to employers bound by the Pharmacy Industry Award.
PN27
MR BLACK: But, your Honour, the Pharmacy Industry Award - I don't know if you've got a copy of that available - also makes it clear that if an employee is not covered by the classification structure or the coverage of the Pharmacy Industry Award, it may be that they are covered by an occupational award. Now, the confusion that has arisen in relation to the parties that are required to apply the award in workplaces suggests, in our submission, that there is uncertainty as to the appropriate award.
PN28
THE VICE PRESIDENT: There might be uncertainty as to what, if any, award applies.
PN29
MR BLACK: I don't think there's any suggestion - - -
PN30
THE VICE PRESIDENT: I don't believe there's ambiguity in the Nurses Award, is there?
PN31
MR BLACK: I think there is. I think there is, because - - -
PN32
THE VICE PRESIDENT: It clearly doesn't apply on its terms. I'm sensitive to this point, Mr Black, because the last time I made a variation on the basis of an ambiguity, there was an appeal including those grounds on the basis that there was no ambiguity disclosed. There was a broad view expressed that there was. I accepted those submissions, but it is a jurisdictional basis for making the application. If I can just add this before you reply.
PN33
MR BLACK: Sure.
PN34
THE VICE PRESIDENT: I wondered in the application what the history of the provision was and you've only now gone to it. It's not disclosed in the grounds, but there may be alternative ways to make the application if this position has arisen from an error.
PN35
MR BLACK: Your Honour, we're not privy to the consideration by the full bench other than the issues that they state in their decisions. At some point a member of the award modernisation full bench decided that the pharmacy industry exclusion would apply in the Nurses Award. There are no reasons as to why that's the case and we strongly submit that that has led to uncertainty and confusion in relation to industrial parties and, according to the submissions of the Pharmacy Guild, there is also confusion in respect to the FWO. Well, we simply say this is a practical way of resolving that uncertainty and I'm not privy to the matter that you raise in terms of your previous decision, but I'd suggest quite strongly it's quite unlikely that this matter would be appealed if the application was granted.
PN36
THE VICE PRESIDENT: The concept of an ambiguity or to resolve an ambiguity, remove an ambiguity, is usually about the terms of the instrument; where the terms of the instrument are ambiguous. They are capable of more than one meaning as a whole. There's a set of case law dealing with what amounts to an ambiguity, where there are rival contentions as to the meaning and those sort of things. It appears the way you're putting it is that the situation created by the operation of the respective awards makes it uncertain as to which award applies to nurses employed in pharmacies, which is a different notion to an ambiguity arising from the terms of the instrument in that normal sense. It may be that the concept of uncertainty is broader than the notion of an ambiguous award provision.
PN37
MR BLACK: It's clearly uncertain. We proceed on the basis that we think pharmacy nurses are covered by the Nurses Award. I think if you read both awards in the context of the coverage of the Pharmacy Industry Award and the Nurses Award, we believe that there's a strong argument that nurses are already in the Nurses Award. We understand that's the view of most employer organisations who apply the award. The lack of certainty, the lack of clarity around that, has led to the situation where the parties believe that the matter is best dealt with by the exclusion of subclause 4.7. There's no opposition to that course. I understand that you might have some apprehension about agreeing that it's an uncertainty, but certainly in terms of the parties away from his tribunal, there's no disagreement that it's unclear.
PN38
THE VICE PRESIDENT: Well, I can't see how the Nurses Award can possibly apply when you've got the clear terms of clause 4.7. I can't see any rival interpretation that has any credibility.
PN39
MR BLACK: Well, our submission is that 4.7, the same subclause in the Pharmacy Industry Award, states - I dealt with that in my earlier submission, but the note in the second paragraph, "Where there is no classification for a - - -"
PN40
THE VICE PRESIDENT: But that's a standard provision and all it says - if you're looking for a classification in an award, that provision is in all industry awards in exactly the same terms.
PN41
MR BLACK: It doesn't reduce its impact - - -
PN42
THE VICE PRESIDENT: No.
PN43
MR BLACK: - - - because it exists everywhere.
PN44
THE VICE PRESIDENT: But all it does is to provide a mechanism for resolving conflict where more than one award might apply.
PN45
MR BLACK: Yes.
PN46
THE VICE PRESIDENT: It's a matter of determining which of those applies and how you determine that, and then only by way of a note but not by way of a substantive notion to alert someone reading the award that if they can't find a classification in that award, there may be another occupational award that applies even though they're in the relevant industry covered by the awards. It's a standard provision. It's in all awards.
PN47
MR BLACK: Yes. I understand that, yes.
PN48
THE VICE PRESIDENT: And it's only a note to alert people, surely. I can't see how that could give rise to an interpretation in a legal sense that the clear terms of clause 4.7 of the Nurses Award are to be read down or ignored.
PN49
MR BLACK: I suppose, your Honour, with respect, save for the fact that the people who are applying the award don't read it in those terms. They seek some clear guidance as to which award that ought to apply in terms of their employees - - -
PN50
THE VICE PRESIDENT: I can understand that nurses employed in pharmacies themselves may be unsure as to which award applies.
PN51
MR BLACK: Yes.
PN52
THE VICE PRESIDENT: And it's hard to find an award which does when you don't have classifications in one and you have a clear exclusion in the other.
PN53
MR BLACK: Yes.
PN54
THE VICE PRESIDENT: They don't know which award to apply, but it may be that interpreting the terms of the instruments, no award applies. Because of those provisions, no award applies. You know, that wouldn't be the only area of employment where that's the case. Is it uncertain that that's the case or is it ambiguous? I'm struggling to see how that position is anything but clear.
PN55
MR BLACK: Yes. I think that's where we part ways. I'd clearly suggest that it's uncertain and unclear, and what I'm submitting today is that that is the view of the industries that have to apply the two awards; that is the view of the Pharmacy Guild of Australia in terms of their written submission and that is the view of the nurses who may be employed in those sectors. Whether it meets the strict legal definition of an ambiguity, you would be better placed to form an opinion about that, but it seems to us that with respect it's a practical approach to an issue that has arisen, that it will, if granted, in our submission, reduce the possibility of disputes as to the appropriate award.
PN56
It will allow employers and nurses in the sector to be very clear as to the appropriate award coverage. These employees have always had award coverage. It's not to suggest that they were award free in days gone by. There's no suggestion that that has been the case. They have award coverage.
PN57
THE VICE PRESIDENT: The Pharmacy Guild says:
PN58
The current situation dictates that pre-modern awards continue to apply to nurses employed in a community pharmacy setting.
PN59
MR BLACK: I did read that, your Honour.
PN60
THE VICE PRESIDENT: This is paragraph 7.
PN61
MR BLACK: Yes.
PN62
THE VICE PRESIDENT: I don't know how that can be the case.
PN63
MR BLACK: No.
PN64
THE VICE PRESIDENT: With the current status of those instruments, I don't think they'd survive. They don't seem to be saying that they're uncertain which of those awards apply. They seem to say that neither of them appear to apply and it's undesirable - I can see how they say it's undesirable. I can see how they support the outcome. They say:
PN65
Making this variation would remove the uncertainty, confusion and ambiguity of community pharmacy employers when they realise that at present the Nurses Award cannot be applied as a standard.
PN66
They seem to be using those terms in a different way.
PN67
MR BLACK: And I don't want to second-guess what they were suggesting in their written submission. All I can say to your Honour is that there have been discussions between the organisations about which award should apply and there has been an agreement - at least a verbal agreement - that it is unclear. They have raised it with the union. They have sought advice from the Fair Work ombudsman and that has not been satisfactory. They support the application to, in our submission, remove any uncertainty as to the appropriate award that should apply. I really can't take their submission any further than that today.
PN68
THE VICE PRESIDENT: Well, could I put it this way: if I'm unable to find an ambiguity or uncertainty, do you put any alternative submissions based either on section 157 or the notion of an error in section 160 based on your view of the process leading to the modern award, where it appears that the variation between the exposure draft version and the final version - this particular paragraph arose, but you weren't able to find any submission which sought that change?
PN69
MR BLACK: Your Honour, it's hard to put a submission that there was an error in the absence of any commentary or reasons behind the insertion of subclause 4.7 in the final award. As I say, to the best of our knowledge no organisation sought that specific change. It was not raised by the bench or the parties in the exposure draft proceedings or consultation proceedings. It appeared. Now, whether it appeared because members of the bench were also dealing with the Pharmacy Industry Award and there were submissions of that nature in those proceedings - we can't locate any such submissions, but we may be wrong. We weren't directly involved in those proceedings and were unaware - - -
PN70
THE VICE PRESIDENT: It may have been, for example, that the submissions of the Pharmacy Guild to the effect that the pharmacy industry should be exclusively covered by the Pharmacy Award - - -
PN71
MR BLACK: Yes.
PN72
THE VICE PRESIDENT: It was assumed that that was their position in relation to nurses, as well, even though it might not have been explicit. They certainly made the strong submission that they are in a discrete industry and should be covered by the discrete award, unrelated to retail, unrelated to anything else. It may have been assumed that a complete isolation of their award was appropriate, but it not being realised that there was another category of employees - namely, nurses - that are not covered by the classification structure in the Pharmacy Award. It may have been that misunderstanding involved.
PN73
MR BLACK: And to that extent, your Honour, we would submit that in effect there was an error. We're not saying that the error was an error of the bench, but certainly if the Pharmacy Guild of Australia was proposing that the Pharmacy Industry Award apply to the whole of the pharmacy sector, then they essentially misled the tribunal in the sense that it has always been the case that pharmacy nurses - whether they are employed in a pharmacy within a hospital or a health setting or beyond that - have been covered by Nursing Awards. It has never been the case that nurses were employed under, for want of a better word, a retail-type award or the manufacturing of pharmaceuticals. They have always been seen as nurses working in pharmacies rather than something else.
PN74
If that can be characterised as an error, then perhaps that's the case, because the bench would have been misled as to the proposal that everyone in the pharmaceutical sector, wherever they may be employed, should be in the Pharmacy Industry Award. The pharmacy industry, in our view, does not cover nurses employed in that context - - -
PN75
THE VICE PRESIDENT: Yes. It may have unintentionally created a gap.
PN76
MR BLACK: Yes. There is a gap.
PN77
THE VICE PRESIDENT: And it was not understood that that was going to be the result.
PN78
MR BLACK: Yes. I do note that most employer organisations came before the tribunal in the proceeding and sought an industrywide award. When the tribunal sought to clarify what the scope of the industry was, there was, you know, some debate on the edges. Now, we weren't directly involved in the making or the consultation process of the Pharmacy Industry, because we proceeded on the basis that nurses would not have been part of that award and there was no suggestion as far as we were aware that parts of the nursing industry would be carved off into other modern awards. It was only when we saw the exclusion that we realised what had happened.
PN79
We based our position on the earlier comments of the full bench that generally said, "Look, at this stage subject to the exclusion in schools" - that's the primary and secondary schools - "the Occupational Award shall cover nurses employed by employers throughout the country." I don't want to put it as strong as saying that the Pharmacy Guild misled the tribunal, but certainly there has been a gap created in the award coverage.
PN80
THE VICE PRESIDENT: Yes. There was certainly a lot happening at the time and a lot of - - -
PN81
MR BLACK: We're not casting stones at anyone.
PN82
THE VICE PRESIDENT: - - - submissions of parties. The need for them to address a whole lot of issues in a short space of time really.
PN83
MR BLACK: Yes.
PN84
THE VICE PRESIDENT: So one could not be critical of anyone in the process - - -
PN85
MR BLACK: No.
PN86
THE VICE PRESIDENT: - - - if things slipped through the cracks unintentionally.
PN87
MR BLACK: Yes, and we submit today the proposal that the changes we propose to make to the award do have industry support. There's no opposition to it. It seems to us a practical way to remove any uncertainty that the appropriate award for pharmacy nurses, be they employed in a hospital pharmacy or a pharmacy attached to a hospital or in some other pharmaceutical setting where they're employed as nurses - not salespeople or administrative staff, but they are in a nursing capacity - then the appropriate award coverage should be the Nurses Award.
PN88
THE VICE PRESIDENT: Do they not perform any retail functions? Do they not give advice or - - -
PN89
MR BLACK: There are nurses who are engaged who act as sales representatives. They would go out to hospitals and demonstrate how particular pharmaceutical equipment may work or a new pharmacy product should be applied to patients or residents, but generally speaking they have not been covered by Nursing Awards and their nursing qualification is something that they have, but they have moved on to more of a retail function.
PN90
THE VICE PRESIDENT: Yes. Thank you.
PN91
MR BLACK: That concludes my submissions in relation to pharmacy nurses. There's a second part to the application, your Honour, and that is to do with the midwifery profession.
PN92
THE VICE PRESIDENT: Yes.
PN93
MR BLACK: This part of the application seeks to include in clause 4 the coverage reference to midwives and midwifery, and also to include reference to the work of midwives and midwifery in the classification structure listed in schedule B of the modern award. Once again, the application is intended to remove a potential ambiguity or uncertainty as to the award coverage of employees working as midwives or undertaking midwifery duties. Historically employees undertaking these duties have been covered by federal and state midwifery and nursing awards. Normally this was done by specifically identifying the work of midwives within the nursing classification structures and related definitions. I have put together a table of pre-reform awards that made reference to the work of midwives. If I could hand a copy to the tribunal.
PN94
THE VICE PRESIDENT: I'll mark that exhibit B1.
PN95
EXHIBIT #B1 TABLE OF PRE-REFORM AWARDS
MR BLACK: Thank you. It's simply to provide to the tribunal an overview of, as I say, the pre-reform awards and the specific examples where the term "midwife" was included in either the coverage of the award itself or in most instances, your Honour, the work of midwives was covered in the classification structure. I'll deal with that in a bit more detail. There are approximately 16,000 midwives employed in a paediatric, maternity or related setting. Of this number, it's estimated that over 90 per cent also hold qualifications and registration as registered nurses.
PN97
Midwives are primarily employed in maternity or paediatric settings in public and private hospitals. Often midwives with nursing qualifications also work in settings not related to the care of babies or their mothers. Many midwives enter the profession through postgraduate studies following on from an initial nursing degree. However, increasingly education providers are offering undergraduate courses in midwifery or as part of a double degree - nursing and midwifery degree - so it's often the case now, your Honour, that midwives can enter and work as midwives by undertaking a single degree to qualify them to work as midwives and would not be qualified as registered nurses; but, as I say, at this point in time the vast bulk of midwives are also registered nurses.
PN98
Up until a few years ago, state and territory regulatory authorities did not distinguish between the work of nurses and midwives for the purposes of registration and our submission is that, generally speaking, industrial instruments follow that approach; but more recently nursing regulatory authorities have established separate registers for nurses and midwives on the basis that there are increasingly direct entry arrangements for people who want to work as midwives.
PN99
THE VICE PRESIDENT: A midwife who has a general nursing qualification would be covered by the Nurses Award now.
PN100
MR BLACK: Yes, they would be.
PN101
THE VICE PRESIDENT: And that is at least 90 per cent - - -
PN102
MR BLACK: Yes.
PN103
THE VICE PRESIDENT: - - - of people who work as a midwife. What currently applies to the other 10 per cent now?
PN104
MR BLACK: They have been covered by Nursing Awards, as well, because the Nursing Awards have made reference broadly in the classification structure - - -
PN105
THE VICE PRESIDENT: Is there no other modern award that might apply?
PN106
MR BLACK: No. There has never been a Midwifery Award in the pre-reform awards.
PN107
THE VICE PRESIDENT: But is there no classification in a hospital award that applies?
PN108
MR BLACK: Health Professionals Award?
PN109
THE VICE PRESIDENT: Health professionals.
PN110
MR BLACK: No, there is no reference to midwifery in those awards.
PN111
THE VICE PRESIDENT: I'm just wondering whether parties to the Health Professionals Award or - whether this is more sort of an ancillary staff function that might be below professional, et cetera. Well, the question is are the parties that are covered by the other awards aware of this application and have had a chance to comment on it?
PN112
MR BLACK: Well, your Honour, certainly the unions are aware of the application. I provided a copy of the application to the other unions who have an interest in - - -
PN113
THE VICE PRESIDENT: To all the other unions, a party to the health professionals - - -
PN114
MR BLACK: Yes, certainly. It's my practice to provide a copy of the application. We did not provide it to any employer organisation.
PN115
THE VICE PRESIDENT: Well, I think employers - especially organisations that might be covered by the other awards - are also likely to be subscribers to this award.
PN116
MR BLACK: Yes.
PN117
THE VICE PRESIDENT: And therefore would be aware.
PN118
MR BLACK: Yes. There's no industrial organisation that would claim to cover the work of midwives. The Australian College of Midwives is the professional organisation that we principally deal with in terms of issues around midwifery, but not industrial issues.
PN119
THE VICE PRESIDENT: Yes.
PN120
MR BLACK: But we did send them a copy of the application and discussed it with them, and they've of course responded with a submission.
PN121
THE VICE PRESIDENT: Yes.
PN122
MR BLACK: But to the best of my knowledge there's no organisation that would say, "We cover industrially" - certainly no registered organisation - "the work of midwives;" but as you say, your Honour, there would be organisations that have a broad interest in the health sector. We say that in terms of the workplaces, midwives are still and always have been considered to be part of the nursing team by both employees and employers. The vast majority continue to hold qualifications as registered nurses. They are invariably covered by industrial instruments, agreements, that also cover nurses and in all likelihood they would be members of our union.
PN123
I also note in passing, your Honour, that the modern award does make reference to midwifery in a classification structure. If I can ask your Honour to turn to page 43 of the modern award. My copy is page 43. It's the classification structure schedule B. You'll note that at B(7) under the definition of a nurse practitioner, a nurse practitioner is defined in part as a registered nurse/midwife appointed to the role; so there is passing reference to the work of midwives in the Nursing Award at least so far as nurse practitioners are - - -
PN124
THE VICE PRESIDENT: Yes.
PN125
MR BLACK: That concludes my submissions in relation to midwives. Once again we submit that the changes we seek in our application would make it clear that midwives are covered by the Nurses Award. There's no opposition to our knowledge to this application and we commend it to the tribunal.
PN126
THE VICE PRESIDENT: What operative dates do you seek for the variations?
PN127
MR BLACK: It makes sense, your Honour, that the operative date if possible should be the commencement of the award. I don't believe there would be any disagreement that that award - Nurses Award - would have been the award applied to those employees and I can't envisage there would be a difficulty with that approach, but I understand that - - -
PN128
THE VICE PRESIDENT: 1 January 2010.
PN129
MR BLACK: Yes. That's quite a lengthy time.
PN130
THE VICE PRESIDENT: No retrospectivity issues that might arise?
PN131
MR BLACK: My immediate view is no.
PN132
THE VICE PRESIDENT: The transitional provisions - - -
PN133
MR BLACK: No. My immediate view is I can't envisage there would be any difficulties in that area.
PN134
THE VICE PRESIDENT: Yes. Thank you, Mr Black.
PN135
MR BLACK: Thank you.
PN136
THE VICE PRESIDENT: There are two aspects to this application. The first seeks to remove the current exclusion of employers bound by the Pharmacy Industry Award from the coverage clause of the Nurses Award. The basis for the application has been explained in some detail today and I have raised various questions with the representative of the applicant in the course of these proceedings. It does appear to me that the argument is not based on an ambiguity in the terms of the Nurses Award itself in the sense that there are competing interpretations of an award provision. Rather, it appears that general uncertainty exists as to what award applies to nurses employed in pharmacies in circumstances where there is a direct exclusion of such employers in clause 4.7 and no other award that apparently applies, including the Pharmacy Industry Award which does not have classifications covering nurses in it.
PN137
In my view there is probably a basis for making the variation based on consideration of the history of the making of this exclusion, but before approving a variation I would take the opportunity to check that history to see whether there can be any further information as to the genesis of clause 4.7. If clause 4.7 has arisen unintentionally and created a lacuna in the operation of modern awards such that nurses employed in pharmacies are not covered by any award, then that might be a matter which requires rectification. I will not indicate a final position at this stage, but I will consider that further, including the submissions that have been referred to in the proceedings today, before communicating a final position in relation to that matter.
PN138
As far as the second part of the application is concerned, it appears that midwifery has been considered in conjunction with nursing under Nursing Awards for many years and that most midwives hold general nursing qualifications and are covered by the Nursing Award. However, there is a category, and perhaps a growing category, of employees that are engaged in midwifery duties who do not hold nursing qualifications as such and again there is an uncertainty as to the award coverage of such people. There is no direct provision excluding midwives and there is some mention of midwives in the classification structure of the award.
PN139
I consider that there is a basis here under section 160 of the act to remove an ambiguity or uncertainty, or to correct an error and extend the scope of the award to cover midwives who may not have a nursing qualification. I will, therefore, approve that variation and issue an order varying the award in that respect. As I have indicated, I will communicate my concluded view of the first part of the application as soon as I am able to. The proceedings are now adjourned.
<ADJOURNED INDEFINITELY [10.49AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #B1 TABLE OF PRE-REFORM AWARDS PN96