DECISION

Fair Work Act 2009
s.240—Bargaining dispute

Applications by the Health Services Union, Australian Nursing and Midwifery Federation (Victorian Branch) and the Victorian Hospitals’ Industrial Association
(B2020/278, B2020/299, B2020/408)

Application to deal with a bargaining dispute – consent arbitration – dispute as to coverage – dispute determined.

CONTENTS

1. Introduction
    1.1 Context and procedural history
2. Evidence
    2.1 Paul Healey (HSU Witness)
    2.2 Lloyd Williams (HSU Witness)
    2.3 Kimberley Gallaher (HSU Witness)
    2.4 Stavroula (Leah) Rebis (HSU Witness)
    2.5 John Murphy (HSU Witness)
    2.6 Bridget Hamilton (HSU Witness)
    2.7 Daniel Darmanin (HSU Witness)
    2.8 Peter Crowe (HSU Witness)
    2.9 Paul Gilbert (ANMF Witness)
    2.10 Patricia O’Hara (ANMF Witness)
    2.11 Andrew Morgan (ANMF Witness)
    2.12 Kim Sykes (ANMF Witness)
    2.13 Tim Nagle (VHIA Witness)
    2.14 Stuart McCullough (VHIA Witness)
3. Submissions
    3.1 Fairly Chosen
    3.2 Fair and Efficient Conduct of Bargaining
    3.3 The Interests of Employees and Employers
    3.4 Existing Coverage
        3.4.1 HSU Submissions
        3.4.2 ANMF Submissions
        3.4.3 VHIA Submissions
    3.5 History
    3.6 Mutual Exclusivity
    3.7 Any other Relevant Matters
4. Consideration
5. Conclusion

ABBREVIATIONS

1. Introduction

[1] This decision concerns three applications for the Fair Work Commission (Commission) to deal with a bargaining dispute, made by the Health Services Union (Victoria No 2 Branch) (HSU), trading as the Health and Community Services Union (HACSU), the Victorian Hospitals’ Industrial Association (VHIA) and the Australian Nursing and Midwifery Federation (ANMF).

[2] The HSU, VHIA and ANMF are bargaining for enterprise agreements to replace the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016 – 2020 (Nurses Agreement) and the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 (Mental Health Agreement). A dispute had arisen as to scope. By way of an Arbitration Agreement first addressed to the President of the Commission under cover of a letter dated 31 July 2020, the parties have sought that the Commission conducts a consent arbitration under s 240(4) of the Fair Work Act 2009 (Cth) (Act) and answers the following two questions:

1. Is the proposed definition of coverage of the Replacement Nurses Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

2. Is the proposed definition of coverage of the Replacement Mental Health Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

[3] The following outlines the context and procedural history to the Applications before us.

1.1 Context and procedural history

[4] On 20 May 2020, a Form F11 – Application for the Commission to deal with a Bargaining Dispute was filed with the Commission by the HSU. The Application, which named as respondents the VHIA and the ANMF, was allocated the matter number B2020/278 and outlined that in bargaining for a proposed agreement to replace the Nurses Agreement, a dispute had arisen as to its scope. Following this:

•  A conference was held before Commissioner Lee on 25 May 2020.

•  The VHIA filed a Form F11 – Application for the Commission to deal with a Bargaining Dispute on 29 May 2020 (B2020/299) and a further conference was held on 23 June 2020.

•  The ANMF filed a Form F11 – Application for the Commission to deal with a Bargaining Dispute (B2020/408) on 30 July 2020.

•  The three matters (B2020/278, B2020/299 and B2020/408) were joined on 13 August 2020.

[5] The matters were allocated to a Full Bench with Deputy President Gostencnik as presiding member. Ahead of a directions hearing listed for 17 August 2020, correspondence was sent to the Chambers of both the President and Deputy President Gostencnik on 14 August 2020 by the HSU attaching the Arbitration Agreement agreed to by the parties. The Arbitration Agreement summarised the issue dispute and the parties’ respective positions broadly as follows:

(a) The parties are bargaining for an enterprise agreement (the Replacement Nurses Agreement) to replace the Nurses Agreement. The VHIA and ANMF seek to define the coverage of employees in the Replacement Nurses Agreement as:

“Enrolled Nurse means a person registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 and includes a person:

(i) registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 with a standard condition “may practise only in the area of mothercraft nursing”; or

(ii) With an equivalent qualification and role as described in subclause 4.1(q)(i) above;

but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.

Public Mental Health Services means mental health services delivered on a service, department, unit or program level operated by an employer covered by the Victorian Public Mental Health Services Enterprise Agreement 2016- 2020 (or its successor).

Registered Nurse means a person registered in Division 1 Registered Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009, but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.” (emphasis as per text)

(b) The HSU opposes the VHIA’s and ANMF’s proposed definition of employee coverage for the Replacement Nurses Agreement;

(c) The parties are also bargaining for an enterprise agreement (the Replacement Mental Health Agreement) to replace the Victorian Public Mental Health Services Enterprise Agreement 2016 - 2020 (the Mental Health Agreement). The VHIA and ANMF seek to define the coverage of employees in the Replacement Mental Health Agreement as:

“‘Employee’ under the Mental Health Agreement be amended by adding:

“In this Agreement, ‘engaged solely or predominantly in the provision of Mental Health Services, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.””

(d) The HSU opposes the VHIA’s and ANMF’s proposed definition of employee coverage for the Replacement Mental Health Agreement;

(e) The parties have agreed questions for the Arbitration which are whether the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate, having regard to various specified matters set out in [3] above; and

(f) The parties have agreed, in the Arbitration Agreement, to comply with the outcome of this Arbitration.

[6] The parties have agreed that, in arbitrating the dispute in relation to the proposed coverage clauses, regard should be had to the following: 1

(a) whether the employees proposed to be covered by each of the replacement agreements, are fairly chosen within the meaning of “fairly chosen” as referred to in s 186(3A) of the Act);

(b) whether the proposed coverage in each of the replacement agreements will promote the fair and efficient conduct of bargaining in relation to each of the replacement agreements;

(c) in relation to each of the replacement agreements, the interests of the employers and the employees proposed to be covered by that replacement agreement;

(d) the existing coverage of the Nurses Agreement and the Mental Health Agreement;

(e) in relation to each of the replacement agreements, the history of applicable industrial instruments;

(f) the desirability that the coverage of the respective replacement agreements be mutually exclusive; and

(g) any other matters that the Commission deems relevant.

[7] The HSU referred to paragraph 15 of the Arbitration Agreement, which provides:

“The members of the Full Bench shall not include a member of the Commission who has conducted a conciliation in relation to the Replacement Nurses Agreement or the Replacement Mental Health Agreement.”

[8] It was stated by them that the rationale for this condition included the intention that the dispute be heard and determined by members of the Commission who have not had substantive dealings with the parties in the current round of bargaining and that it was the HSU’s and VHIA’s view that this would exclude, amongst others, Deputy President Gostencnik, who had dealt with Commission matters B2020/392 and B2020/406. The HSU and VHIA sought that the arbitration of the three matters be reallocated to other members of the Commission.

[9] This Full Bench was constituted on 21 August 2020. Following a mention on 3 September 2021, the matters were listed for hearing, and directions for the submission of materials were made on 8 September 2020.

[10] On 11 September 2020, a Form F52 Order for production of documents was filed and served by the HSU. The then Department of Health and Human Services 2 (DHHS) and the ANMF opposed the order sought. A hearing was conducted on 25 September 2020. The Decision in relation to the interlocutory application was made by Deputy President Clancy on 5 October 2020.3 The DHHS was ordered to produce some, but not all documents that were the subject of the HSU’s application. An additional order requiring the ANMF to produce various documents was also made in the terms sought by the HSU.

[11] Submissions, witness statements and various documents were filed by the HSU on 19 August 2020, statements in reply and further material on 19 October 2020 and subsequent to that, some additional documents were filed. The witnesses for the HSU were:

•  Mr Daniel Darmanin

•  Associate Professor Bridget Hamilton

•  Ms Kimberley Gallaher

•  Ms Stavroula (Leah) Rebis

•  Mr John Murphy

•  Mr Lloyd Williams

•  Mr Peter Crowe

•  Mr Paul Healey

[12] On 23 September 2020, the ANMF and VHIA each filed and served submissions, witness statements and documents upon which they relied. The ANMF witnesses were:

•  Mr Paul Gilbert

•  Ms Patricia O’Hara

•  Mr Andrew Morgan

•  Ms Kim Sykes

[13] The VHIA witnesses were Mr Stuart McCullough and Mr Tim Nagle.

[14] A hearing was conducted over four days. Following the receipt of final written submissions, the parties’ closing arguments were heard on 30 November 2020.

[15] On 9 December 2020, an unsolicited letter co-signed by the General Manager Health Program and the Service Director – Emergency Medicine – Acute Medicine, SubAcute, Community Program from Monash Health was received by the Commission. The parties were invited to provide their views on how the Full Bench should respond to the correspondence.

[16] On 16 December 2020, correspondence from the Executive Director of People & Culture of Monash Health was received by the Commission. It sought to explain why the 9 December 2020 letter had been sent, retract it and withhold consent to both that letter and the further correspondence from being used as evidence in the proceedings. Submissions were received from the HSU on 17 December 2020 and from the VHIA and ANMF on 18 December 2020, in which the parties’ respective positions as to the appropriate treatment of the correspondence were outlined. We do not, however, propose to have regard to this material. It was received after the evidentiary cases of the parties had closed. Further, its genesis was not satisfactorily explained and nor was the authority of either of the authors of the initial correspondence or the author purporting to retract it.

2. Evidence

2.1 Paul Healey (HSU Witness)

[17] Mr Paul Healey is the Secretary of the HSU, having held office since September 2019. He previously held the office of Assistant Branch Secretary of the HSU from June 2011 and was Mental Health Officer from June 2010. Prior to working for HSU, he worked as a mental health nurse from 1985.

[18] Mr Healey says he became aware of the proposed removal of the exclusion of mental health nurses from the Replacement Nurses Agreement in late November 2019. Mr Healey says he telephoned Ms Lisa Fitzpatrick of the ANMF to query whether this was what was proposed and was informed by her that it was not. A subsequent email from Ms Fitzpatrick to Mr Healey advised that the ANMF had amended its claim to reflect the status quo. 4 Mr Healey also says he was provided with the revised claim of the ANMF marked “Without Prejudice ANMF Claims ANMF Response”, which contained a list of marked-up definitions, including that of “Registered Nurse” and “Public Mental Health Services”, which he says had not appeared in previous Nurses’ Agreements.

[19] On 2 December 2019, Mr Healey advised Mr McCullough and Mr Nagle of the VHIA that the HSU would not be attending the bargaining meeting that day but asked that it be kept notified of any claims/changes to the Nurses Agreement that would impact on its “mental health members.” Mr Healey subsequently attended a meeting at the ANMF offices with a colleague, Ms Kate Marshall and Ms Fitzpatrick and Ms Rachel Halse of the ANMF on 8 December 2019. Mr Healey says that Ms Fitzpatrick agreed to leave the coverage as it was under the Nurses Agreement and said that the HSU need not participate in bargaining as nothing would be changing.

[20] On 13 December 2019, Mr Healey sent an email to Ms Fitzpatrick, which was copied to representatives of the VHIA and DHHS, and which read:

“We refer to your email dated 29 November.

On review as you stated in your email, the status quo remains.

We see that as that the definition of Public Mental Health Services should not be added to the definition list.

This is because we are unsure of what the recommendations will be coming out of the Royal Commission.

If this definition is not added, our concern will be satisfied and there will not need for us to attend [the bargaining for the Replacement Nurses Agreement].

If the parties could let us know that would be great.” 5

[21] Mr Healey recalls also speaking to Mr Nagle at around the same time and Ms Allison Sidebotham from the DHHS in which he advised them that the ANMF had agreed to leave the definitions as they had been in the Nurses Agreement and that if they had any problems with this, to let him know. He says they agreed to do so and that he did not hear anything further from them thereafter, nor did he receive a response to his email of 13 December 2019.

[22] Between January 2020 and 15 April 2020, Mr Healey says he was not aware of any communications between the ANMF and the VHIA, nor of any between either of these parties and the Victorian Government, about the content of the Replacement Nurses Agreement. He says that the HSU was not invited to participate in any discussions between those parties, nor was it made aware that any such discussions were taking place.

[23] On 16 April 2020, Mr Healey says he was advised by a HSU member that, at a state-wide meeting that day, the ANMF had stated that all Mental Health Crisis Hub staff would be employed under the Replacement Nurses Agreement.

[24] On 23 April 2020, Ms Marshall wrote to Ms Fitzpatrick and requested a copy of the draft Replacement Nurses Agreement. In his reply Mr Paul Gilbert from the ANMF advised that what the ANMF had sought to do was define the status quo as to what 'employed solely or predominantly in the provision of Public Mental Health Services' meant. Further, Mr Gilbert said that the Replacement Nurses Agreement would provide that 'employed solely or predominantly in the provision of Public Mental Health Services' refers to the service, department, unit or program of the Employer rather than the duties of the individual employee and that in the view of the ANMF this was entirely consistent with the long standing delineation between the Nurses Agreement and the Mental Health Agreement.

[25] Ms Marshall’s response advised that the HSU sought to review the Replacement Nurses Agreement once drafting had been completed and before it was lodged with the Commission for approval, to ensure that it was satisfied there was no undermining of its coverage or its members’ interests. Despite this request, Mr Healey says that neither the VHIA nor ANMF provided a copy of the draft Replacement Nurses Agreement to either Ms Marshall or the HSU.

[26] Mr Healey says that on 28 April 2020 the HSU wrote to the Hon. Tim Pallas, Minister for Industrial Relations. This letter covered the following matters:

•  That the HSU had been informed that the Victorian Government and the ANMF had come to an in-principle agreement regarding the Replacement Nurses Agreement, which had gone out to vote and has been endorsed by the workforce.

•  There had been an addition made to the definition of Registered Nurse.

•  This change had been made without any consultation with the HSU, despite the HSU’s communications with the ANMF, VHIA and Victorian Government, and the understanding the HSU had formed that the definition would not be amended.

•  The HSU’s concern at what it considered to be a lack of transparency particularly as the issue had been raised in November 2019.

•  A request that the definition be removed because it directly affected HSU members and its historical coverage of the mental health sector.

•  That in the event the definition was not removed, legal action would be taken to ensure it was.

[27] Mr Healey also sent correspondence on behalf of the HSU to both the ANMF and the VHIA on 1 May 2020 in which he referred to the established practice of having enterprise agreements in the nursing industry for general nursing and mental health nursing having been disturbed by a proposed change in scope for the Replacement Nurses Agreement that would potentially see employees covered by the Mental Health Agreement fall within the Replacement Nurses Agreement. Alleging the change had been made without it having been notified and asserting reliance upon representations and commitments made by the ANMF and VHIA during the period of bargaining, the HSU claimed the behaviour of the ANMF and VHIA had not met the good faith bargaining requirements as contained in s 228 of the Act and sought an undertaking that they would amend their proposed Replacement Nurses Agreement so that it contained the existing exclusion of mental health nurses without any additions or amendments.

[28] The ANMF responded on 1 May 2020 rejecting the allegation that it had breached the good faith bargaining requirements under the Act and stating that the ANMF stood ready to discuss the question of the scope of the Replacement Nurses Agreement at short notice. The ANMF asserted:

•  The coverage of the two agreements did not fix on “mental health nursing” as suggested by the HSU, with the distinction between them relating to the employers’ provision of public mental health services. The drafting for the Replacement Nurses Agreement addressed that issue.

•  The HSU request for an undertaking that the ANMF agree to retain the exclusion without any additions or amendments was an attempt to secure agreement content and a bargaining outcome under the guise of a good faith bargaining matter.

•  Sending out the proposed Replacement Nurses Agreement for approval was not imminent as there was still substantial drafting work to be undertaken on its terms, which might include any agreed provisions concerning the scope of the agreement arising from the proposed discussions;

•  The scope of the (current) Nurses Agreement had to be understood in the context of the exclusion in the scope of the Mental Health Agreement and clause 11.4 of that agreement; and

•  The complaint that the exclusion of nurses employed “solely or predominantly in the provision of public mental health services” had not been included was misplaced and that it had been maintained would have been apparent from the email and the attached material sent to Ms Marshall of the HSU on 23 April 2020.

[29] The VHIA’s response stated that the proposed Replacement Nurses Agreement had not been distributed for ballot, a ballot date had not been set and that it undertook to advise the HSU of the ballot date, once set. It otherwise denied not having met the good faith bargaining requirements.

[30] In a subsequent exchange of correspondence on 4 May 2020, Mr Healey requested a copy of the proposed Replacement Nurses Agreement in its draft form ahead of any meeting. The ANMF replied by stating that no such document was in existence and even if one did exist, it would be difficult to see what bearing it would have on the expressed concern of the HSU regarding the exclusion of nurses employed “solely or predominantly in the provision of public mental health services”. The ANMF stated there was no intent to change the incidence and application clause or the respondency list from that contained in the Nurses Agreement and said the only additional item beyond that already provided that might be of interest to the HSU was the proposed definition of ‘Public Mental Health Service’ itself.

[31] Mr Healey said he and Ms Marshall attended a Zoom meeting with ANMF and VHIA on 7 May 2020. He recalls that the parties disagreed on the question of whether the proposed changes altered the status quo in a substantial way.

[32] On 8 May 2020, Ms Marshall emailed Mr McCullough of the VHIA and Ms Fitzpatrick of the ANMF the “HACSU’s outline of issues” document, which set out its concerns regarding proposed wording for the Replacement Nurses Agreement. The HSU asserted the proposed wording affected the historical delineation between two nursing agreements and that it would place the focus on the service, department, unit, or program of the employer rather than the duties of the individual employee. The HSU argued the duties were of the upmost importance because if a clinician was providing a role that was predominately or solely in the provision of a mental health service in any service – not just a Public Mental Health Service, they were providing work that is outlined in the Mental Health Agreement. The HSU asserted the proposed words were not justified, neither was the example that had been included. Specifically, it said the potential consequences of the inclusion of the underlined words would be that some roles would fall within the scope of the Replacement Nurses Agreement rather than the Mental Health Agreement (Mental Health Clinicians who work in an Enhanced Crisis Assessment Treatment Team (ECATT), Consultation Liaison Nurses, Mental Health Clinicians who work in the Alcohol and other Drugs (AOD) sector and Mental Health Clinicians working in the ED Hubs). It said these roles were clearly covered by the Mental Health Agreement, with the exception of Consultation Liaison Nurses. The email noted the parties disagreed on maintaining the status quo and the HSU’s belief that the proposed words were not necessary. The HSU requested written information as to why the VHIA and the ANMF believed that the inclusion of the proposed words was necessary and to provide examples supporting such.

[33] Mr Gilbert of the ANMF sent an email in reply on 11 May 2020 in which he repeated the ANMF’s concerns about how to describe the delineation in coverage between the two agreements and its view that nurses working in an emergency department (ED) are and have always been covered by Nurses Agreements. He asserted the form of words agreed between the parties in bargaining in late March 2020 best reflected the existing delineation and minimised any potential confusion and that the requirement for such a clause was further evidence that there had historically been differences of application of agreement coverage by, and perhaps within, different employers covered by both agreements. Mr Gilbert also suggested that clause 11.4 of the Mental Health Agreement had been included due to difficulties the HSU had experienced in terms of delineation when seeking protected action ballot orders. Mr Gilbert took issue with assertions made by the HSU in relation to various specified roles and stated that the ANMF was satisfied with the term proposed for the Replacement Nurses Agreement and that its rationale for its adoption had been explained. He added that the ANMF was also content to receive and consider alternative proposals from the HSU but asserted that it had not yet provided any such proposals, as had been agreed in the meeting on 7 May 2020. The HSU disputed a number of Mr Gilbert’s assertions and advised that they would be discussed in a meeting scheduled for 12 May 2020 and until such time, the status quo should remain.

[34] Mr Nagle of the VHIA also sent an email on 11 May 2020 to Mr Healey and Ms Marshall, which relevantly stated that the VHIA’s interest in the coverage issue was limited to ensuring the Replacement Nurses Agreement is unambiguous so that its members may administer the various agreements with confidence.

[35] Mr Healey says he and Ms Marshall attended a Zoom meeting with the ANMF and the VHIA on 12 May 2020 and that following this meeting, the parties continued to exchange correspondence concerning the proposed scope of the Replacement Nurses Agreement. Mr Healey also says that following the exchange of emails, he and Ms Marshall formed the view that the discussions with the ANMF and the VHIA were not advancing the matter and so the s 240 application (B2020/278) was lodged with the Commission on 20 May 2020.

[36] Minister Pallas provided a response to the HSU on 21 May 2020, urging it to take up the issue of coverage in the first instance with the parties to the negotiations, given its detailed nature. The Minister’s letter also indirectly noted there was to be a conference at the Commission on 25 May 2020. This conference was presided over by Commissioner Lee.

[37] Mr Healey’s evidence going to the establishment of six mental health hubs (Hubs), announced by the Victorian Government in May 2018 begins with reference to the media release dated 10 May 2018 issued by the Victorian Government, which stated:

“NEW MENTAL HEALTH HUBS TO TREAT MORE VICTORIANS SOONER

People needing urgent mental health treatment will get the specialist care they need, allowing busy emergency departments to treat other patients, thanks to a major investment by the Andrews Labor Government.

Premier Daniel Andrews and Minister for Mental Health Martin Foley today joined specialist staff at the Royal Melbourne Hospital – one of six sites across the state set to be part of a rollout of new emergency department crisis hubs made possible by a $100.5 million investment in the Victorian Budget 2018/19.

The other five crisis hubs will be established at Barwon Health, Monash Medical Centre, St Vincent’s, Sunshine and Frankston hospitals – and will include separate 24-hour, short-stay units in emergency departments to treat people during the times of crisis.

The investment directly responds to an increasing number of people with mental health, drug and alcohol problems who seek help in emergency departments, when their condition has reached crisis point.

New data shows that across the state, emergency departments experienced an increase in mental health patients of almost 20 per cent over the last four years.

People presenting with urgent mental health, alcohol and drug issues will be fast-tracked to these hubs for specialist, dedicated care – relieving pressure on our EDs and our hardworking doctors and nurses.

Patients will be assessed and treated by an ED and mental health team – made up of psychiatrists, mental health nurses and social workers – and referred to other services as required.

The new hubs will ensure people presenting with mental health issues get the right support, sooner, and that our general emergency departments are able to focus on caring for other patients.

They are part of a record $705 million investment in this year’s Budget to give Victorians with mental illness and addiction and their families the treatment and the support they need.

Quotes attributable to Premier Daniel Andrews

“Our hard-working ED nurses and doctors are dealing with more mental health patients than ever before. We’re taking the pressure off them, so that they can give more Victorian families the emergency care they need.”

“These hubs will give people suffering an urgent mental health crisis the specialist care they need, and free up our busy EDs to do what they do best.”

Quotes attributable to Minister for Mental Health Martin Foley

“This will fundamentally change the way we deal with mental health presentations in EDs – freeing up important frontline resources in our hospitals.”

“We want to end the revolving door in our emergency departments – that means giving people with a mental illness or addiction access to the immediate, dedicated services they need.””

[38] Mr Healey says during 2019, he attended a number of meetings at the DHHS to discuss the implementation of the Hubs and that there were a number of draft Guidelines for the operation of the Hubs prepared by the DHHS and then discussed with relevant stakeholders, including the HSU and other affected unions. Mr Healey refers to a copy of Guidelines issued in July 2019 and says a later version, the DHHS Guidelines for Emergency Department Mental Health and Alcohol and Other Drug Hubs – October 2019 (DHHS Guidelines) nominated, for the first time, the industrial instruments said to apply to the workforce in the Hubs. He says that there had been no prior consultation with the HSU, and HACSU in particular, regarding this development.

[39] Mr Healey says he raised strong objections to the DHHS becoming involved in demarcation issues and dictating industrial coverage at the first consultation meeting that followed the issuing of the DHHS Guidelines. He says after this meeting the HSU was not invited by the DHHS to any further consultation sessions or any other meetings. He also says he was aware that the DHHS formed “working groups” with the hospitals and the ANMF, which excluded the HSU.

[40] Mr Healey says that the DHHS Guidelines have left the six hospitals with flexibility as to how they will configure and staff the Hubs and claims that based on his discussions with the hospitals, as well as his observations of the meetings organised by the DHHS in 2019, there was no uniformity amongst the hospitals about the form of Hubs that each will be establishing. Mr Healey says that Monash Medical Centre in Clayton is the only operational Hub that has been established and that it has two registered nurses, both of whom are mental health nurses employed under the Mental Health Agreement.

[41] Mr Healey argues that, from an industrial and clinical view, it is important that when nurses provide mental health services they should have the coverage and protections of the Mental Health Agreement. He provides two examples to support this assertion:

(1) The classification prescriptions in clause 99 (for which there is no equivalent under the Nurses Agreement) are critical in regulating how mental health nursing is to be delivered because they offer guidance and protections for the nurses as a reference point with which they, and their employers, must comply; and

(2) The classification and staffing regime in clause 91 of the Mental Health Agreement prescribing the staffing profile/minimum number of mental health nurses of each position/classification to be appointed to each ward, unit or service ensures that not only is there a sufficient number of appropriately skilled and qualified mental health nurses in each unit, but that there is an appropriate mix of nurses of different skills and responsibilities appointed in each service. By contrast, the Nurses Agreement only provides that employers should “aim to achieve” a minimum skill mix of one third registered nurses with more than three years’ experience, one third with one to three years’ experience, and one third graduate or Enrolled Nurses (clause 86).

[42] Mr Healey submits that the classifications guide decision making, because they outline what an employee is empowered to do, but his evidence seemed to evince that this simply served to confirm the appropriate rate of pay. 6 Mr Healey also filed a supplementary witness statement in which he provides responsive views to discrete aspects of the evidence relied upon by the ANMF and VHIA.

[43] Under cross-examination, Mr Healey accepted that outside of the Mental Health Agreement, the terms registered psychiatric nurse and registered enrolled nurse are not used by either the Australian Health Practitioner Regulation Agency (AHPRA) or the Nursing and Midwifery Board of Australia (NMBA), which provide training for nurses. 7 Mr Healey accepted these terms are outmoded, outdated and unnamed outside of the Mental Health Agreement. Further, he said that to the extent there was reference in Clause 99 of the Mental Health Agreement to training, it was outmoded and outdated.8 Mr Healey agreed that clause 99 was clearly for an industrial purpose, as a way for persons covered by the Mental Health Agreement to advance through the classifications9 and accepted that any nurse who has to make a decision regarding the restraint of a patient must comply with the Mental Health Act 2014 (Vic) (Mental Health Act).10

2.2 Lloyd Williams (HSU Witness)

[44] Mr Lloyd Williams is the National Secretary of the HSU. Mr Williams began his career working at the Larundel Psychiatric Hospital and Mont Park Psychiatric Hospital. He recounts that during the period in which large mental health institutions were progressively closed by successive Victorian state governments in the 1980s and 1990s, mental health workers remained employed by the State of Victoria as public servants pursuant to the Public Service Act 1974 (Vic) whilst being “seconded” and physically transferred to the new mental health facilities attached to public hospitals. Initially, the terms and conditions of the mental health workers were set by the Victorian Public Service Board by a series of determinations (colloquially called the Blue Books) and after 1993, these determinations were used to establish the first federal award, the Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug Services) Award 1995 (1995 HACSU Award). Mr Williams says that mental health workers were able to work in the public hospital system without loss of their employment terms and conditions through the operation of s.97 of the Mental Health Act 1986 (Vic) and that most mental health workers remained employees of the State until the late-1990s.

[45] Mr Williams says that in or around 1994, the Victorian government sought to outsource the provision of mental health services in public hospitals from the then Department of Health and Community Services to organisations which had entered into Health Services Agreements dealing with the transfer of employees, medical records and equipment assets from the Department. The Health Services Agreements permitted public hospitals to employ staff directly under federal Awards. Relevantly, mental health nurses directly employed by public hospitals during this process were covered by the Nurses (Victorian Health Services) Award 1992 (1992 Nurses Award).

[46] The HSU brought a case in the Federal Court in 1996 alleging that certain mental health service providers had breached the terms of the 1995 HACSU Award. In particular, the HSU alleged there had been a transmission of the business of providing acute adult mental health services from the State of Victoria to the public hospitals, and consequently, they were bound by the 1995 HACSU Award. The State of Victoria argued that even if there had been a transmission of business, the 1995 HACSU Award had ceased to have application to the employment of mental health nurses and the applicable award was the 1992 Nurses Award.

[47] In Health Services Union of Australia v North Eastern Health Care Network, 11 Justice Marshall upheld the HSU’s claims that there had been a transmission of business from the State of Victoria to the public hospitals and determined that both the 1992 Nurses Award and the 1995 HACSU Award could apply to the employees engaged in the provision of adult mental health services. His Honour further determined that the appropriateness of the application of the either Award was a matter for the Australian Industrial Relations Commission (AIRC).

[48] A demarcation dispute between the HSU and the ANMF in the AIRC during the same period was resolved by a memorandum of agreement dated 26 November 1997, whereby both unions acknowledged that all employees engaged in the provision of psychiatric/mental health services in the public sector should be subject to a certified agreement applicable only to all such employees. The unions also agreed to cooperatively pursue the making of an award for such employees which would operate to the exclusion of the 1992 Nurses Award. Subsequently, the HSU and ANMF entered into negotiations with the government and public hospitals through the VHIA for a new industrial instrument pursuant to the demarcation agreement. Mr Williams recounts that a Heads of Agreement called the Victorian Psychiatric Services Agreement 1997 was executed by the HSU, the ANMF, the VHIA, the State of Victoria, Mercy Health & Aged Care and Latrobe Regional General Hospital on 19 January 1998. He says this was a precursor to a series of certified agreements pertaining to the provision of specialist psychiatric nursing. Under clause 3 of the Heads of Agreement, the parties agreed to take whatever steps necessary to have the agreement drawn up into various certified agreements. The Heads of Agreement and the certified agreements applied to all employees eligible to be members of the HSU (No 2 Branch) and/or the ANMF who were “engaged solely or substantially in the provision of psychiatric and/or mental health services in Victoria”. The parties to the Heads of Agreement further agreed to develop certified agreements specific to the provision of psychiatric and/or mental health services in terms which included the adoption of the detailed classification standards for psychiatric nurses in the 1995 HACSU Award. Mr Williams says there were 22 certified agreements made pursuant to the Heads of Agreement in or around 1997 in substantially the same form between the HSU, the ANMF and the relevant employer and that following their expiry, the parties bargained for the following certified agreements:

•  the Victorian Psychiatric Services Certified Agreement 2000-2004 (PR944942);

•  the Victorian Psychiatric Services Certified Agreement 2004-2007 (PR955229), which was extended by agreement to 2009;

•  the Victorian Public Mental Health Services Enterprise Agreement 2012-2016 [2012] FWAA 10189; and

•  the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 [2017] FWCA 2072 (Mental Health Agreement).

[49] Mr Williams says that the words “solely or substantially” were used in the coverage clause of various agreements until the Mental Health Agreement, when the expression was changed to “solely or predominantly”.

[50] As to the occupational classifications, Mr Williams said Appendix A of each of the 1997 Agreements set out the skill levels and classification definitions, standard and structures of registered psychiatric nurses via two components:

•  the group standard, which provided a narrative description of the work undertaken by employees in the applicable occupational classification; and

•  the work level standard, which provided a typical evaluation, definition, features and typical duties for each level, to enable classification of positions.

[51] Mr Williams asserts the group standards in clauses 4-13 of Appendix A of the 1997 Agreements are substantially identical to clauses 99.2 to 99.11 of the Mental Health Agreement and that the differences between the 1997 Agreements and the current Mental Health Agreement are as to form, not substance. He says there is no equivalent to these clauses in the Nurses Agreement or its predecessors. Mr Williams says that the work level standards established in the 1997 Agreements were detailed and comprehensive and that, over the years, the level of detail in the work level standards of the mental health agreements has increased substantially. Mr Williams argues there is no classification structure that recognises or applies to mental health nurses in the Nurses Agreement at all, and he further asserts that the classifications in the Nurses Agreement do not contain the same level of detail regarding the features and duties for each classification as the Mental Health Agreement.

[52] Mr Williams says that the detailed group and work standards for psychiatric nursing in the past and current Mental Health Agreements reflect the specialist nature of psychiatric nursing and mental health, and that the ANMF and VHIA have agreed with the HSU that psychiatric nursing is a specialist branch of nursing warranting detailed and occupationally specific standards and classifications of work. He claims the specialist nature of mental health nursing has been recognised by the Nurses and Midwives Act 1950 (Vic), which established a separate register on the Nurses Board of Victoria for mental health nurses and a statutory requirement that nurses who wished to apply for registration as a “mental nurse” hold a qualification in mental health nursing. Mr Williams also says mental health nurses continued to be registered as specialist mental health nurses in Division 3 of the registration kept by the Nurses Board until the enactment of the Nursing and Midwifery Board of Australia under the Health Practitioner Regulation National Law. While the categories of registration are now limited to registered nurse (Division 1) and enrolled nurse (Division 2), Mr Williams asserts that the specialist nature of mental health nursing continues to be recognised by most employers, who require that any person wishing to be employed as a mental health nurse hold a post-graduate qualification in mental health nursing. Mr Williams also relies on draft Productivity Commission recommendations from its draft report on Mental Health in October 2019 that accreditation standards should be developed for a three-year direct-entry (undergraduate) degree in mental health nursing and that there be an assessment into the merits of introducing a specialist registration system for nurses with advanced qualifications in mental health.

[53] Mr Williams says that in his experience, employers in the public health sector have a general preference that mental health nurses hold a mental health qualification on top of their basic nursing qualifications. He says he is unaware of any lack of efficient operation in public hospitals where general nurses may work cooperatively with mental health nurses and that he is not aware of any instances where disputes have arisen between such employees over issues of industrial coverage. Further, Mr Williams disagrees that there has been ongoing disputation around the extent of coverage under the Replacement Nurses Agreement. He gave evidence in relation to a previous dispute concerning Barwon Health in which he says the employer was attempting to bring all employees at a facility called Blakiston Lodge under the Nurses Agreement for administrative ease which was resolved by the employer agreeing to apply the Mental Health Agreement. He said there was no outcome in that dispute agreed between the HSU and the ANMF. Mr Williams submits that the only disputation is that which has recently been created by the ANMF in seeking to change the established coverage in the sector.

[54] Noting the proposed change to the scope of the Nurses Agreement, Mr Williams contends that the words “service, department, unit or program” in the definition of Public Mental Health Service in the Replacement Nurses Agreement do not have a clear or universal meaning as their use can vary from hospital to hospital. He says that sections of a hospital may have multiple sub-sections that are described as programs, units, departments or services. As a result, Mr Williams asserts the terms in the proposed new definition will cause a great deal of uncertainty about their meaning.

[55] Mr Williams filed a supplementary witness statement in which he provides responsive views to discrete aspects of the evidence relied upon by the ANMF.

2.3 Kimberley Gallaher (HSU Witness)

[56] Ms Kimberley Gallaher has been employed by Monash Health as a Rapid Response Nurse (a mental health nurse position) in the Mental Health Hub at Clayton Hospital since May 2020. She is a member of HACSU employed under the Mental Health Agreement in the Registered Psychiatric Nurse (RPN) classification of RPN4. She has previously worked for the Eastern Health mental health triage service, in the Psychiatric Assessment and Planning Unit (PAPU) at Maroondah Hospital, which was operated by the mental health service and was designed to support the ED by providing both mental health and medical services to patients who presented to emergency.

[57] Ms Gallaher challenges aspects of the evidence given by Mr Morgan for the ANMF in relation to the operation of Eastern Health on the basis that it does not accord with her experience when working there although she acknowledged that her work there for the mental health triage service only sometimes saw her located in the ED. 12

[58] Ms Gallaher says she was employed specifically to work as a mental health nurse in the Hub at Clayton Hospital with the job title “Behavioural Health Rapid Response Nurse”. Although the Hub has been operational and receiving patients since mid-June 2020, Ms Gallaher says it is currently referred to as the “Engage Team” as it does not yet have a physical standalone space in the ED. Following completion of building works, Ms Gallaher says that the Hub will have its own cubicles, nursing station, offices and interview spaces adjacent to the ED. Ms Gallaher does not consider the Hub has been able to function and provide mental health services to its full capacity.

[59] Ms Gallaher says she is currently one of two rapid response nurses in the Hub at Clayton Hospital employed under the Mental Health Agreement. There is a third rapid response nurse position that has not yet been advertised. It is required as two nurses cannot provide cover for two shifts a day, seven days a week. Ms Gallaher says there are no general nurses employed in the Hub and that the other staff employed are a social worker, an AOD clinic nurse specialist (employed under the Nurses Agreement), a peer work team leader, a consumer peer worker and a family peer worker. She understands that once the building works are complete, there will be a second round of recruitment for staff to work in the Hub.

[60] Ms Gallaher says that while functionally she operates in the ED, she clinically practices under the Mental Health Act which enables her to provide care and conduct clinical decision-making under the authority of the authorised psychiatrist or their delegate for Clayton Hospital. She says that her position description reflects this, and her reporting line is as follows:

•  Operational: Nurse Manager, Emergency Department, Clayton;

•  Professional: Director of Nursing, Mental Health Program; and

•  Mental Health Clinical Governance: Emergency Psychiatric Services, Mental Health Program.

[61] Ms Gallaher said she reports operationally and clinically to Ms Nicole Edwards, a mental health nurse specialist employed under the Mental Health Agreement, who in turn reports to the clinical director of emergency operations, the community manager of mental health and the director for mental health services.

[62] Ms Gallaher says that patients enter the Hub via the ED. The triage nurse, who practices as a general nurse, will “code” to the Hub patients who appear to have “behavioural health” issues which can be assessed by the triage nurse themselves, or a notification is received by the Hub from a paramedic or the police who are arriving with a patient. Ms Gallaher says “behavioural health” issues encompass mental health, drug and alcohol issues, behaviour disturbance, intellectual instability or a Victoria Police referral under s 351 of the Mental Health Act. Upon receiving notification from the triage nurse, Ms Gallaher says that she or the other rapid response nurse will meet the patient at triage along with a registrar to conduct a brief joint assessment. This initial assessment is conducted to establish the reason for the patient’s presentation, their legal status (whether voluntary or compulsory), their substance abuse, forensic and mental health history, and their needs at the time.

[63] Ms Gallaher says that her initial assessment may be that the patient needs a mental health response, in which case she would refer them to the Emergency Psychiatric Service (EPS) in the ED which is staffed by psychiatrists and mental health clinicians including mental health nurses, social workers, psychologists and occupational therapists. If the patient has multiple or complex needs, such as AOD treatment, social work due to family violence or child protection issues, homelessness or other multiple needs, Ms Gallaher says she will refer the patient into the Hub. She remarks that all mental health patients must present to the Hub for assessment by the mental health rapid response nurse even if they may ultimately be treated by the EPS, AOD specialists or social work. Once a patient is in the care of the Hub team, Ms Gallaher says they are treated according to their needs and are often treated concurrently by clinicians. For instance, Ms Gallaher says that if she has determined that a patient needs AOD, the AOD nurse can link them with the appropriate services while they are in the Hub. Ms Gallaher says she has not been required to perform general nursing duties within the ED.

[64] Ms Gallaher describes her role as being a coordinator of patient care where she meets the patient at triage, assesses their needs and arranges for them to be provided with the appropriate care. While the specific clinical care is provided by the relevant clinician, be it EPS, AOD or social work, Ms Gallaher says she maintains oversight of the patients in the Hub and that the mental health clinical responsibility for patients is not to the ED but through the mental health structure to the authorised psychiatrist. She says she also conducts rounds and sees all mental health patients in the ED to ensure their needs are being met and that the clinicians have an appropriate plan for their care. Ms Gallaher says that she also attends Code Greys in the ED, which is an emergency response to situations or incidents of aggression, threatening behaviour, abuse and violence. She says her role in this situation includes ensuring that the response to a patient is proportionate and has been done for a valid reason under the Mental Health Act or the common law duty of care, and that the process has been properly documented.

[65] Ms Gallaher says that there is no equivalent classification for her position if she were to be covered by the Nurses Agreement and that she is uncertain as to whether she would be graded or paid the same. Ms Gallaher claims she would lose the recognition of having specialist skills and the identity that attaches to her role. However, under cross-examination Ms Gallaher accepted that she was unaware that her status as a mental health practitioner under the Mental Health Act would remain the same regardless of the agreement that covered her. 13

[66] Ms Gallaher opines that the low recruitment rates into mental health nursing warrant the need for the Mental Health Agreement as it is important to offer nursing graduates the recognition that mental health is a specialist area of practice. Furthermore, Ms Gallaher holds the view that the work standards in the Mental Health Agreement demonstrate that nurses need a certain level of clinical skill and knowledge to be able to function safely in mental health practice and that general nurses do not have the skills, experience or training to appropriately utilise the power to complete an assessment order under the Mental Health Act.

2.4 Stavroula (Leah) Rebis (HSU Witness)

[67] Ms Stavroula (Leah) Rebis is a Forensic Clinical Specialist employed by Melbourne Health. Ms Rebis works in the Mid-West Area Mental Health Service, which is a division of NorthWestern Mental Health, the mental health clinical division of Melbourne Health. Ms Rebis is employed under the Mental Health Agreement, pursuant to which she is classified as a RPN5. She is a member of HACSU and is a HACSU delegate.

[68] Ms Rebis is based at Harvester Community Mental Health Clinic in Sunshine, but also travels to Sunshine Hospital, Mid-West Community Care Units (CCU) and prisons in the western region of Victoria including Ravenhall Correctional Centre, Metropolitan Remand Centre, Dame Phyllis Frost Centre and Community Corrections. She liaises regularly with Sunshine Magistrates Court Services, Sunshine Police Station, Keilor Downs Police Station, Melton Police Station and Caroline Springs Police Station.

[69] Within the Harvester Clinic, Ms Rebis says she works with another team member of the same grade and they are both overseen by the Director of Clinical Services Midwest Area, the Mental Health Service Area Manager (who is a Registered Mental Health Nurse) who then reports to the Director of Operations for NorthWestern Mental Health and the Authorised Consultant Psychiatrist. The team is referred to as the Mid-West Forensic Clinical Specialist Program. Her authority to make assessment orders under the Mental Health Act is derived from her status as a “mental health practitioner” pursuant to the Mental Health Act.

[70] As to her work within Sunshine Hospital, Ms Rebis says she liaises and interacts with the ED, acute mental health and at times the non-mental health inpatient services, special extended care wards and community mental health clinics. She says that emergency mental health care is provided by the Emergency Mental Health (EMH) team, which is staffed by mental health clinicians. The EMH team is situated above the ED area so it is accessible for the assessment of persons who attend the ED. Ms Rebis says that the EMH service is provided to Sunshine Hospital by Midwest, a subsidiary of NorthWestern Mental Health Service, but that Western Health who operates Sunshine Hospital is not a designated mental health service under the Mental Health Act.

[71] Ms Rebis observes that the nurse in charge of the ED is a general nurse, not a mental health nurse. As such, Ms Rebis says that she will make the nurse in charge aware that there is a person presenting to an ED with a “behaviour of concern.” Ms Rebis also provides the nurses within the ED immediate clinical education about the risks regarding the person. If the person is then admitted to an in-patient ward, Ms Rebis says she will endeavour to follow up with the treating team and provide secondary clinical consultation. She also speaks with the clinicians who look after the person and provides support to the teams if they have any concerns or service anxiety. As to her interaction with other units within the mental health service, Ms Rebis says she regularly interacts and provides a clinical consultancy service to internal referrals from the Midwest Area Mental Health Service acute in-patient mental health units, special extended care mental health units and CCUs. She says that the Midwest Forensic Clinical Specialist Program will triage and assess the referral, undertaken extensive file reviews to look for patterns of risk behaviour, triggers, protective factors and supports to mitigate the risk of violence, and make recommendations about what interventions may be helpful.

[72] Ms Rebis remarks that mental health nurses are trained to understand a patient’s right to second opinions regarding medication, to appeal a proposed course of treatment, to be included in the decision-making process and to be presented with all available options so that they may make an informed choice as to the trajectory of their care. She describes this process as being a collaborative one with the consumer as she looks at and accounts for the person’s whole life. Ms Rebis posits that the role of a general nurse referring a patient to a social worker may start and end with the referral whereas all clinicians in community mental health are required to remain involved throughout the treatment plan and case manage the process in a coordination capacity, regardless of referrals to other agencies.

[73] The opinion of Ms Rebis is that general nurses have limited training and experience in mental health and, as a result, they are more likely to see the presenting issue through a narrow “medical model” lens which involves treating the illness first, rather than the person in the context of their whole psychosocial situation. She says mental health practitioners are trained to treat holistically and include all aspects of health and social care in addition to the presenting illness.

[74] Ms Rebis proffers that mental health practitioners are trained to both recognise the increased level of vulnerability and inhibited ability to cope or advocate and significantly reduced tolerance levels that people with mental health problems possess and assess those presenting in an in-depth manner, taking into account other psychosocial triggers that may be connected to the current presentation so as to ensure all issues are appropriately treated. She advocates that mental health nurses have further training in psychopharmacology to understand medications specific to treating mental health conditions and that through this, mental health nurses acquire an understanding of the interactions between some medical drugs that may dilute their efficacy. Ms Rebis considers it part of her nursing discipline and role responsibility to educate both clinical and non-clinical staff about mental health issues in the community, both formally and informally.

[75] Ms Rebis says she refers to the Mental Health Agreement in order to clarify her functions, using it as a reference point if she is asked to undertake something that may be outside the scope of her practice. She asserts that the functions, duties and competencies her employer expects are separate matters to clinical decision-making. Ms Rebis regards the classifications in the Mental Health Agreement as containing the professionally-based expectations of her role and considers it establishes the standard of professionalism she is required to maintain. Moreover, she remarks that the Mental Health Agreement impresses upon her the importance of maintaining her training as a professional nurse not only to fulfil her obligations but also reflect her grade. Ms Rebis says as a Grade 5, the expectation is that she work very independently and autonomously, making structured clinical decisions without direction and being able to legally justify any decisions made. She believes the detailed group and work standards contained in the Mental Health Agreement motivate her to maintain her continuing professional education and advancement. Under cross examination, Ms Rebis indicated that she does not use the Mental Health Agreement for determining the scope of practice or the professional standards of a mental health nurse. 14

[76] Ms Rebis is concerned that if her work was to be covered by the Nurses Agreement, there would be a loss of recognition for mental health as a specialised area of nursing, particularly as the professional parameters in the Mental Health Agreement for Grade 5 RPNs define her role. Ms Rebis has concerns about reporting to a director with no experience in mental health if there were competing organisational priorities between the medical model care and the mental health model of care. She believes that if her role was part of a medical department, she would lose valuable specific mental health support for her development and upskilling and that the loss of insight and support around her practice, development and ongoing learning could have detrimental consequences for the consumer and dilute the work of mental health nurses and their credibility.

[77] Ms Rebis states that she is a credentialed Mental Health Nurse with the Australian College of Mental Health Nurses and that in order to be re-credentialed and maintain the use of the title Credentialed Mental Health Nurse (in addition to her title as a Registered Nurse), she is required to undertake a minimum of 120 hours of professional development directly related to mental health nursing over three years, comprised of 60 hours of clinically specific professional development and 60 hours of mental health service development.

2.5 John Murphy (HSU Witness)

[78] Mr John Murphy is employed by Ballarat Health Services as a Registered Psychiatric Nurse in the Prevention and Recovery Centre (PARC) at Ballarat Health. He is classified as RPN3 under the Mental Health Agreement. He is also a member of HACSU and a HACSU workplace delegate. Mr Murphy holds a position on the Health Services Union National Council. Mr Murphy also does some casual forensic work in the low-security prison medical centre Langi Kal Prison, where he reviews mental health patients and mental health care plans.

[79] Mr Murphy began working in the newly established Ballarat Health PARC shortly after it opened on 3 August 2020. The PARC is physically separate from the Ballarat Hospital main campus and occupies a standalone physical space on a separate street. The purposes of PARC is to provide clinical care to persons with mental health condition or mental illness in a manner aimed at preventing the admission of patients into an acute unit or reduce the length of a patient’s stay in an acute unit. As to the persons admitted to the PARC, Mr Murphy says while they have acute or severe mental health conditions, the severity of the presentation is what influences their suitability for PARC. Their medications may need adjustment or they may require some therapy work to determine particular environmental or social stressors that have exacerbated their symptomatology. Mr Murphy says it is not uncommon for staff to treat the same person over a long period with multiple occasions of admission as there may be a number of factors influencing their reasons for coming to hospital.

[80] The two pathways for entry into the PARC are that a person may be admitted via referral from a health service or, if already known to the mental health service as a case managed client, admitted by their case manager. He says that PARC can admit patients for a short stay of up to 28 days or a long stay of up to six months. There are approximately 15 staff members including a unit manager, six RPN3 shift managers, three RPN positions and five Division 2 (Enrolled) nurses. There are no general nurses working in the PARC. Mr Murphy says the work of PARC falls under the supervision of the psychiatrist employed by Ballarat Health who attends the PARC for two four-hour sessions per week. The majority of the treatment offered by the PARC is provided by the mental health nursing team.

[81] Mr Murphy comments that holding a post-graduate qualification in psychiatric nursing is vital as there is a lot of knowledge required to be an effective and skilled mental health clinician that is not learnt within the general nurse sphere. Having observed nursing students and newly qualified nurses undertaking a rotation in mental health services, Mr Murphy’s opinion is that they have minimal skills and experience in mental health nursing as the undergraduate Bachelor degree does not adequately train nurses to practice in mental health nursing. On this basis, Mr Murphy says he holds grave concerns about the capacity of any nurse without mental health training or experience to properly care for patients.

[82] Mr Murphy says he has regard to the Mental Health Agreement when recruiting mental health nurses to review the responsibilities and duties of the relevant classification. He says that the responsibilities, clinical duties, supervision responsibilities, level of experience and qualifications are all important when searching for the right candidate.

[83] As regards the NMBA’s Decision-making framework for nursing and midwifery (2020) (DMF), and the NMBA Registered Nurses Standards for Practice (Standards), Mr Murphy submits that these documents are highly general and contain overarching principles and statements that apply to all nurses. While Mr Murphy agrees that they are relevant as general statements of principle relevant to clinical decision-making, he asserts that neither of them say anything about mental health nursing. Mr Murphy does not consider that the Mental Health Agreement is in conflict with them but rather, they are different documents and serve different purposes.

[84] Mr Murphy states that not every issue that comes up in the course of his work can be answered by reference to general principles about clinical decision-making, and not every issue that comes up is concerned with clinical decision-making. He asserts that in his 40 years of experience as a mental health nurse, he has never had anyone tell him to look at the NMBA practice guidelines to ascertain the duties and responsibilities attached to his specific role as a mental health nurse. Mr Murphy says that the Mental Health Agreement has always been used by management, and by him, as the reference point to determine the applicable duties and responsibilities for the particular role. Further, he says the Mental Health Agreement relevantly focuses on the clinical issues and assists him in defining the scope of his practice. He says that if he was asked to take on an advanced level of responsibility that was outside of his scope of practice according to the Mental Health Agreement, he would have a basis to refuse to perform the task. That said, Mr Murphy acknowledged that the Mental Health Agreement is not part of the regulatory scheme which applies to his professional obligations as a registered nurse. 15

2.6 Bridget Hamilton (HSU Witness)

[85] Ms Bridget Hamilton is an Associate Professor of Mental Health Nursing and Director of the Centre for Psychiatric Nursing in the Faculty of Medicine, Dentistry and Health Sciences at the University of Melbourne. Additionally, she is employed one half day per week at St Vincent’s Mental Health Services as a Clinical Nurse Consultant. Ms Hamilton is also a member of HACSU. Ms Hamilton says her move into a research-based academic career whilst also maintaining a clinical practice is quite common in health disciplines.

[86] Ms Hamilton describes the Centre at which she works as being a clinical academic centre, tasked with progressing mental health nursing practice in Victoria through research and workforce development and consultation. It is significantly aligned with the Office of the Chief Mental Health Nurse.

[87] Ms Hamilton is also employed by St Vincent Hospital as a Clinical Nurse Consultant in the Mental Health department, for which her employment is covered by the Mental Health Agreement classified at RPN5. On one day a week she performs clinical work, provides advanced practice supervision to clinicians, and fosters research in the mental health nursing space within the clinical education team in the acute inpatient service.

[88] Ms Hamilton explains that mental health services are provided by designated mental health services, which while prescribed hospitals or health services under the Mental Health Act, are essentially the “mental health” division within the health service. Designated mental health services may be further divided into “area mental health services”, although she notes that this will arise from internal administrative arrangements and is not part of the statutory scheme. Ms Hamilton says mental health services have a separate administrative and managerial structure from the health service and there is often, although not always, a Director of Mental Health Nursing. She says that the Director may or may not be on the executive of the hospital but will have their own separate organisation structure from the other departments within the health service.

[89] In describing the delegated authority under the Mental Health Act, Ms Hamilton refers to how the powers in the Mental Health Act flow from the Chief Psychiatrist to the authorised psychiatrist in a designated mental health service to a mental health nurse on the ground in a ward. The coercive and restrictive interventions under the Mental Health Act are used in acute inpatient units, secure extended care units and other places which are bed-based and can only be authorised by the authorised psychiatrist, although the Mental Health Act provides that the senior registered nurse on duty may authorise seclusion or bodily restraint (restrictive interventions) if the authorised psychiatrist is not immediately available. This must also be immediately reported to the authorised psychiatrist, who must then examine the person and determine if the restrictive intervention continues to be necessary. The authorised psychiatrist must then report the use of all restrictive interventions to the Chief Psychiatrist in order to provide reliable data and accounts of the use of restrictive practices in designated mental health services. Ms Hamilton remarks that in this way, the Mental Health Act mandates that the authorised psychiatrist maintain clinical oversight of, and ultimate responsibility for, any treatment decisions made by a mental health nurse.

[90] By contrast, EDs may have a Behavioural Assessment Room (BAR), which is a locked room, or similar facilities that are not covered by the Mental Health Act and where common law duties of care are owed to the patient. Ms Hamilton comments that the restrictions of the patient in such settings are not governed by the same law and the practices are not reportable or reviewable in the same manner as restrictive practices under the Mental Health Act. Ms Hamilton remarks that the controversy and human rights challenges around restrictive interventions are not part of the knowledge and practice of ED nurses. She observes that the restriction rates are on the rise in EDs, whilst they are on the decline in mental health specialist areas. Ms Hamilton also gave evidence regarding restraint technique training and practice and her view as to how these differ between general nursing and mental health nursing.

[91] Ms Hamilton asserts that it is absolutely necessary to have mental health nursing continue to be recognised as a real area of specialisation and that it is essential to maintain an identity of mental health nursing as a substantially different specialisation. She considers the difference between general nursing and mental health nursing as being equivalent to the difference between nursing and midwifery. Ms Hamilton does not consider that the three-year Nursing Bachelor program adequately prepares someone as an entry level mental health nurse.

[92] Ms Hamilton contends that patient and consumer care become a very biomedical set of assumptions such that patients are at risk of being corralled in an in-patient ward, waiting for medication to work. She says that patients in this setting are deprived of treatment models that focus on some of the more holistic considerations around assisting people to have agency in their life as well as to acknowledge and treat causal issues like trauma, abuse experiences, etc. Essentially, she believes that the principles of good psychiatric practice can fall away and become second to mainstream medical treatment. Ms Hamilton believes that mental health nursing work can be misconstrued by colleagues from the other biomedical fields with the result that mental health nurses are pressured to focus on treatment adherence first and relational and therapeutic interventions later, or not at all.

[93] Ms Hamilton considers psychiatric/mental health nursing is an underdeveloped practice and intellectual space in many services as a result of mainstreaming and that the deskilling and de-specialisation of mental health practice has become a very poor consequence of the process. She proffers that if mental health nurses lost coverage of the Mental Health Agreement, there would be lack of clarity for those nurses around the development and opportunity to use their specialist skills. Ms Hamilton contends that the Mental Health Agreement supports the notion that mental health nursing is a specialist field and losing that specialisation will undermine recruitment.

2.7 Daniel Darmanin (HSU Witness)

[94] Mr Daniel Darmanin is employed as a Clinical Nurse Consultant at the Royal Children’s Hospital in the Banksia Ward, which provides specialist mental health services to young people aged between 13 and 18 years old. He is employed under the Mental Health Agreement as a RPN5.1. He is also a member of HACSU and a HACSU workplace delegate. He describes the Banksia Ward as being a specialist mental health ward within the Royal Children’s Hospital, where patients can only be referred by a mental health practitioner such as a psychologist or from within the hospital (for example, the ED or a general ward).

[95] The Banksia Ward is staffed by five nurses on the morning shift, five nurses on the afternoon shift and four nurses on the night shift. Mr Darmanin says that the staffing levels cater for up to one “special nurse”, that is a nurse providing 1:1 nursing with a patient of higher risk or one nurse in the intensive care unit within the ward. All registered nurses employed in the Banksia Ward are either a Registered Psychiatric Nurse or are training to be one. Trainees are often undertaking their graduate year and are employed on one-year contracts with the expectation that they will undertake a postgraduate degree in mental health upon completion. No general nurses are employed in the ward. He asserts that while the Banksia Ward is clinically supervised by the consultant psychiatrist, all the staff have a role to play in treatment planning, risk mitigation and risk cognisance. There is a clear expectation that mental health nurses are undertaking and taking responsibility for risk assessments.

[96] Mr Darmanin described the clinical component of his role and considers that a postgraduate qualification in mental health nursing is essential to the performance of the role of Registered Psychiatric Nurse. He comments that mental health clinical practice is not necessarily something that is innate in people, even nurses. He maintains skills such as de-escalation, performing risk assessments and prescribing appropriate medications are specialist skills that need to be learned and developed through training and practice. Mr Darmanin suggests a nurse with postgraduate clinical qualifications in mental health nursing can provide a better level of care to patients than one who does not hold these qualifications. Mr Darmanin also observes that the need to reduce restrictive and coercive practices is reinforced on a daily basis in mental health nursing and asserts that mental health clinicians with that training are less coercive and always work to avoid restrictive interventions. Mr Darmanin occasionally performs shifts in the ED at the Royal Children’s Hospital. He says that there are two mental health clinicians from the multidisciplinary team who work in the ED.

[97] Mr Darmanin considers that a de-escalation skill set is something that delineates the difference between general and mental health nurses such that mental health nurses are often the ones who lead consumer de-escalation, regardless of the clinical setting. He says that the Mental Health Agreement is an important source of information for the functions, duties and responsibilities of mental health nurses and that the expectations of nurses at different grades is something that needs to be clearly delineated. Mr Darmanin regards this as a very useful document for junior staff to understand how the classifications and positions inter-relate at an operational level, as well as how to move through the classifications. Mr Darmanin says that it is critical that mental health nurses have the clear elucidation of what is expected and from whom as set out in the Mental Health Agreement because if the roles and responsibilities are not clearly spelled out then employers can further dilute roles and place more expectations on clinicians practising at any level.

[98] Mr Darmanin acknowledges that the Mental Health Agreement does not contain information about the clinical decision-making framework and while he agrees that the NMBA’s DMF is concerned with clinical decision-making and that it and the DMF Standards are relevant to nurses’ scope of practice, he submits that these documents are very ‘high level’ and that neither of them, nor the NMBA’s “registration standards, codes, guidelines and professional practice frameworks” are concerned with the detail of operational matters pertaining to mental health nursing.

2.8 Peter Crowe (HSU Witness)

[99] Mr Peter Crowe is a registered psychiatric nurse, employed by Monash Health at Dandenong Hospital as a senior clinician in the Crisis Assessment and Treatment Team (CAT team). He is employed under the Mental Health Agreement and is classified as a RPN3. He is also a member of HACSU and is the HACSU delegate for the Dandenong CAT team. Mr Crowe says he currently performs the roles of mental health clinician in the CAT team and mental health clinician in the EPS within the ED. He also performed work as a mental health clinician in the Police, Ambulance and Clinical Early Response (PACER) team at Monash in 2019. Mr Crowe typically works three days in the ED and two days in the CAT team per week when rostered on the day shift.

[100] Mr Crowe says the CAT team has a physical building located near the mental health wards at Dandenong Hospital, and is part of the Mental Health Precinct in Dandenong. Despite having a physical premises, Mr Crowe says that the work of the CAT team is predominantly performed in the community by seeing patients in their homes or wherever required, as there is an understanding that a less restrictive treatment option is preferable such that it is better to treat people in their own environment in the community. The CAT team also does patient outreach whereby they can assess a person in their home environment, which can avoid the scenarios in which a person finds the hospital environment very uncomfortable.

[101] As a mental health clinician in the CAT team, Mr Crowe assesses whether the person he is seeing requires treatment in a hospital setting. If he thinks hospitalisation is required, he will initiate a “direct admission” to the inpatient mental health ward by calling the “Bed Manager” who will advise whether there is capacity to admit a patient. This process is used, he says, in circumstances where hospitalisation is required and the person is happy to come into hospital. However, Mr Crowe remarks that direct admissions are quite rare due to the wards usually being full. Where this is the case, the patient will be admitted into the ED, after which EPS will manage their care until a bed becomes available and the patient can be moved to an inpatient unit.

[102] When working the night shift, Mr Crowe works the whole shift in the EPS in the ED, during which he is classified as a RPN4 under the Mental Health Agreement. The EPS is also known as the ECATT in other hospitals. He describes the role of the mental health nurse as involving assessing mental health presentations to the ED and mapping out the most appropriate pathway of support. Mr Crowe says he reports operationally to the senior medical officer in the ED and clinically to the Mental Health team. The EPS team at Monash Health is a multidisciplinary team comprising people with experience in community mental health including psychologists, mental health nurses, social workers and occupational therapists. The leader of the team is a consultant psychiatrist who works exclusively in the EPS team four days a week. Additionally, the EPS has two psychiatric registrars that work half days, Monday to Friday. At Dandenong Hospital, the EPS team works out of a small office with an adjoining room used for conducting mental health assessments. This area is centrally located in the ED with easy access for the medical team.

[103] As to the treatment of patients by the EPS team, Mr Crowe details that patients who present at the ED are first registered by a ward clerk and are then seen by a triage nurse, who is a general nurse and not a mental health nurse. The triage nurse will then determine whether there is a role for the mental health team in the assessment and treatment of the patient. Mr Crowe says it is the mental health clinician’s role to advocate with general medical staff to ensure that their medical concerns are properly addressed. In Mr Crowe’s experience, he has not observed non-mental health nurses invoke or apply the Mental Health Act.

[104] When the EPS team receives a referral, Mr Crowe says that clinicians will check CMI, the state-wide database for mental health patients, as well as the hospital’s systems to see if the patient has previously presented with a mental health issue. Mr Crowe says that if the patient is not grossly intoxicated and are able to be assessed, he will meet and assess them in the room adjoining the EPS office or the cubicle in the ED. The assessment also involves mapping out a pathway of support for the patient and Mr Crowe remarks that it is his responsibility to assess, determine and then provide the most appropriate pathway, which includes:

•  Using one of the powers under the Mental Health Act to admit the patient, if they do not have any insight that they are psychotic or unwell;

•  Assessing whether the person has a mood disorder, is manic or whether they are simply displaying bad behaviour that is not a mental health issue, for example intoxication;

•  Referring the patient back to a general practitioner for support and making a recommendation for a mental health care plan to be developed and followed up by a psychologist; and

•  Arranging for the person to be treated in the community by the community team, the CAT team or the mental health hospital and home team. Mr Crowe says that he always tries to explore this option.

[105] For more complex patients, Mr Crowe says that he can seek further guidance and direction from the consultant psychiatrist on day shift and an on-call psychiatrist, if after-hours.

[106] Mr Crowe says that the EPS team are the “go-to” people when an outburst of inappropriate behaviour occurs. For example, the EPS team is expected to attend a Code Grey, a call to assist with the de-escalation of verbal or physical violence or aggression. In these situations, the EPS team gives direction around how to best support the patient and the ED by identifying the person’s needs, making recommendations around medication and advising whether a more restrictive form of containment is warranted. Mr Crowe says that it also involves assessing whether there is an acute risk if the patient wishes to leave the hospital as the doctor and nursing team hand over this responsibility to the EPS team.

[107] Mr Crowe suggests that mental health nurses need a unique set of skills involving mental health assessment and recognising the supports that need to be put in place so people can live their lives fully. He comments that if mental health nurses do not advocate for patients in the ED, these people may stay out in the waiting room all night whilst waiting for a bed. He argues that mental health patients would not have their mental health needs attended to appropriately if it were not for mental health clinicians advocating for them.

[108] Mr Crowe believes that if mental health nurses were covered by the Nurses Agreement, their specialisation would not be recognised and that without the support of a dedicated industrial agreement with detailed prescriptions of the roles and responsibilities of mental health nurses, their pay and conditions would suffer. He maintains the specialist skills of a mental health nurse are not comparable to other nurse specialisations because they are trained and empowered to use specialised skills under the Mental Health Act.

2.9 Paul Gilbert (ANMF Witness)

[109] Mr Paul Gilbert is the Assistant Secretary of the Victorian Branch of the ANMF. He has worked for the ANMF on a full time basis since 1991. Prior to that he worked as an enrolled nurse in Victoria and Queensland.

[110] Mr Gilbert gives evidence in relation to the history of industrial regulation of nurses working in public hospitals and other public health services outside mental health.

[111] In relation to the history, Mr Gilbert says:

•  The distinction between award regulated nurses and psychiatric nurses (and others) regulated by Public Service Board (PSB) Determination and Public Service Regulations prior to the mainstreaming of public psychiatric services “informed the shape of subsequent industrial instruments.” He points to the work standards in the current Mental Health Agreement and says that these are “substantially derived from PSB conditions of employment applying to State government employees in the 1990s.”

•  The Health and Community Services (Nursing Health Care and Associated Groups) Interim Award 1994 (1994 Interim Award) preserved the existing terms and conditions of employment of State Government employed staff engaged under PSB determinations.

•  The effect of the decision in Health Services Union of Australia v North Eastern Health Care Network 16 was:

•  Mental health awards that applied to the Crown and Crown employees formally employed in the public service and engaged in mainstreamed mental health services under s.97 of the Mental Health Act 1986 (Vic) now covered public hospitals as employers to whom mainstreamed mental health services had transmitted;

•  The 1992 Nurses Award continued to apply to all Registered Nurses and Enrolled Nurses in the public sector including mainstreamed mental health services;

•  Both the 1992 Award and the 1995 HACSU Award applied to mainstreamed services.

•  The agreement dated 26 November 1997 proceeded on the basis that there would be a separate agreement regulating terms and conditions of employment of all employees engaged in the provision of “psychiatric/mental health services in the public sector” and not just mental health nurses. 17 The HSUA’s amended application for demarcation orders and the agreement dated 26 November 1997 proceeded on the basis that “mental health services” was a reference to organisationally distinct services transferred as a result of the mainstreaming policy and not centred on the occupational duties of mental health nurses.18

[112] Mr Gilbert says that the Mental Health Agreement, like its predecessors applies to employees “employed by an employer engaged solely or predominantly in the provision of Mental Health Services in a classification/occupation in the Agreement” and the Nurses Agreement excludes nurses engaged solely or predominantly in the provision of public mental health services.

[113] Mr Gilbert agrees that the Mental Health Act provides for the appointment of a chief psychiatrist whose role is to provide clinical leadership and expert clinical advice to mental health service providers in Victoria. He was also aware that the Mental Health Act requires the appointment of an authorised psychiatrist in each designated health service who is responsible for the approval and reporting of various things. He says, however, that the Mental Health Act does not impose an organisational structure. Mr Gilbert also said that not all mental health treatment is necessarily covered by the Mental Health Act. He says that:

The Mental Health Act contemplates people with mental health problems being cared for in a variety of sectors, not all of them being designated mental health services, but it does restrict certain things from happening unless they happen in a designated mental health service. 19

[114] Mr Gilbert’s evidence is that he understood “Mental Health Services” and “public mental health services” as being a reference to the organisationally and operationally distinct mental health services delivered by employers covered by the Mental Health Agreement. His evidence is that this aligns with the history of industrial coverage of organisationally and operationally distinct mental health services.

[115] Mr Gilbert says that the terms “services”, “departments”, “units” or “programs” are organisational terms commonly understood within a hospital or health service setting. In terms of their use in the context of the changes proposed in the Replacement Nurses Agreement he said that the terms must be read in the context of the whole sentence. He said that “it’s a question of whether the service, department, unit or program is part of the mental health program” 20 and this is clear in the example given.21

[116] The Mental Health Agreement, like its predecessors does not apply only to mental health nurses, rather it operates as an industry agreement which covers specific workplaces engaged solely or predominantly in the provision of Mental Health Services operated by the relevant employer. Mr Gilbert said that the Mental Health Agreement does not extend coverage to mental health nurses generally but only to those employed solely or predominantly in the provision of Mental Health Services.

[117] Mr Gilbert’s evidence is that, prior to 2010 and the national registration of nurses, Victorian nurses and midwives registration was controlled by the Nurses Board of Victoria which had five Divisions including Registered Nurses, Enrolled Nurses and Registered Psychiatric Nurses. An Enrolled Nurse could undertake further mental health post-registration training and could refer to themselves as Psychiatric Enrolled Nurses. Mr Gilbert says the Mental Health Agreement retains the Registered Psychiatric Nurse and Psychiatric Enrolled Nurse language for the purposes of industrial classification only.

[118] Mr Gilbert says that in the Victorian private sector, to the best of his knowledge, mental health services are delivered by nurses employed under enterprise agreements which contain, by and large the same classifications as those in the Nurses Agreement.

[119] Mr Gilbert says that the purpose of the proposed clarification to the coverage of the Mental Health Agreement and the Nurses Agreement is to “make clear that nurses working within the ED Hubs” would be covered by the Nurses Agreement “because an ED Hub is not an organisationally distinct “mental health service” and because nurses working in public hospital EDs have previously been, and are currently, covered” by the Nurses Agreement. 22

[120] Of the ED Hubs Mr Gilbert says:

•  They are aimed at treating patients who require urgent medical attention and have an acute drug and alcohol comorbidity, are mental health patients with high acuity presenting with “suicidal ideation” following self-harm or present with drug and alcohol dependence; 23

•  They are not for patients who have high risk medical instability or require acute or complex care, have an organic disease or brain injury, are exhibiting behavioural concerns where a behavioural assessment room might be available or are under 16 years of age; 24

•  The DHHS Guidelines provide that it is integrated service delivered by the ED, mental health and AOD clinicians;

•  They will provide a non-admitted service in a dedicated space within the ED;

•  They perform an emergency function and will provide emergency care with nurses with “specialty knowledge in AOD and…mental health required;” 25

•  The ED Hub nursing staff will be answerable to the ED Nurse Unit Manager.

[121] Mr Gilbert gave evidence that the ANMF had been involved in the development of the Guidelines for the ED Hubs including the inclusion of clause 7.1 in the DHHS Guidelines which includes reference to the industrial awards and agreement that “may” apply to ED Hub staff. He agreed that the position of the ANMF in discussions on the DHHS Guidelines was to ensure that registered nurses working in the ED Hub would be covered by the Nurses Agreement.

[122] Mr Gilbert says that coverage of nurses working in the ED Hubs by the Replacement Nurses Agreement will be consistent with current coverage of ED nurses in public hospitals.

[123] Mr Gilbert gave evidence that, in relation to bargaining for the Replacement Nurses Agreement, one of the claims put forward by the ANMF was to delete, where they appear in the existing clause 4, the words ‘but excludes a person employed solely or predominantly in the provision of public mental health services’ He says this claim was made in the context of a “developing dispute with the HSU regarding the coverage of nurses in ED Hubs.” 26

[124] Mr Gilbert is aware that Mr Healey contacted Ms Fitzpatrick and indicated his dissatisfaction with the change proposed by the ANMF and later emailed Ms Fitzpatrick raising concerns regarding the removal of the exclusion of mental health nurses. Ms Fitzpatrick responded to Mr Healey and indicated that the ANMF had amended its claim to reflect the status quo.

[125] A meeting was held between Ms Fitzpatrick, Ms Halse and Mr Gilbert of the ANMF and Mr Healey and Ms Kate Marshall of the HSU on 4 December 2019 at which the ANMF provided a copy of its proposed definitions clause of the Replacement Nurses Agreement. Mr Gilbert disputes that, at that meeting, Mrs Fitzpatrick “agreed to leave the coverage as it was under the Nurses Agreement” or that the HSU “did not need to participate in bargaining because nothing would be changing in the current agreement.” 27 For his part, Mr Healey disputes Mr Gilbert attended this meeting.

[126] On 13 December 2019 Mr Healey again wrote to Ms Fitzpatrick (copied to VHIA and DHHS), stating “the definition of Public Mental Health Services should not be added to the definition list” and, if it was not added, the HSU concerns would be satisfied. 28 Mr Gilbert is not aware of any response from the ANMF to that email. Mr Gilbert says that negotiations for the Replacement Nurses Agreement concluded on 31 March 2020 and it was signed by the ANMF on 22 April 2020 with the coverage clause as proposed by the ANMF and VHIA in the current proceedings.

[127] Mr Gilbert says that an exchange ensued between him and Ms Marshall of the HSU over the coverage clause. Ms Marshall claimed the HSU was not consulted on the proposal whilst Mr Gilbert is of the view that such consultation was not required but, in any event, the ANMF had raised clarification of coverage on several occasion but the HSU was not prepared to entertain clarification of the coverage. He says the HSU has not identified any concrete issues with the coverage clause as proposed and has not put forward any alternative means of resolving disagreements of coverage in the two proposed agreements.

[128] Following a meeting between the ANMF, VHIA and HSU on 7 May 2020 Mr Healey wrote to the ANMF and VHIA on 8 May 2020 and said, of the words added to the definitions in the Nurses Agreement:

“The underlined words place the focus on the service, department, unit, or program of the Employer rather than the duties of the individual employee. The duties are of the upmost importance. If a clinician is providing a role that is predominately or solely in the provision of a mental health service in any service – not just a Public Mental Health Service, they are providing work that is outlined in the MH EA.”

[129] Mr Gilbert says that the ANMF replied and contested the issue of coverage and on 13 May 2020 indicated a willingness to continue to negotiate in good faith in relation to the concerns of the HSU. Shortly after this the HSU made an application to the Commission pursuant to s 240 of the Act and also filed a scope order (having previously outlined its concerns).

2.10 Patricia O’Hara (ANMF Witness)

[130] Ms Patricia O’Hara was employed as a Professional Officer with the ANMF Victoria Branch from 2010 to 2019. In this role, Ms O’Hara provided nursing knowledge and advice to ANMF officials and staff. Since 2019 she has provided consulting work to the ANMF. She has extensive clinical experience as well as experience in senior nurse management and leadership positions in public and private hospitals.

[131] Ms O’Hara’s evidence is that, prior to 2010 Victorian Nurses and Midwives registration was controlled by the Nurses Board of Victoria and contained five Divisions:

(a) Division 1 – general registration as a registered nurse (RN);

(b) Division 2 – general registration as an enrolled nurse (EN);

(c) Division 3 – registration as a registered psychiatric nurse (RPN);

(d) Division 4 – registration as a “mental retardation” nurse;

(e) Division 5 – registration as a mothercraft nurse.

[132] In the mid-1990s Divisions 3,4 and 5 were closed to new entrants. Later Division 3 nurses were given Division 1 registration.

[133] Under the previous State system, Enrolled Nurses who undertook additional education could refer to themselves as Psychiatric State Enrolled Nurses and later as Psychiatric Enrolled Nurses. These titles are no longer recognised by the NMBA under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (National Law).

[134] Under the National Accreditation and Registration Scheme nurses are registered in Division 1 (registered nurses, nurse practitioners and registered nurses who are also midwives) or Division 2 (enrolled nurses and enrolled nurses (mothercraft)). The registration standards provide for specific endorsements on registration in relation to Nurse Practitioner, Registered Nurse – supply scheduled medicines (rural and isolated practice) and midwife – prescribe scheduled medicines.

[135] In July 2010 the NMBA made the decision not to proceed with the specialist registered nurse registration in specific areas of nursing and midwifery practice. While she said the rationale for this decision was that nurses and midwives develop knowledge and gain experience throughout their careers in different and specialised areas of nursing through further education, post-graduate courses and professional development across a range of areas of practice, Ms O’Hara acknowledged that she was not involved in the decision but said that at the time she was a professional officer of the ANMF and the knowledge she was given was that the NMBA would not register specific specialisations of nursing. 29

[136] Ms O’Hara says that under the National Law the NMBA:

•  develops the standards of practice, codes and guidelines which constitute the professional practice framework for all nurses and midwives. These establish the framework and requirements for professional safe practice;

•  defines the scope of practice based on education, authorisation and competence to practice.

[137] In relation to the NMBA’s DMF Ms O’Hara explained that it:

•  Provides statements of principles and guidelines which define an individual nurses/midwifes scope of practice and the decision making process regardless of further education;

•  Provides a guide to assist nurses and midwives in making nursing practice decisions;

•  Forms part of the NMBA’s professional, regulatory and legislative framework;

•  Establishes a foundation for decision making based on competence and provision of safe quality care; and

•  Is applicable in all practice settings and provides a consistent approach to decision making.

[138] Ms O’Hara also gave evidence in relation to the Standards. She says these replaced the Nurses Board of Victoria competency standards for registered nurses following the introduction of the National Law in 2010 and that there are seven standards, each of which has criteria on how it is demonstrated.

[139] Ms O’Hara said the Mental Health Agreement does not (and cannot) replace the statutory obligations or the Standards and these Standards are the guide to practice.

[140] Ms O’Hara said that there is no entry level qualification for mental health nursing. Registered Nurses, Enrolled Nurses and midwives begin with initial registration following completion of a bachelor degree 30 or diploma (Enrolled Nurse). She said that all Registered Nurses complete a mental health unit as part of their bachelor degree.

[141] Whilst Ms O’Hara maintains that the NMBA requires nurses to act in accordance with the DMF and, to this extent the terms of an enterprise agreement are not relevant to a nurse’s scope of practice, she acknowledged that the Mental Health Agreement does state at clause 99.11(f) that further qualifications and experience for Registered Psychiatric Nurse grades one and two is not mandatory, for a Registered Psychiatric Nurse grade three it is stated that it is desirable that an employee hold a post-graduate diploma in psychiatric or mental health nursing or equivalent and all Registered Psychiatric Nurse grade four appointments must have completed either a post-graduate diploma in psychiatric nursing or a specialist undergraduate psychiatric nursing program or similar. Ms O’Hara sought to offer an explanation that these requirements were from 1 July 2005 and predated the national laws that commenced in 2010 and provide that the title of Registered Psychiatric Nurse is no longer part of the registration of a registered nurse. 31

[142] Ms O’Hara says that as a general rule there are no specialty-based registrations or endorsements in nursing although some areas of nursing see Registered Nurses undertake post-registration qualifications and some employers may require it. She says this is not limited to mental health nursing and includes other sub-specialties. Ms O’Hara proffers that most critical care nurses will have undertaken a post-registration tertiary critical care course, and identify themselves as critical care nurses, but there is no obligation to undertake such additional education. She says there is no specialist registration and while they identify as critical care nurses, they have no specific enterprise agreement and are covered by the same agreement as nurses who specialise in gerontology, renal, palliative care, emergency, oncology etc. Ms O’Hara asserts that none of these specialists rely on the coverage of a particular enterprise agreement for their professional identity.

[143] Ms O’Hara contests Ms Gallaher’s evidence that she would lose recognition of her specialist skills if she was covered by the Nurses Agreement. She says that the NMBA defines a scope of practice and competence to practice, the DMF must be used in all practice setting and it “provides a consistent approach to decision about nursing or midwifery practice…” 32 She says the DMF and the Standards provide the framework under which specialist skills are recognised and utilised. Her broad position is that under the statutory, regulatory and legislative framework, the DMF and the Standards (not an industrial instrument) determine the scope of practice and all decision-making that guide nursing practice decisions and guide delegation decisions.

[144] Ms O’Hara also disagrees with a similar statement from Mr Crowe. Ms O’Hara says that Registered Nurses covered by the Nurses Agreement commonly have specialist skills including intensive care, coronary care, operating theatre, palliative care, gerontology, Diabetes, infection control and so on. She says all of these nurses are recognised for their specialist skills and do not rely on an industrial agreement for such recognition.

[145] On Ms Hamilton’s claim that mental health nursing has some fundamental requirements different to the “mainly biomedical and secondary psychosocial considerations in other disciplines” Ms O’Hara says while it is important to acknowledge that mental health nurses have a scope of practice, knowledge and expertise that is specific to this specialisation of nursing, all Registered Nurses undertake study in a broad range of health and nursing topics, including units of study in mental health, that underpin the scope of knowledge and skills that is acquired in the undergraduate degree. Further, Ms O’Hara asserts the NMBA recognises that all Registered Nurses have foundational nursing knowledge and skills and it is for that reason that the Standards are of broad application and provide the framework for safe evidenced based nursing practice.

[146] It is the opinion of Ms O’Hara that decisions about scope of practice should be based on considerations of:

(a) The person, client, patient or woman’s health status and any relevant social determinants to their healthcare;

(b) lawfulness (legislation and common law);

(c) compliance with evidence, professional standards, regulatory standards, policies and guidelines (for example, the DMF);

(d) context of practice and the health service provider/employer’s policies and protocols; and

(e) whether there is organisation support, sufficient staffing levels and appropriate skills mix for practice.

2.11 Andrew Morgan (ANMF Witness)

[147] Mr Andrew Morgan is a Registered Nurse employed by Eastern Health in its Mental Health Program. He has practised in the area of mental health, firstly as an RPN and then Registered Nurse, for about 30 years. He has occupied his current position as a senior Registered Nurse in the Mental Health Program for 15 years, predominantly in Adult Access and the Emergency Department Mental Health Response part of the service at Box Hill Hospital. Adult Access is part of the Eastern Health Mental Health Program. It incorporates Psychiatric Triage and Emergency Department Mental Health Response). The Mental Health Response program is a designated mental health service under the Mental Health Act and is a service provided to the ED. 33

[148] Mr Morgan says that in his experience a Registered Nurse can work in most mental health settings although some Registered Nurses hold specialist qualifications. He said that working as a mental health nurse does not require the possession of specialist qualifications. Specialist qualifications are required for levels above an RPN 3 under the Mental Health Agreement and are desirable at RPN 3 level. He said that in his experience Registered Nurses without specialist qualifications are employed under the Mental Health Agreement at RPN 1-3 at in-patient mental health units and at RPN 3 in continuing care clinics and CAT-type teams.

[149] Mr Morgan says that EDs serve as a gateway to care as an admitted patient to hospital or to other specialised care services. In his experience he says that EDs are a significant point of first contact for patients with AOD or mental health symptoms. He said that specialist AOD and mental health services operate independently of one another and to the ED, while maintaining care coordination.

[150] Mr Morgan gives evidence that specific funding for mental health support was increased 10-15 years ago due to increasing demand and that enhanced CAT team and ECATT funding was provided for acute clinical mental health providing consultative services to EDs to improve service delivery. Mr Morgan said that the ED Mental Health Response team in which he works utilises this funding and is staffed by a team of mental health professions.

[151] Mr Morgan says that the Emergency Department Mental Health Response team at Box Hill is the local name for an ECATT and performs the same function as the Emergency Mental Health team at Sunshine Hospital and the Emergency Psychiatric Service at Dandenong.

[152] On the basis of the 2009 Guidelines for the Victorian Emergency Care Coordination Program 34 Mr Morgan says that:

•  EDs serve as a gateway to care as an admitted patient;

•  In his experience EDs have traditionally been a significant point of first contact for patients with AOD or other mental health symptoms;

•  Specialist AOD and mental health services operate independently of each other and it is not uncommon for a patient presenting to an ED to have symptoms requiring medical, AOD and mental health interventions;

•  Specific funding for mental health support to EDs was increased 10-15 years ago due to increased demand. The Mental Health Response team that he works in uses this funding and is staffed by a team of mental health professionals employed under the Mental Health Agreement.

•  The ED Mental Health Response Team at Box Hill is the local name for the ECATT and performs the same role as the Emergency Mental Health team at Sunshine Hospital as described in the statement of Ms Rebis and the Emergency Psychiatric Service at Dandenong as described in the statement of Mr Crowe.

•  The ED Mental Health Response at Box Hill provides primary consultation (ie assessment of patients) and secondary consultation (advice to ED staff). It might also provide advice on a “clinical pathway” such as admission although the patient remains the clinical responsibility of the ED until admitted to another part of the hospital. Whilst the ED Triage Nurse or Associate Nurse Unit Manager (ANUM) or the ED doctor may refer to the ED Mental Health Response team for consultation, the Emergency Department Mental Health Response team remains organisationally separate from the ED.

[153] Mr Morgan also explains that funding has increased in recent years for AOD services. At Eastern Health AOD staff are present to consult to the ED on a similar basis to that of the staff in the Mental Health Response team. The AOD service nurses are employed under the Nurses Agreement.

[154] Mr Morgan says that decisions as to who should clinically assess certain patients or how patients with AOD or mental health issues should be managed in the ED are complex. To his knowledge there is no contemporary data on the extent to which ED clinicians treat patients triaged with AOD or mental health issues but on his observations he estimates that 20-25% of patients presenting to the ED with AOD or mental health concerns are not provided with primary or secondary consultation with AOD or Mental Health Response specialist staff.

[155] Mr Morgan explains that “short stay beds” (less than 24 hours) are available for patients and that these beds are part of the EDs. At Box Hill hospital where he works those with transient acute AOD or mental health concerns are admitted directly to the short stay beds for 24 hours while their condition improves. Such patients are “frequently” provided with primary or secondary consultation from AOD, ED Mental Health Response or ED Social Work or Care Coordinators. He said that the May 2017 DHHS “Guidelines for ED short term stays” 35 indicate that the ED director or ED Nurse Unit Manager are responsible for the clinical and operational management of the ED short say beds.

[156] On his review of the DHHS Guidelines concerning the establishment of ED hubs Mr Morgan understands that the proposed hubs will operate in the same way as the ED short stay beds. He said the hubs are intended to “provide brief (up to 24 hours) intervention and treatment and remain the clinical responsibility of the EDs. Further he understands that specialised mental health programs (such as ECATT) would not have clinical responsibility for the patient.

[157] Mr Morgan says that the Mental Health Program at Eastern Health has a PAPU next to Maroondah Hospital. He has consulted to the Maroondah PAPU but not worked in the PAPU. 36 He says a PAPU is a separate in-patient unit often next to, but not part of, an ED. He understands that most health networks have a PAPU managed by a Mental Health Program or health network. They provide 72-hour admission for those with an acute phase of mental illness or at acute risk of harm. The nursing staff in PAPUs are RNs working under the Mental Health Agreement. He said that in his experience a “significant number” of RPNs have no specialist mental health nursing qualifications.

2.12 Kim Sykes (ANMF Witness)

[158] Ms Kim Sykes is employed by the ANMF Victorian Branch as Education Manager of its Education Centre. She qualified as a psychiatric nurse in South Australia in 1978 and has worked in both health administration roles and in nursing positions over her career, primarily in Victoria.

[159] Ms Sykes gave evidence in relation to the history of the provision of mental health services in Victoria, the deinstitutionalisation and the mainstreaming of such services and employment arrangements prior to and post mainstreaming. At the time of the deinstitutionalisation Ms Sykes was the Acute Program Manager at Southern Psychiatric and Chemical Dependency Services and later was its Director of Nursing. In this role she contributed to plans for mainstreaming at Monash Medical Centre, Alfred Hospital and Kingston Health.

[160] Ms Sykes says that, at the time of mainstreaming, Monash Medical Centre was already providing mental health services and that these were not subject to Public Service Act employment or s 97 arrangements, The industrial arrangements for these services were consistent with the rest of services in the public hospital. Staff employed in the discrete mainstreamed mental health services at the Monash Medical Centre were employed under the s 97 Mental Health Act 1986 (Vic) arrangements and other staff providing mental health services were initially employed under the relevant Award.

[161] Ms Sykes says that around the time of mainstreaming, the State Government also introduced a third policy initiative involving the devolution of service delivery. Under this policy responsibility for mental health policy and regulation was retained by government departments but responsibility for programs and service delivery was outsourced or contracted out. She said that funding, service agreements and other arrangements shaped the structure of mainstreamed health services so the mainstreamed mental health services retained discrete identities under the arrangements between hospitals and the Department.

[162] Ms Sykes said that health services generally adopt different structures for the organisation of their services. In her experience mental health services are generally organised as separate programs. She said that mental health programs generally include both community and acute services. A (further) reason from the discrete organisational structures applying to mental health were the funding arrangements, with case-mix finding not including mental health and the block funding arrangements that applied from the time of mainstreaming continuing.

[163] Ms Sykes gave evidence that a Registered Nurse’s scope of practice is regulated by:

•  National Law

•  Educational requirements for registration as a nurse determined by the National Law;

•  Educational attainment and competencies;

•  Decision-making framework approved by the NMBA;

•  Standards approved by the NMBA.

[164] Whilst acknowledging the importance of a strong mental health nursing identity, Ms Sykes takes issue with the opinions expressed by a number of witnesses for the HSU that this is achieved through the Mental Health Agreement. Ms Sykes argues there is a distinction between a classification description for the purposes of appointment and remuneration and the standards of knowledge, skills and processes relating to clinical judgement and professional obligations of mental health (and other) nurses.

[165] Ms Sykes further asserts that specialisation in nursing is achieved through post-registration education and experience consistent with a nurse’s scope of practice as determined under the regulatory arrangements applying to Registered Nurses, not by reference to an enterprise agreement.

2.13 Tim Nagle (VHIA Witness)

[166] Mr Tim Nagle is employed in the role of Manager, Workplace Relations, Services with the VHIA, a role he has held since late 2016. As part of his role, Mr Nagle was involved in negotiating the Nurses Agreement and the Mental Health Agreement with the ANMF and/or the HSU and has been engaged in negotiations for the proposed Replacement Agreements.

[167] Mr Nagle also gave an account that prior to “mainstreaming” in the 1990’s, mental health services were delivered by the State of Victoria principally through large psychiatric institutions and that as part of a national strategy towards deinstitutionalisation in the 1990’s, previous stand-alone institutions were closed with the goal of providing inpatient care in psychiatric wards co-located within public hospitals. In 1994, the Victorian government adopted a framework for “mainstreaming” mental health services within the public health sector.

[168] Mr Nagle described the grouping together of adult mental health services on a local area basis across Victoria (known as “area mental health services”) and their redistribution to public hospitals as part of the mainstreaming process.

[169] Mr Nagle described the transfer of responsibility for the management of area mental health services from the (then) Department of Health and Community Services to public hospitals and says that although these area mental health services were co-located within a public hospital, they remained organisationally and operationally distinct from the other services delivered by the public hospitals. As part of this process, these services were proclaimed as “approved mental health services” under the Mental Health Act 1986 (Vic).

[170] Mr Nagle confirmed that under s 97 of the Mental Health Act 1986 (Vic), public servants who transferred from the former State-run psychiatric institutions to public hospitals remained employees of the State, while new or promoted employees in the area of mental health services were initially engaged by the public hospitals under the Nurses (Victorian Health Services) Award 1992.

[171] Mr Nagle referred to the resolution of the demarcation dispute between the HSU and ANF on 26 November 1997 and says that certified agreements were subsequently made with each specific employer to whom mental health services were transmitted as part of the mainstreaming framework and who had each been proclaimed an “approved mental health service” under the Mental Health Act 1986 (Vic). These certified agreements were expressed to cover eligible members of the HSU (No 2 Branch) and/or the ANF (the predecessor to the ANMF) who were “engaged solely or substantially in the provision of psychiatric and/or mental health services in Victoria.”

[172] Subsequently, the Victorian Psychiatric Services Certified Agreement 2000-2004 was made and it covered a list of employers, each of which was previously covered by the 1997 agreements and had been proclaimed an “approved mental health service.” Each subsequent version of the Mental Health Agreement has contained a list of employers, which were approved mental health services or a “designated mental health service” under the Mental Health Act. The current Mental Health Agreement covers 17 employers, each of whom are “designated mental health services” under the Mental Health Act.

[173] Mr Nagle says that the reference to “mental health services” has remained in all coverage definitions contained in subsequent industrial instruments applying to nurses working in mental health services. Mr Nagle says that throughout that time, the separation between mental health services and the other services of the public hospitals has remained largely unchanged and the coverage of the Nurses Agreement and the Mental Health Agreement has been determined along organisational lines. During cross examination, Mr Nagle agreed that the reference to mental health services in the Mental Health Agreement was the same as the organisational structure in the designated mental health services, being unique in hospitals and health services. 37

[174] Mr Nagle says that this background supports a view that coverage is determined by reference to the organisational component through which the employee is employed. That is, Registered Nurses and Enrolled Nurses employed by a mental health service provided by one of the 17 designated mental health services are employed under the Mental Health Agreement and all other Registered Nurses and Enrolled Nurses are employed under the Nurses Agreement. Mr Nagle asserts that the witness statements filed by the HSU serve to reinforce that coverage under the Mental Health Agreement is determined by reference to the nature of the organisation through which the work is performed.

[175] It is Mr Nagle’s view that the HSU’s construction, which is based on the duties performed by the employees, is not consistent with the current application of the Nurses Agreement and the Mental Health Agreement in respect of employees performing mental health nursing duties in a mental health service not covered by the Mental Health Agreement. He provides an example of Corryong Health, which employs a registered nurse as a Mental Health Professional. Corryong Health is not a designated mental health service and therefore not an employer listed in Schedule 1 of the Mental Health Agreement. Accordingly, the employee employed in this position is currently covered by the Nurses Agreement because the position is not delivered through a mental health service. Mr Nagle says that if the HSU’s construction of coverage is accepted, this employee would be excluded from the Nurses Agreement (on the basis that the person performs mental health services on an individual level) but would also be excluded from the Mental Health Agreement (given Corryong Health is not covered by the Mental Health Agreement). 38

[176] While ED Hubs will be established within certain facilities, 39 Mr Nagle confirms they are not yet fully operational. He says that ED Hubs are intended to complement the existing mental health consulting service by focussing on particular ED presentations requiring ED level assessment, diagnosis and treatment. While the ED Hub still performs an emergency function, the ED Hub represents a new way of working to enhance ED responses and treatment for people that present with mental health and alcohol and other drug issues.

[177] Mr Nagle gave evidence that the proposed amendments to the wording of the coverage clauses make clear that, consistent with the historically accepted organisational approach to coverage, nurses working within an ED Hub are covered by the Nurses Agreement. Mr Nagle says that this is also consistent with the status quo, as nurses reporting within the ED structure have always been covered by the Nurses Agreement or its predecessor agreements.

[178] Mr Nagle says that the DHHS Guidelines envisage that the ED Hub will also provide care for patients presenting with AOD needs. Therefore, the model involves employment of nurses with mental health and/or AOD education and experience. 40 Nurses employed in AOD services not delivered by a mental health program are employed under the Nurses Agreement.

[179] Mr Nagle gave evidence that the employment of nurses with mental health or AOD education or experience within an ED Hub does not transform the ED Hub into a mental health service, let alone an AOD service. He says that the nurses are providing additional expertise to the ED Hub. Mr Nagle says that it is therefore appropriate that nurses employed in the ED Hub are covered by the same industrial instrument. Having regard to the overall function of the ED Hub as emergency function, Mr Nagle says that nurses are properly covered by the Nurses Agreement and not the Mental Health Agreement.

[180] Mr Nagle says that the current dispute has delayed the implementation of ED Hubs and claims this adversely affects patient outcomes. In Mr Nagle’s view, the proposed amendments to the coverage clauses reduces the risk of further disputation because the amended wording makes clear that coverage is determined by reference to the organisational component of the public health service through which the public mental health services are delivered.

[181] Mr Nagle says that the application of multiple enterprise agreements within an ED Hub risks engendering a demarcation culture between those covered by the Mental Health Agreement and those who are not. A practical consequence is that nurses covered by the Mental Health Agreement may be restricted by the classifications in clause 99. This may operate as an obstacle to the ED clinicians’ ability to direct staff to work flexibly across the ED Hub and broader Emergency Department, which is critical in an emergency setting.

[182] Further, Mr Nagle says that the HSU’s duties-based test will give rise to ambiguities and potential disputes regarding whether a change in the proportion of mental health duties to non-mental health duties (even within or between shifts) causes a change in coverage. In respect of the ED Hub, if a mental health nurse employed in an ED Hub is required to perform duties in the wider ED because there are a reduced number of patients presenting with mental health issues, there may be a question about whether that nurse is any longer covered by the Mental Health Agreement. By contrast, greater certainty is achieved by an organisational approach to construction because coverage is not vulnerable to the day-to-day changes in duties of an individual nurse and is determined by reference to the nature of the relevant service, unit, department or program, which does not ordinarily change on a regular basis.

[183] Contrary to HSU witness suggestions, 41 Mr Nagle argues that the prescriptive classifications in clause 99 do not confer specialist recognition or status for mental health nursing. Once employed within a particular classification, clause 99 may assist in defining the remuneration of a particular role but it does not, in itself, create or “protect”, mental health nursing positions. Nor does clause 99 provide a form of accreditation or registration for mental health nurses.

[184] Mr Nagle says that AHPRA is the national agency which sets the standards and policies that all registered nurse practitioners must meet. There is no specialist registration for Registered or Enrolled nurses with advanced qualifications or experience in mental health. Similarly, the Mental Health Act applies to registered nurses employed or engaged by a “designated mental health service.” There is no requirement under the Mental Health that a registered nurse have additional qualifications or training in mental health or identify as a Registered Psychiatric Nurse in order to administer powers and treatments set out in the Mental Health Act.

[185] Mr Nagle says that if the HSU’s construction was adopted and mental health nurses working in the ED Hub were covered by the Mental Health Agreement, none of the provisions of clause 91 would apply, contrary to the position expressed by HSU witness, Mr Healey. Mr Nagle says that there is therefore no apparent loss of “protection” if mental health nurses working in an ED Hub are covered by the Nurses Agreement.

[186] Mr Nagle says that it is desirable to maintain the mutual exclusivity between the two agreements. The ED Hubs were intended to be established in 2018-2019. The commencement of the operation of the ED Hubs have largely been put on hold until the resolution of this dispute regarding coverage. If the Commission finds that the proposed coverage definitions are appropriate, Mr Nagle says this will give certainty that the Nurses Agreement covers and applies to Registered Nurses and Enrolled Nurses employed in the ED Hub and the establishment of the ED Hubs will resume. 42 However, if the Commission answers the agreed questions in the negative, there will be continued ambiguity in respect of the meaning and application of the coverage clauses. This will inevitably further delay the establishment of the ED Hubs and result in the broader community being deprived of the intended benefits of these ED Hubs.43

[187] Mr Nagle filed a supplementary witness statement in which he provides responsive views to discrete aspects of the evidence relied upon by the HSU. Relevantly, as to HSU witness Ms Gallaher’s position and reporting line, Mr Nagle notes that the organisational chart 44 provides for multiple reporting lines, but the “hard” reporting line applies for operational purposes and determines the way in which the role is organised. Mr Nagle’s view is that Ms Gallaher’s role sits within the ED and not within the mental health program.

2.14 Stuart McCullough (VHIA Witness)

[188] Mr Stuart McCullough is employed as the Chief Executive Officer of the VHIA, a role he has held since 2016. His overview of the VHIA is that it represents the industrial interests of its members, being employers that are hospitals, health services and other institutions, and organisations engaged in the provision of health care in Victoria. All of VHIA’s members are covered by public health enterprise agreements, including the Nurses Agreement and the Mental Health Agreement.

[189] Mr McCullough says that the occupation-based Nurses Agreement covers approximately 50,000 nurses. Rather than being occupation based, the Mental Health Agreement covers a total of 17 employers and any employee classified under it. This includes not only nurses, but a range of other occupations including cleaners, maintenance workers, therapists, social workers and managers. The Mental Health Agreement covers approximately 4,000 nurses.

[190] Mr McCullough says that coverage under the Mental Health Agreement is well understood. Mr McCullough says that the VHIA is not seeking to abolish the Mental Health Agreement and accepts the evidence of the HSU witnesses that the following work is, and will continue to be, covered by the Mental Health Agreement: acute inpatient wards; 45 PARCs;46 forensic care;47 CAT teams;48 EPSs;49 mental health triage service;50 PAPUs;51 and PACER teams.52 Further, Mr McCullough says that consultation liaison nurses are appropriately covered by the Mental Health Agreement, but holds the view that and nurses who work in the AOD sector are covered by the Nurses Agreement.

[191] With respect to ED Hubs, Mr McCullough says that a controversy arises because s 7 of the DHHS Guidelines provides for the employment of specialist nursing expertise within the ED, such as mental health specialists and AOD specialists. Mr McCullough says that the term ED Hub is a reference not to the type of work undertaken within the Hub, but rather to the way in which the Hub is organised (through the ED). Mr McCullough’s view is that it would be appropriate and consistent with the status quo for any Hub organised through the ED to be captured by the Nurses Agreement, as EDs have never been treated as covered by the Mental Health Agreement or its predecessor agreements.

[192] Further, Mr McCullough considers that the HSU’s contention that coverage under the Mental Health Agreement is based on the duties performed by the employees is unworkable for the following reasons.

[193] First, Mr McCullough holds the view that duties-based coverage would be problematic for employers not covered by the Mental Health Agreement. Mr McCullough says that the 17 employers covered by the Mental Health Agreement are not the only health services who treat patients with mental health conditions. Rather, it is open for any employer to employ a nurse with specialist mental health qualifications should they have a demand for it. 53 If a duties-based construction were preferred, a nurse providing significant or exclusive care to a patient with a mental health condition would potentially be excluded from coverage under any enterprise agreement unless they were employed by a health service covered by the Mental Health Agreement.54

[194] Secondly, Mr McCullough says that a duties-based construction would be problematic for non-nursing staff currently covered by the Mental Health Agreement. This includes Health and Allied Services, such as cleaners, 55 and Allied Health Professionals, such as therapists56 and Management and Administrative employees.57 None of these categories of employees perform clinical “mental health duties.” If coverage under the Mental Health Agreement were based on duties rather than organisational structure, then these employees will no longer be covered by the Mental Health Agreement.

[195] Further, Mr McCullough considers that the HSU’s duties-based construction will lead to difficulties in determining what constitutes a mental health service. Mr McCullough says that it will become necessary to determine whether an employee’s duties are “solely or predominantly” in the provision of mental health services at any given time. Mr McCullough contends that it will be difficult (if not impossible) to determine the proportion of a nurse’s duties that are responsive to a patient’s mental health condition as there are is significant overlap between the duties of all nurses regardless of the area of practice. 58 Mr McCullough says that even if mental health duties can be separately quantified, the agreement does not contain a time period against which such assessments should be made, and will create a large administrative burden for human resources and payroll who will be required to understand an employee’s caseload at any given time.

[196] Mr McCullough says that a further difficulty with the HSU’s construction arises on account of the application of clause 91 of the Mental Health Agreement (this includes the appointment of a Registered Psychiatric Nurse – Nurse Unit Manager to wards or units that are not delivered by mental health services.) This would be unworkable in Mr McCullough’s view, where non-mental health services already have in place established reporting structures which do not align with the requirements of clause 91.

[197] Mr McCullough disagrees with the HSU’s view that:

(a) the amendments proposed to the Nurses Agreement and Mental Health Agreement change the status quo. Mr McCullough says that the proposed definitions of coverage are intended to clarify how the existing coverage provisions already operate (that is, that coverage under the Nurses Agreement and the Mental Health Agreement is based on the way that the work is organised and not on the duties or work performed by an individual employee) and make clear the application of the Nurses Agreement to nurses working in an ED Hub; and

(b) the classification descriptors in clause 99 of the Mental Health Agreement provide a significant benefit to employees. Mr McCullough says that the inflexible and outdated approach of these descriptors is recognised in the Mental Health Agreement itself which contains a requirement for the parties to modernise them 59 (although Mr Healey denies there have been the difficulties referred to by Mr McCullough).

[198] Mr McCullough was cross-examined on the use of the words “service, department, unit or program level” for the purpose of determining coverage under the respective agreements. Mr McCullough agreed that a service could be delivered through a unit and that a unit might be part of a department. 60 However, Mr McCullough did not accept that it was necessary for any one of these terms to take precedence over another where this an overlap. Rather, Mr McCullough’s evidence is that any service, if part of the “designated mental health service, if it is part of that organisationally distinct component,” would attract coverage under the Mental Health Agreement. When it was put to Mr McCullough that he did not apply that criterion to the position held by HSU witness, Ms Gallaher, Mr McCullough said that Ms Gallaher’s position description provides three reporting lines and of these, it was the operational line that was critical in determining coverage.

[199] Finally, Mr McCullough does not accept that the HSU was ambushed by the proposed changes to the Nurses Agreement. Mr McCullough relies upon various discussions and correspondence that passed between the parties between October 2019 and March 2020 in support of his position that the proposal to clarify the coverage clauses in the Nurses Agreement and the Mental Health Agreement were discussed during bargaining. 61

[200] Mr McCullough filed a supplementary witness statement in which he provides responsive views to discrete aspects of the evidence relied upon by the HSU. Mr McCullough says that coverage issues have previously arisen between the parties in respect of the Nurses Agreement and refers to the dispute involving the Barwon Health facility at Blakiston House that progressed to conciliation before the Commission. 62 For his part and as outlined above, Mr Healey disputes that the current definitions have caused confusion and disputation and says that he is unaware of any disputes or confusion during the 20 years that the current clauses have been used.

3. Submissions

[201] The questions for arbitration require us to determine whether the proposed definitions of coverage for both of the Replacement Agreements are appropriate having regard to seven agreed considerations. The submissions made by the parties in relation to each are set out in the paragraphs that follow.

3.1 Fairly Chosen

(a) whether the employees proposed to be covered by the Replacement Nurses Agreement are fairly chosen within the meaning of ‘fairly chosen’ as referred to in s 186(3A) of the Fair Work Act 2009 (Cth)

[202] The first criterion requires determination as to whether the employees proposed to be covered by the Replacement Nurses Agreement are fairly chosen within the meaning of that term in s 186(3A) of the Act, which relevantly provides:

“If the agreement does not cover all of the employees of the employer…covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”

[203] The HSU submits that deciding whether the employees proposed to be covered by the Replacement Nurses Agreement are fairly chosen requires identifying who those employees are, by reference to the terms of the Replacement Nurses Agreement. It submits this calls for an interpretation of the definition of ‘Registered Nurse’ in proposed clause 4.1(ii) and the definition of ‘Public Mental Health Services’ in proposed clause 4.1(kk) of the Replacement Nurses Agreement.

[204] The HSU emphasised new parts of the proposed amended definition of Registered Nurse in clause 4.1(pp) of the Replacement Nurses Agreement as follows:

“A person registered in Division 1 Registered Nurses of the Register of Nurses or a person registered as a Midwife on the Registrar of Midwives of the Nursing and Midwifery Board of Australia established under the Health Practitioner Regulation National Law Act 2009, but excludes a person employed solely or predominantly in the provision of Public Mental Health Services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.”

[205] The HSU submits that a key issue is that the proposed replacement coverage term contains ambiguous and uncertain terms and does not enable clear identification of the employees to be covered by it. Further, it says the definition ignores the operational and organisational distinction between mental health nurses and general nurses. Further the difficulty with the drafting is compounded by the difficulty of interpreting the example of the ED Hubs in the clause.

[206] In relation to ambiguous and uncertain terms, the HSU says the problem arises with the proposed new second paragraph of the definition of Registered Nurse, where it states:

“In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.”

[207] The HSU submits the parameters of what may constitute a “service, department, unit or program of the Employer” are indefinite. It says a unit or program could provide services to or within a department, a department could provide a service to another unit of the hospital and a program could be run within a unit. The HSU submits there are no coherent means of determining which term takes precedence The HSU submits the lack of guidance in the proposed definition as to how the terms interact is fatal to a rational interpretation of the proposed clause. Accordingly, the HSU’s position is that the Commission could not find that the employees proposed to be covered by the Replacement Nurses Agreement are fairly chosen. This is because the necessary precondition for such a finding, being able to identify those employees, cannot be satisfied. The HSU submits that this weighs against a finding that the changed coverage is appropriate.

[208] Further, the HSU submits the work performed by mental health nurses in public hospitals is operationally and organisationally distinct from the work performed by general nurses and that this is demonstrated by:

(a) the qualifications required (as recorded in the Mental Health Agreement, it is desirable that an employee holds a postgraduate diploma in psychiatric/mental health nursing or a specialist undergraduate qualification or post-basic course of training for appointment to RPN3 and mandatory for employees to have a postgraduate diploma in psychiatric/mental health nursing or a specialist undergraduate qualification or post-basic course of training for appointment to RPN4);

(b) the detailed prescription of their duties in clause 99 of the Mental Health Agreement reflecting and recording the specialist nature of mental health nursing;

(c) the varied locations in which they provide clinical care (e.g. EDs, CAT teams etc); and

(d) their clinical reporting lines, recorded in the Mental Health Agreement and required by the Mental Health Act.

[209] Both the VHIA and the ANMF contend that the employees proposed to be covered are, in the case of each replacement agreement, “fairly chosen.” The VHIA and the ANMF submit that guidance as to the meaning of “organisationally distinct” as that term is used in s 186(3A) of the Act may be drawn from the following propositions outlined by the Full Bench of the Commission in Aerocare Flight Support Pty Ltd t/a v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union (Aerocare):

a) the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;

b) the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;

c) however, the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and

d) most businesses have organisation structures which will allow organisationally distinct groups to be identified. 63

[210] The VHIA submits that the proposed definitions of coverage in the Replacement Agreements are intended to clarify ambiguities in the current wording of the coverage definitions to make clear that the status quo applies (i.e. that coverage under the Nurses Agreement and the Mental Health Agreement is based on the way that the work is organised and not on the duties or work performed by an individual employee) and clarify the coverage and application of the Nurses Agreement to nurses working in an ED Hub. Based on an organisational approach, the VHIA contends that the group that is covered by the Nurses Agreement includes nurses employed in an ED Hub. VHIA says that the group covered by the Mental Health Agreement is comprised of nurses employed solely or predominantly in public mental health services. Accordingly, the VHIA submits that both groups are fairly chosen, having regard to the operationally and organisationally distinct nature of public mental health services.

[211] The VHIA seeks to counter allegations of ambiguity by submitting that the words “service”, “department”, “unit” and “program” are well-understood terms within the mental health sector and the nursing and medical profession. It says some hospitals tend to prefer one of these terms as against another while other hospitals, in the relevant context, use one or more of these terms interchangeably. Each of the four words, submits the VHIA, is directed to the identification of that part of the organisation in which an employee is employed so as to determine whether that relevant part of the organisation is “solely or predominantly” concerned “in the provision of Mental Health Services”. The example of the ED Hub given in the coverage clause serves to clarify this because it is envisioned in the DHHS Guidelines that it will sit within the organisational structure of the relevant ED (which is not a department that solely or predominantly provides Public Mental Health Services). Therefore, persons working within an ED Hub will not be covered by the Replacement Mental Health Agreement. The VHIA submits that it is clear from the terms of the DHHS Guidelines that the ED Hub is an integrated part of the ED and does not constitute a discrete specialist mental health unit, program, department or service. Further, the VHIA submits that no question of a hierarchy arises from the use of the four words because where a component of a health service solely or predominantly provides mental health services, an employee engaged by that service will be captured.

[212] In support of its position that the terms “service, department, unit or program” are well understood, the VHIA relies on the following:

•  Their use in demarcation agreements and related proceedings;

•  Current and past industrial instruments;

•  Relevant legislation and explanation material;

•  The HSU submissions and testimony of its witnesses;

•  In excess of 1000 collective references to these terms in the Mental Health Agreement and in excess of 300 uses within the Nurses Agreement. 64

[213] The VHIA submits that for the purposes of this arbitration, the relevant question is whether the proposed coverage definitions are more appropriate than the current coverage definitions. The VHIA submits that the proposed coverage definitions should be preferred as they offer greater clarity, do not impose a physical location requirement and do not result in any change in coverage for those employees properly covered by either the Nurses Agreement or the Mental Health Agreement.

[214] The ANMF submits the groups chosen for the Replacement Agreements are the same groups as have been chosen for the Nurses Agreement and the Mental Health Agreement.

[215] The ANMF also particularly relies upon the proposition that “the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function” to submit that what is required is that there be a distinct and separate organisational element in terms of how work is organised. It contends the proposed coverage properly separates employees of organisationally distinct public mental health services provided by the 17 relevant employers from nurses of various specialisations who are employed in public health settings outside “public mental health services” and that the proposed clarification expressly seeks to recognise that organisational reality without impacting the status quo.

[216] In asserting that no ambiguity arises with respect to the proposed addition of the words “service, department, unit or program”, the ANMF refers to use of these terms in:

•  A demarcation agreement entered into by the ANF and HSUA on 2 October 1992 (1992 Demarcation Agreement);

•  The 1995 HACSU Award;

•  The 1997 demarcation dispute between the HSU and the ANMF;

•  The demarcation agreement made in 1997 (1997 Demarcation Agreement);

•  The Nurses Agreement;

•  The Mental Health Agreement.

[217] The ANMF contends that the HSU knows what the words “service”, “department”, “unit” and “program” mean and that the complaint of ambiguity it makes rings hollow given the organisational terms proposed by the ANMF and VHIA have a long history of industrial usage and they are used numerous times throughout the Mental Health Agreement. The ANMF says it envisages no particular hierarchy of terms and that all that is required for the purposes of delineation of coverage is that there be an identifiable organisational component within one of the employer parties to the Mental Health Agreement which can properly be described as a “service”, “department”, “unit” or “program” which provides mental health services, with the precise term to be determined by the particular context.

[218] The HSU says it is to be noted that the primary provision of the new definition – “‘employed solely or predominantly in the provision of Public Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee” – is in general and unconfined terms and appears to apply at large to all mental health nurses. It says the example of the “ED Hub” fails to provide any elucidation and has its own additional problems.

[219] Without any admission, the HSU says that even if the example (a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole) is read to be referring only to the Mental Health and AOD Hubs referred to in the DHHS Guidelines, there is still difficulty when attempting to ascertain how coverage will apply to the ED Hubs to be established in the six hospitals in Melbourne and Geelong. In asserting it is the establishment of the ED Hubs, and nothing else, that has prompted the inclusion by the ANMF and the VHIA of the new definitions in the Replacement Nurses Agreement, the HSU says Mr Gilbert admitted that the purpose of the proposed new definitions was “in part to recognise our view [the ANMF’s] that nurses employed in ED Hubs should be, and should continue to be, covered by the Nurses Agreement”, 65 while Mr Nagle stated that “it’s the ED Hubs that have really sort of raised the issue in terms of coverage from my perspective”.66

[220] The HSU submits the critical facts about the ED Hubs are as follows:

(a) Insofar as the ANMF and VHIA seek to rely on the DHHS Guidelines as clearly defining the structure and operations of the proposed Mental Health and AOD hubs, they do not do so. 67

(b) Six Hubs are proposed. Only one out of six, Monash Health, presently has a partially operational Hub.

(c) Operational and clinical oversight of the work done by mental health nurses in the Monash Health Hub is shared between the ED and the Mental Health Program. At Monash Health, the mental health program has clinical oversight of and responsibility for the work performed by mental health clinicians working in the Hub.

(d) The proposed operational and clinical governance of the other five Mental Health Hubs is unknown.

(e) It is not clear whether the clinical care provided in the Hubs will be provided by the designated mental health service, ie, the hospital’s mental health program, and thereby subject to the clinical oversight of the authorised psychiatrist, or outside that structure.

(f) It is not clear whether in all or any cases general nurses will be employed to work in the Hubs, and if so, whether the general nurses are providing general nursing care or mental health nursing care.

(g) The ED Hub to be established at Western Health (Sunshine Hospital), which is not a designated mental health service, will be staffed by mental health nurses employed by North Western Mental Health, which is the designated mental health service within Melbourne Health, thus splitting the staff of the hub between two employers as well as two enterprise agreements.

[221] The HSU says it is therefore simply not possible to say whether mental health nurses employed to work in the Hubs are or will be providing services to a department via the mental health program, or some combination thereof. The HSU asserts that if all ‘Hub’ hospitals intend to provide mental health services in the ED Hubs via the designated mental health service – submitting it is a reasonable assumption that they will do so, given both the clinical expertise contained in that service, and that the ED Hub at Monash Health is so organised – then it follows, based on the status quo whereby mental health nurses are providing psychiatric care in an emergency setting via programs such as the EPS, EMS and ECAT teams, that nurses engaged by the designated mental health service and working in the ED Hubs, will be properly covered by the Mental Health Agreement.

[222] The HSU asserts that as the VHIA is the representative organisation for the six Hub hospitals, its failure to put any evidence before the Commission from any hospital about the intended operation and function of the Hubs is extraordinary and the Commission should infer that any evidence that the VHIA could have called would not have assisted its case. 68

[223] The HSU says the VHIA attempted to distinguish existing psychiatric services provided in EDs from the Hub model, by claiming that mental health care will be provided in the ED Hub to patients without the need for a referral, whereas patients in emergency are attended by programs such as EPS, EMS and ECATT via a referral process. The HSU submits that this evidence was not provided by any clinician or hospital employee and was based on a document from Monash Health titled “Mental Health Service Access” 69 which was out of date and referred to systems and processes that have long since been superseded. It also relied on evidence from Ms Gallaher, which it says was that at Monash Health, patients are ‘referred’ (meaning, identified in the patient management software used by the hospital) to her in the Mental Health Hub, and to the EPS clinicians at Monash Health, “in exactly the same way,”70 and that in other interactions between emergency psychiatric services and the ‘general’ ED, no referral was necessary.71 The HSU says that Mr Nagle’s evidence was not based on any actual knowledge of the systems and processes in place at Monash Health or anywhere else, and it was unreasonable of him not to concede that Ms Gallaher’s evidence should rationally alter the VHIA’s submission in this respect.72 The HSU submits that the premise of the VHIA’s submission in this respect is accordingly devoid of probative evidence and should be given no weight.

[224] The VHIA submits the dispute is not solely concerned with the ED Hubs. It acknowledges that the ED Hubs have operated as a catalyst to this dispute but says the underpinning and fundamental source of dispute is whether coverage is determined on the basis of an organisational or duties test. 73 It says the proposed amendments seek to clarify this operational and organisational distinction beyond the example of the ED Hub. The VHIA submits the proposed amendments to the wording of the coverage clauses make clear that, consistent with the historically accepted organisational approach to coverage, nurses working within an ED Hub organised through the ED, as envisaged by the DHHS Guidelines, are covered by the Nurses Agreement. Further, it says this is also consistent with the status quo, as nurses reporting within the ED structure have always been covered by the Nurses Agreement or its predecessor agreements. The VHIA rejects the suggestion that this dispute is premature. It submits that the task of enterprise agreement making is necessarily a forward-looking task whereby not every aspect of an employer’s enterprise is known but that this does not prevent the enterprise agreement from being made. The VHIA says the ED Hub example was inserted into the Replacement Nurses Agreement after the publication of the DHHS Guidelines and that therefore, the example should therefore be read with the DHHS Guidelines so that the reference is limited to an ED Hub which conforms with the service delivery model set out in the DHHS Guidelines.

[225] Similarly, the ANMF submits the coverage dispute does not arise solely out of the establishment of the ED Hubs and raises as another example, clause 11.4 of the Mental Health Agreement. This clause, it says, is concerned with the creation of a protocol to assist employers to collate an accurate list of eligible employees for use in accordance with ballot processes outlined in the Act. The ANMF submits clause 11.4 is further evidence that there has historically been differences of application of agreement coverage by different employers covered by both agreements.

[226] The HSU asserts that despite the disproportionate reliance by the ANMF and the VHIA on the DHHS Guidelines, they do not offer any assistance to the construction of the proposed replacement coverage clause because they are not legally binding on any party to the Agreements, or the Commission. The HSU further attacks the DHHS Guidelines on the basis that the example of the ‘ED Hub’ in the proposed replacement coverage clause does not refer to the DHHS Guidelines and it also suggests that to the extent that the Guidelines suggest a particular model of service delivery in the ED Hubs, that model does not appear to be consistent with public statements by the Victorian Premier and then Minister for Mental Health that the ED Hubs are designed to move patients out of the ED. 74 The HSU submits that the DHHS Guidelines are internally inconsistent and says that even if it is assumed that the hospitals will establish their ED Hubs in accordance with the DHHS Guidelines, they are not required to do so, and if this transpires, any relevance the DHHS Guidelines have to the replacement coverage clause is reduced to nil. The HSU submits representatives of the VHIA and the ANMF conceded that if a hospital was to set up its Hub in a way that did not follow the DHHS Guidelines, then the Mental Health Agreement, not the Nurses Agreement, would apply.

[227] The HSU also says that as the VHIA did not call any evidence to demonstrate that hospitals are willing and able to structure their ED Hubs in the way prescribed by the DHHS Guidelines, the only evidence before the Commission about hospitals’ preferred model for the Hub was in relation to:

•  Ms Gallaher, who has been employed in a role with functions and responsibilities consistent with a classification under the Mental Health Agreement (notwithstanding her position description was settled before the release of the DHHS Guidelines); and

•  St Vincent’s Hospital which, in May 2019, wished to employ mental health clinicians in its hub under the Mental Health Agreement. 75

[228] The HSU says the Commission should assume, consistent with evidence from the VHIA witnesses, that the hospitals are best placed to determine the most appropriate operation of the ED Hubs, and that those decisions, and not the DHHS Guidelines, should guide coverage under the Replacement Nurses Agreement and Replacement Mental Health Agreement.

[229] As to the reliance of the ANMF and the VHIA on clause 7.1 of the DHHS Guidelines, which state that the Nurses Agreement may be applied to nursing staff employed to work in the Hubs, the HSU submits the inclusion of clause 7.1 occurred in unexplained circumstances that do not engender confidence that the prescription of industrial coverage included in the DHHS Guidelines is in the interests of employers or employees. The HSU submits Ms Allison Sidebotham, Director, Industrial Relations – Health at the DHHS, had no involvement in the DHHS Guidelines and could not give the identity of the author of them. The HSU also submits the VHIA had no involvement in the development of the DHHS Guidelines. As for the ANMF, the HSU submits Mr Gilbert gave evidence that:

•  ANMF officers consulted with the DHHS over the development of the Guidelines;

•  The ANMF had discussions with the Department about the inclusion of clause 7.1 in the DHHS Guidelines;

•  The ANMF wanted to ensure that registered nurses working in the Hubs would be covered by the Nurses Agreement; and

•  The attitude of the ANMF was that the Nurses Agreement was the proper agreement to apply and those instructions were given to the ANMF officers working with the Department on the development of the DHHS Guidelines.

[230] The HSU says Mr Gilbert did not and could not say whether clause 7.1 was ultimately included in the DHHS Guidelines because of these things and submits the Commission is left without any probative evidence about the introduction of it into the DHHS Guidelines, although the inclusion was clearly the preference of the ANMF.

[231] The VHIA submits the Commission is entitled to infer that the DHHS Guidelines were developed in consultation with clinical experts as their detailed description of the proposed patient journey in the ED Hub could only have been prepared by, or in consultation with, clinicians familiar with the operations of an ED. Both the VHIA and the ANMF discount the significance of the Victorian Government media release dated 10 May 2018 and entitled “New Mental Health Hubs to Treat More Victorians Sooner”. The VHIA submits a one-page press release cannot seriously be relied upon as comprehensively outlining the anticipated service delivery model of the ED Hub and that if all that was intended was to fund another discrete mental health service, the obvious choice would be to direct such funding into existing discrete mental health services, such as the EPS or ECATT. The ANMF argues the media release predates the DHHS Guidelines, was a high level announcement only and did not propose to set out any specific model for the operation of ED Hubs. The ANMF submits that the DHHS Guidelines set out a clear organisational model for ED Hubs, which supports the case for clarified coverage advanced by it and the VHIA, and undermines the propositions sought to be advanced by the HSU with respect to ED Hubs. The ANMF also submits the DHHS Guidelines make plain that ED Hubs are not proposed to operate as organisationally distinct services, departments, units or programs in the provision of mental health services.

[232] The VHIA relies on evidence from Mr Nagle in submitting that the ED Hub represents a new way of working together to enhance ED responses and treatment for people that present with mental health and AOD issues. It contends that while there is a focus on persons presenting with mental health and AOD issues, the ED Hub essentially performs an emergency function. The VHIA says the ED Hubs are seeking to complement the existing mental health consulting service through a focus on a particular cohort of ED presentations who require ED level assessment, diagnosis and treatment. That said, the VHIA makes the point that the ED Hub is not intended to be solely concerned with patients presenting with mental health issues because, as set out in the DHHS Guidelines, a separate objective of the ED Hub is to provide care for patients presenting with AOD needs. The VHIA also submits the DHHS Guidelines envisage a service delivery model which involves employment of nurses with mental health and/or AOD education and experience. As with nurses with other specialist qualifications, such as paediatrics, being utilised in an ED, the VHIA submits the specialisation is incidental to the primary function of the ED, which is to provide emergency care.

[233] The VHIA submits that while the employment of nurses with mental health or AOD education or experience provides additional expertise to the ED Hub in its ED function, this does not transform the ED Hub into a mental health service, let alone an AOD service. It submits as follows:

•  The main function of the ED Hub and the main duties remain the provision of emergency care;

•  All nurses working within the ED Hub may need to be able to perform nursing duties within the ED Hub and across the entire ED to achieve the integration and collaboration intended by the service delivery model set out in the DHHS Guidelines;

•  It is therefore appropriate that nurses employed in the ED Hub are covered by the same industrial instrument; and

•  Having regard to the overall function of the ED Hub as performing an emergency function and not a mental health function, the nurses are properly covered by the Nurses Agreement and not the Mental Health Agreement.

[234] The VHIA submits that on this basis the proposed group to be covered by the Nurses Agreement is fairly chosen.

[235] The ANMF also argues that all care in ED Hubs will constitute emergency care and that they will not be focused solely on patients with mental health presentations, also being intended to deal with patients presenting with AOD issues. The ANMF references the DHHS Guidelines as revealing that the ED Hubs are contemplated to be an integrated service operating 24 hours a day, seven days a week, delivered by the ED with mental health and AOD clinicians. The ANMF says the ED Hubs will provide a non-admitted service in dedicated space within the ED.

[236] The ANMF submits that even though EDs routinely deal with patients with AOD and mental health problems this does not transform the ED into a public mental health service and contends that there is no suggestion from the HSU that nurses with specialist AOD or mental health skills working in EDs should be covered by the Mental Health Agreement and its proposed replacement. In the circumstances, the ANMF submits that nurses working in the ED Hubs would appropriately be covered by the Replacement Nurses Agreement. The ANMF says this is consistent with nurses with particular specialties who work in EDs still being covered by the Nurses Agreement irrespective of their particular speciality. The ANMF submits that care provided in ED Hubs is expected to be similar to that currently provided in short stay beds within EDs, for those presenting with transient acute AOD or mental health concerns. This is to be contrasted with several examples invoked by the HSU in which employees are properly covered by the Mental Health Agreement, including employees in PAPUs, EPS and ECATT teams who are engaged solely or predominantly in the provision of Mental Health Services in an organisationally distinct context. The ANMF contends these services do not operate in ED settings, whereas the DHSS Guidelines contemplate the ED Hub model being structurally integrated into the operation of the ED.

[237] The ANMF submits the ED Hub example included in the coverage clause in the Replacement Nurses Agreement is referrable to an “ED Hub” in contemplation by the parties at the time of introducing that example, as described by the DHHS Guidelines and it is beside the point that there is a prospect that different hospitals may, purportedly utilising their clinical judgment and expertise, ultimately depart from that ED Hub model. The ANMF submits that if certain hospitals elect to introduce a new, organisationally discrete, model for treating patients presenting to the ED for mental health and drug and alcohol treatment, then such model will not fall within the definition of the “ED Hub” in the coverage clause. It says that this prospect ought not deter the Commission from resolving the extant coverage dispute on the basis that it is supposedly premature to assess what is meant by the “ED Hub” example in the Replacement Nurses Agreement, or for any other reason.

[238] The ANMF responds to the evidence of Ms Gallaher by submitting her position description and employment under the Mental Health Agreement are not instructive given that Monash Health currently does not have a fully configured and operational ED Hub, a fact it says is accepted by the HSU. It maintains that Ms Gallaher’s operational reporting line is the hard reporting line and that this is the relevant reporting line for determining the way in which Ms Gallaher’s role is organised. The ANMF also relies on the absence of a reference to Ms Gallaher’s “Engage Team” (or the ED Hub) in the organisational chart for Monash Health’s Mental Health Program. It relies upon the following characteristics from Ms Gallaher’s current position description:

(a) the position will work within the ED;

(b) that Ms Gallaher will report operationally to the ED Nurse Manager, albeit reporting clinically and professionally to the Mental Health Program; and

(c) that Ms Gallaher’s duties will include “co-ordination of the patient journey and the inter-disciplinary response to people presenting to the MMC ED with mental health and AOD issues, nominating appropriate pathways for care.

[239] The ANMF submits the current circumstances surrounding Ms Gallaher’s position at Monash Health should not deter the Commission from accepting that the clarification to coverage proposed by it (and the VHIA) reflects the proper construction of the coverage clauses, and that the ED Hub as contemplated by the DHHS Guidelines is an appropriate example of coverage delineation. If Ms Gallaher’s position is ultimately organisationally part of an ED Hub configured as contemplated by the DHHS Guidelines, then she would properly be covered by the Nurses Agreement (and the Replacement Nurses Agreement). If, on the other hand, Monash Health configures its purported ED Hub in a way that is not consistent with the model contemplated in the example used in the Replacement Nurses Agreement, by reference to the DHHS Guidelines, then the ANMF submits it will simply be necessary to determine proper agreement coverage for Ms Gallaher – and nurses like her – by reference to the organisational test for coverage.

Other matters relevant to the ‘fairly chosen’ criteria

Organisational and operational distinction of the work of mental health nurses

[240] The HSU submits that the work performed by mental health nurses in public hospitals is operationally and organisationally distinct from the work performed by general (non- mental health) nurses and is also qualitatively different. 76

[241] The HSU submits that 17 out of the approximately 125 public health services in Victoria 77 have been prescribed by Parliament as being designated mental health services78 under the Mental Health Act and that the mental health departments of the relevant health services are clearly identifiable by reference to their clinical responsibilities. The HSU says the Mental Health Act prescribes what can be done by those mental health services, and how treatment is to be provided.79 Further, it says that the Mental Health Act also regulates and limits the use of certain restrictive and compulsory practices and ensures that those practices are overseen by a suitably qualified and experienced medical practitioner. To this end, s 150 of the Mental Health Act requires that each designated mental health service appoint an authorised psychiatrist who has powers and functions conferred on them under the Mental Health Act. The HSU submits the authorised psychiatrist carries a substantial clinical governance role for conduct performed under the Mental Health Act. It appears to be uncontroversial that each of the designated mental health services have a structure headed by the authorised psychiatrist, and staffed by clinicians who are answerable to a line of command ultimately reporting to the authorised psychiatrist.

[242] The HSU says that the separate administrative and clinical structure of designated mental health services is variously referred to as the mental health program, or mental health service, of a particular hospital. The HSU argues that because the employers covered by the Mental Health Agreement are also covered by the Nurses Agreement, it is necessary to identify some distinguishing feature of those employers to ascertain coverage. It submits the distinguishing feature is supplied by the separate organisational structure imposed by the Mental Health Act (and its predecessors) and that this position is commonly understood by all parties including the VHIA and the ANMF.

[243] The VHIA agrees the Mental Health Act provides the framework for certain powers and duties and that these include assessment and treatment orders, which enable compulsory treatment, and restraint and seclusion in designated mental health services. The VHIA contends there is a distinction between “designated mental health service” as defined in the Mental Health Act (a prescribed public hospital, public health service or denominational hospital) and the definitions of “mental health services” in the Mental Health Agreement and the Nurses Agreement, which are the discrete components of the health service solely or predominantly providing mental health services. It says the Mental Health Act provisions applying to designated mental health services apply across an entire health service and are not limited to the specific mental health service, unit, department or program delivered by it. The VHIA submits that the Mental Health Act does not impose an operational or clinical reporting structure within a designated mental health service.

[244] The VHIA contends the relationship between a registered nurse and an authorised psychiatrist envisaged by the Mental Health Act is not of a supervisory or managerial nature. It acknowledges the authorised psychiatrist holds the authority to make certain clinical orders under the Mental Health Act but submits this does not result in an operational or clinical reporting relationship between the registered nurse and the authorised psychiatrist. In this regard, the VHIA proffers that while a registered nurse may need to notify the authorised psychiatrist of certain matters, there is no suggestion that anything more than mere notification is required to fulfil this obligation. The VHIA also suggests that as an authorised psychiatrist can delegate his or her functions and powers to any or all other psychiatrists within the health service, it would be dysfunctional if each of the psychiatrists were then clinically responsible for any nurse invoking the Mental Health Act.

[245] The VHIA submits that the Mental Health Act imposes a separate regulatory overlay, which sits above the organisational structure of the mental health service and does not dictate the way in which a health service structures its mental health services. It asserts that none of the organisational charts in evidence illustrate an organisational structure referrable to the requirements of the Mental Health Act and that no roles are identified as “authorised psychiatrists”. The VHIA also contends that the Mental Health Agreement reveals the limited relevance of the Mental Health Act to the structure of a Registered Psychiatric Nurse’s reporting line. It submits there are a total of eight references to the Mental Health Act across the entire Mental Health Agreement but only one specifically relates to the classification of a Registered Psychiatric Nurse classification (requiring that a Unit Manager follow the provisions of the Mental Health Act). 80 The VHIA says there are no references to an authorised psychiatrist at all. The VHIA argues that it would have been expected that if the obligations under the Mental Health Act underpinned the fundamental structure of a mental health service, more and clearer references would have been made in what is otherwise a comprehensive, detailed and prescriptive Agreement.

[246] The ANMF submits that the references to “public mental health services” in the Nurses Agreement and to “Mental Health Services” in the Mental Health Agreement are, on a proper construction, references to the organisational component of mental health services rather than the duties of individual “mental health nurses”. It submits that examples referred to by the HSU, such as EPS, ECATT, PAPU and CAT teams, forensic care and in-patient wards refer to organisationally distinct specialist mental health services, departments, units, programs, wards etc. It says that with the exception of Ms Gallaher, all of the HSU’s nurse witnesses clearly work in the provision of specialist and discretely delivered mental health services. The ANMF asserts that each of these witnesses, and other nurses like them, are already appropriately covered by the Mental Health Agreement and will continue to be covered by the clarified coverage clause in the Replacement Mental Health Agreement.

[247] The ANMF makes the following further submissions:

•  Occupational specialisation on an individual level is not to be equated with being organisationally distinct for the purposes of agreement coverage.

•  Nurses have a myriad of different specialties but it does not follow that they operate distinctly from other nurses and all require separate coverage.

•  Nothing turns on the classifications in clause 99 of the Mental Health Agreement because the RPN and Psychiatric Enrolled Nurse (PEN) classifications are outdated and outmoded and are not concerned with professional registration requirements for Registered Nurses and Enrolled Nurses. It was submitted this was accepted by Mr Healey under cross-examination. 81

•  The classifications in clause 99 simply regulate industrial progression, as is made clear by the definitions of RPN and PEN, which are intended for use as an industrial classification and for the purpose of the Mental Health Agreement only.

•  For professional purposes, the NMBA only recognises Registered Nurses and Enrolled Nurses.

•  There is no specialist mental health nursing registration in Australia, and the classifications in the Mental Health Agreement do not confer specialized nursing status on “mental health nurses” from any regulatory perspective.

•  The Mental Health Agreement has no role to play in regulating a “mental health nurse’s” scope of practice, which is instead defined by the NMBA, based on the nurse’s education, authorisation to practice (through the NMBA registration process and statutory regulation) and competence for practice.

[248] The ANMF contends Ms Rebis and Mr Darmanin accepted in their reply witness statements and under cross-examination that the Mental Health Agreement does not speak to their clinical practice and decision-making. Ms Rebis confirmed that she does not use the Mental Health Agreement to determine her scope of practice or applicable professional standards. 82 Further, it says Mr Darmanin confirmed that the Mental Health Agreement does not contain information about the clinical decision making framework applicable to nurses working in specialist mental health services.83

[249] The ANMF addressed the Mental Health Act by submitting that apart from defining a “registered nurse” as a person who is registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse, it does not otherwise mandate any additional specialisations or classifications for the purposes of its application to registered nurses.

Discriminatory treatment of mental health nurses

[250] The HSU submits that under the Nurses Agreement, mental health nurses were excluded by reference to their work whereas under the Replacement Nurses Agreement the criterion that applies to them only has been changed from one which operated by reference to the duties which they perform, to a new criterion which operates by reference to the location where they work. The HSU argues that the Replacement Nurses Agreement discriminates against mental health nurses by treating them differently than other nurses and it does so to their detriment because it denies them of the coverage of the Mental Health Agreement, deprives them of the classification structure which was specifically designed for mental health nursing and deprives them of the provisions of the Mental Health Agreement which sets out in detail the duties performed by mental health nurses. Insofar as this proposed coverage is detrimental to the mental health nurses caught by the Replacement Nurses Agreement, it demonstrates that the employees proposed to be covered by the Replacement Nurses Agreement have not been fairly chosen.

[251] The ANMF submits the Mental Health Agreement is an industry agreement which presently already covers only those “mental health nurses” (and other employees) who work solely or predominantly in the provision of mental health services in an organisational, rather than a duties-specific sense. The ANMF argues that what is proposed will not change this status quo, which has arisen from a long industrial history of coverage of the Mental Health Agreement and its predecessors being determined by the organisational test.

[252] Similarly, the VHIA submits the proposed definitions do not result in any change in coverage for those employees properly covered by the Nurses Agreement or the Mental Health Agreement and that the proposal is consistent with the historical approach to coverage, such that no issue of discriminatory treatment therefore arises.

3.2 Fair and Efficient Conduct of Bargaining

(b) Whether the proposed coverage in each of the replacement agreements will promote the fair and efficient conduct of bargaining in relation to each of the replacement agreements

[253] The HSU says the proposed amendments to coverage in the Replacement Nurses Agreement are uncertain and because it is difficult to bargain when the persons to be covered cannot be clearly identified, this does not promote the fair and efficient conduct of bargaining.

[254] Secondly, the HSU says only a negative answer to the questions posed to the Commission will resolve the impasse in bargaining because a positive answer to the posed question will require negotiations over the appropriate classifications for mental health nurses under the Replacement Nurses Agreement, there will be the need to address the provisions which are set out at clause 99 of the Mental Health Agreement and a reconciliation between those matters and the conditions which are to apply to nurses who are not mental health nurses will be required, which may give rise to significant relativity issues. 84

[255] The HSU submits that witnesses for the VHIA and the ANMF properly accepted this proposition in cross-examination. It says that Mr McCullough agreed that if the Commission came to the view that the preferable course was to retain the existing scope provisions in the Replacement Agreements, accompanied by reasons going to the meaning of the coverage clauses, then “that will resolve the matter”. 85 Further, the HSU submits that Mr Nagle agreed that the decision of the Commission, whether in favour of the VHIA’s proposal or otherwise, would provide an answer which all parties agreed to accept.86 It says that Mr Gilbert accepted that if the Commission decided in favour of the proposed replacement coverage clauses, and the HSU made a claim on behalf of mental health nurses to include equivalent classifications in the Replacement Nurses Agreement to those that presently apply under the Mental Health Agreement, then ensuing negotiations would likely delay the finalisation of the Replacement Nurses Agreement.87 The HSU says that Mr McCullough also acknowledged this possibility.88

[256] The HSU also argues that while the ANMF and VHIA assert that there has arisen a degree of confusion and disputation about the coverage of the Agreements, and that their proposed amendments are accordingly necessary for the purposes of promoting the fair and efficient conduct of bargaining, 89 no actual dispute was identified (other than the events leading to this arbitration) in the material filed in September 2020 by the ANMF and the VHIA. The HSU says it was not until the day before the hearing that the VHIA filed evidence from Mr McCullough referring to a dispute in 2012 concerning the coverage of nurses employed by Barwon Health at Hilary Blakiston Lodge.90

[257] In addition, the HSU says Mr Gilbert’s evidence about two alleged coverage disputes was introduced while in cross-examination. 91 It is firstly submitted by the HSU that his evidence about these disputes92 should be given no weight because it was introduced in circumstances which were prejudicial to HSU because it had no prior notice of it and there was no satisfactory explanation for it being produced at that late stage. Secondly, and in any event, the HSU submits that the evidence is devoid of any probative value because there is nothing in Mr Gilbert’s evidence that allows the Commission to form any view as to whether the alleged disputes have anything to do with the issues in dispute in this arbitration.

[258] Finally, the HSU says that the evidence of Mr Gilbert and Mr Nagle as to a ‘demarcation culture’ arising between nurses in EDs across Victoria relating to their industrial agreement coverage was mere unfounded speculation because Mr Nagle agreed that there was no evidence of the existence of a demarcation culture in any of the VHIA member hospitals 93 and Mr Gilbert stated that “the circumstances don’t exist in which [nurses] can have that difficulty” regarding the application of two agreements to nurses working in the ED. The HSU submits this is a tacit acceptance of the fact that no demarcation dispute currently exists. The HSU also asserts mental health nurses already work alongside non-mental health nurses in emergency settings and the ANMF produced no evidence of any dispute or even a slight concern, by nurses about the industrial arrangements of their colleagues. The HSU contends that the opinions of Mr Nagle and Mr Gilbert are not cogent evidence of any demarcation concern by nurses working in EDs, and therefore no weight should be attributed to their comments.

[259] The HSU submits that the evidence of Ms Gallaher, who speaks from first-hand knowledge and experience, in denying the existence of a demarcation culture was not challenged and should be preferred instead.

[260] The HSU says it follows that the fair and efficient conduct of bargaining has not been impeded or affected in any way by disputes arising from the current coverage under the Agreements. However, should the Commission find in favour of the proposed replacement agreements, the HSU says there is a real likelihood that the fair and efficient conduct of bargaining for the Replacement Nurses Agreement will be substantially delayed in order to accommodate the need for specific classifications and provisions relating to mental health nurses.

[261] The VHIA submits the current wording in the Nurses Agreement has caused confusion and disputation and emphasises that the HSU and the VHIA (together with the ANMF) advance competing constructions of the coverage clauses in this dispute (and past and current disputes– Blakiston Lodge at Barwon Health and in respect of the proposed ED Hubs models at St Vincent’s Hospital and Monash Health).The VHIA argues that if the Commission answers the agreed questions in the positive, all bargaining representatives will have a clear understanding of the scope of both Replacement Agreements, which will promote the fair and efficient conduct of bargaining. Specifically, it asserts that the Replacement Nurses Agreement should be able to progress to an employee vote, with bargaining having substantively concluded and the deal struck between the parties having already been approved by the Victorian Cabinet. In response to the HSU’s position regarding clause 99 of the Mental Health Agreement, the VHIA submits:

•  the Nurses Agreement already provides for the employment of any nurse, including a registered nurse with post-registration qualifications in mental health;

•  it is not aware of any prior claim by the HSU to incorporate the contents of clause 99 into the Nurses Agreement, and any such claim would go against the organisational distinction warranting the mental health exclusion;

•  the inclusion of clause 99 would merely convert the Nurses Agreement into the Mental Health Agreement;

•  the prescription in clause 99 would be inappropriate because it is inevitable any nurse in an ED Hub will need to work across an entire department and will need to be flexible in the duties they undertake; and

•  the evidence of the HSU’s witnesses demonstrates the inflexibility of the clause 99 prescription in practice, which would be pronounced in an acute setting within a multi-disciplinary team in an integrated service and given the imperative of timely assessments within an ED, this is not appropriate.

[262] The VHIA further submits that if the Commission answers the agreed questions in the negative, the ambiguity in the existing coverage definitions will remain and the parties will remain in dispute about the meaning of the existing coverage definitions in the Replacement Agreements. In these circumstances, given the arbitration agreement binds the parties only in respect of the agreed questions for determination, the VHIA contends the parties would be free to argue for their construction until a binding decision of the Federal Court and such an outcome would stymie, rather than promote, the fair and efficient conduct of bargaining. The ANMF makes a similar submission in contending that a negative answer to the questions posed in this arbitration would risk ongoing disputation.

[263] The ANMF submits that history of bargaining for the Replacement Nurses Agreement highlights that, despite the previously clear historical demarcation, there has arisen a degree of confusion and consequent disputation regarding the coverage of that agreement and the Mental Health Agreement. It refutes the suggestion that the HSU has been excluded from negotiations with respect to the coverage of the Replacement Nurses Agreement, relying on the following evidence of Mr Gilbert, which it says was not challenged:

“In my view, the ANMF was not required to consult with the HSU in the course of bargaining for the Replacement Nurses and Midwives Agreement. Nevertheless, the ANMF on several occasions raised the question of coverage clarification with the HSU but the HSU was not prepared to entertain any clarification to coverage. In addition, to the best of my knowledge, the HSU did not identify any concrete problem with the ANMF’s proposed clarification of coverage in the course of bargaining other than to challenge the nature of the demarcation status quo. Nor has it, to date, suggested an alternative means of resolving potential disagreements about the coverage of the two replacement agreements.” 94

[264] The ANMF submits that its proposal for coverage clarification will serve to eliminate existing confusion and avoid unnecessary future disputation and allow the Replacement Nurses Agreement to be finalised and put out to vote (on the basis that the extant dispute is the only outstanding matter in respect of which the ANMF and the HSU are in dispute). The ANMF contends that given the analogous coverage clause in the Mental Health Agreement, its proposal for coverage clarification will resolve what will otherwise be a substantial hurdle to the advancement of bargaining with respect to, and the finalisation of, that agreement too. The ANMF therefore submits that its proposal for coverage clarification would serve the interests of promoting fair and efficient bargaining with respect to the replacement agreements.

[265] The ANMF argues the HSU is incorrect when it asserts that the proposed coverage clarification is somehow unclear, submitting the HSU has neither identified any concrete problem nor suggested an alternative means of resolving potential disagreements about the coverage of the respective agreements.

[266] The ANMF submits it is wrong to say that a positive answer to the questions would create industrial problems, on the basis that the Replacement Nurses Agreement has classifications sufficient to describe the work to be performed and the level at which it is to be performed thereby rendering clause 99 of the Mental Health Agreement irrelevant. It also refutes that either “significant relativity issues” would arise or that there is any evidence to substantiate the assertion that a positive answer to the questions posed in the arbitration would result in claims for the introduction into the Replacement Nurses Agreement of classifications akin to those in clause 99 of the Mental Health Agreement. The ANMF contends that any suggestion to this effect is mere speculation, asserting that no such claim has so far been made in the course of the negotiations.

3.3 The Interests of Employees and Employers

(c) in relation to each of the replacement agreements, the interests of the employers and the employees proposed to be covered by that replacement Agreement

[267] The HSU submits the evidence called by it established that mental health nursing is a highly specialised area of clinical nurse practice and mental health nurses place high value on the Mental Health Agreement and use it in their day to day work. The HSU maintains each mental health nurse it called considered that coverage under the Mental Health Agreement was an important recognition of their specialist skills and status as mental health nurses. 95

[268] The HSU says the Mental Health Agreement is not intended to, and does not operate as a replacement for the professional obligations imposed on all registered nurses by the NMBA. It claims the contention, put by the ANMF in cross-examination, that the Mental Health Agreement could not supersede the NMBA standards for professional registration, was a false dichotomy. In this regard, it argues no witness called by the HSU contended that the Mental Health Agreement replaced the national standards, and it was not put to them that the Mental Health Agreement overrode or conflicted with the NMBA standards. 96

[269] Further, the HSU submits the Mental Health Agreement records matters that according to the DMF, 97 may be relevant to defining a nurse’s scope of practice, including the reference to the setting in which work is performed, and the qualifications considered desirable and/or necessary for particular classifications.98 These qualifications are set out in clause 99.11(f) of the Mental Health Agreement.

[270] The HSU says that while the national standards undoubtedly apply to all registered nurses, regardless of their speciality, they are not intended to and are not capable of operating as the sole guide to every aspect of the employment relationship. It relies on evidence from Mr Murphy that the national standards are “overarching principles” that do not address the “issues that govern how we practice on the ground”. 99

[271] The HSU submits that the evidence supports a finding that the Mental Health Agreement is routinely used by mental health nurses to ensure they are operating within the roles and responsibilities agreed by employers and employees and contained in it. It says the mental health nurses called by it gave unchallenged evidence both in chief, and in cross-examination, that they use the Mental Health Agreement for various purposes including:

(a) defining the roles, responsibilities, and duties attached to their particular classification; 100

(b) as a reference guide and to gain clarity with regard to tasks and duties or clarification around the expected behaviours and expected professional requirements of the role; 101

(c) as a source of the tasks, responsibilities and expectations within the scope of the role. 102

[272] The HSU referred to the sole nurse called by the ANMF and VHIA, Mr Morgan, and noted he is a registered nurse working in the Eastern Health mental health program, primarily in the ED at Box Hill Hospital. The HSU says Mr Morgan is covered by the Mental Health Agreement and gave no evidence that he was indifferent to industrial coverage.

[273] The HSU says there was no evidence presented regarding the interests of nurses and employers presently covered by the Nurses Agreement and nor was there evidence from those who will be covered by the Replacement Nurses Agreement. The HSU asserts that the argument of the ANMF and VHIA that nurses employed to work in the Hubs would suffer from a ‘demarcation culture’ if general nurses and mental health nurses were to work alongside each other while covered by different enterprise agreements was therefore founded on speculation only and should be given no weight by the Commission.

[274] As to the interests of employers, the HSU submits that it seems that at least that Monash Hospital/Monash Health considers it most appropriate to employ the mental health nurses who work in its Hub under the Mental Health Agreement.

[275] The ANMF submits the proposed clarification of coverage it seeks will end the confusion surrounding the current disputation between the ANMF and the HSU regarding coverage and pave the way for the finalisation of the replacement agreements. Central to its submission is that certainty regarding coverage, both in the immediate and longer term, is in the interests of the employees covered by both the Replacement Nurses Agreement and the Replacement Mental Health Agreement. Referring to the ED Hubs specifically, the ANMF submits it is in the interests of nurse employees that they are able to work in a cohesive, multidisciplinary environment with nurses from different specialities under the same agreement (and therefore the same terms and conditions of employment). It asserts this would be conducive to ED Hubs operating effectively and avoiding any divisions in cohesion between nurses who work together but who might be covered under two different enterprise agreements. The ANMF sought to highlight that public sector nurses with different specialisations being covered by a single enterprise agreement pertains Australia-wide outside Victoria. 103

[276] The ANMF submits the clarification of coverage will avoid a highly impractical outcome contended for by the HSU whereby it would be necessary to measure each individual employee’s work and time spent performing mental health duties in order to determine whether they fall within the coverage of the Mental Health Agreement (and its replacement). This practical difficulty may have numerous dimensions, including with respect to supervision, reporting, payroll and enterprise bargaining. Even if the HSU position changed to one of assessing coverage by reference to the “job” that a particular nurse is employed to perform, 104 the ANMF says a potential problem is left unanswered.

[277] The ANMF asserts the clarification it seeks avoids the unfortunate consequence of the duties-based construction posited by the HSU which would exclude from the definition of “Employee” in the Replacement Mental Health Agreement all those employees who are not engaged in direct care as a “mental health nurse” and, relatedly, would exclude from the coverage of both agreements those “mental health nurses” not employed by one of the employers party to the Mental Health Agreement. The ANMF maintains that the HSU has not provided an adequate response to these constructional problems and that their adverse impact is plainly not in the interests of those employees who are currently covered by one of the two agreements but would stand to be excluded from both replacement agreements under the HSU’s proposed construction.

[278] The ANMF responds to Ms Gallaher’s evidence that she has not encountered demarcation disputes between clinicians and staff working under different enterprise agreements by contending that she does not presently work in a configured ED Hub and therefore cannot speak to the risk of there being a lack of cohesion arising from nurses working under different terms and conditions of employment in a dynamic ED environment.

[279] The VHIA submits that absent clarification in relation to the coverage clause, coverage disputes during any future enterprise agreements (including when ED Hubs are established) are inevitable, on the basis that the HSU interpret the current coverage clause as involving a “duties" based test and the VHIA and ANMF interpret the current coverage clauses as involving an “organisational” based test. As such, it submits the proposed amendments will enable employers to administer the agreements with greater confidence.

[280] The VHIA rejects the suggestion that a Jones v Dunkel inference be drawn in respect of the evidence it relied upon by the VHIA on the basis that it is a registered organisation representing the health services covered by the Nurses and Mental Health Agreements and both its witnesses have the critical experience and knowledge in respect of their history and application. It relies on Mr Nagle having previously worked as an ANUM in the ED of Monash Medical Centre in Clayton and what it says was his unchallenged evidence that he had consulted each of the health services and that those health services agreed that coverage under the Nurses Agreement and under the Mental Health Agreement was determined by an organisational test. 105

[281] In submitting that the HSU’s duties or vocational based construction would give rise to a number of unworkable arrangements within the ED Hub, the VHIA asserts its members have a further interest in clarifying that coverage is based on an organisational approach. In contending that the ED Hub service delivery model involves the need for clinicians to work collaboratively, flexibly and closely with one another, the VHIA submits the application of multiple enterprise agreements risks engendering a demarcation culture between those covered by the Mental Health Agreement and those who are not. It argues this was confirmed by evidence of the HSU witnesses that they would object or escalate the issue if required to perform work outside of the duties stated in the classifications of the Mental Health Agreement 106 and that the HSU witnesses also confirmed that they would object if they worked alongside nurses who did not have mental health training or experience providing care to mental health patients.107 The VHIA submits such demarcation goes against the integrated and multi-disciplinary nature of the service delivery model. It contends that a practical consequence is that the area of practice of nurses covered by the Mental Health Agreement may be restricted by the classifications in clause 99 and this has the potential to operate as an obstacle to the ED clinicians’ ability to direct staff to work across the ED Hub and the broader ED with flexibility and agility which, it argues, is critical in an emergency setting.

[282] The VHIA contends a duties based construction, for which it is necessary to determine whether an employee's duties are “solely or predominantly” in the provision of mental health services at any given time is unworkable because:

•  It would be difficult, if not impossible to determine what proportion of a nurse's duties were responsive to a patient's mental health condition, as there is significant overlap between the duties of all nurses regardless of one's area of practice.

•  Even if mental health duties can be segregated and separately quantified, the agreement does not state the time period for making an assessment of this nature and in an integrated service, such as the ED Hub where nurses may be regularly working across a medical department, this would be particularly difficult.

[283] The VHIA asserts that greater certainty is achieved by an organisational approach to construction because coverage is not vulnerable to the day to day changes in duties of an individual nurse and is determined by reference to the nature of the relevant service, unit, department or program, which does not ordinarily change on a regular basis.

[284] The VHIA submits that the potential application of clause 91 to units or wards that are not delivered by mental health services is another difficulty with the HSU’s construction because clauses 91.1 and 91.2 of the Mental Health Agreement require the appointment of a Registered Psychiatric Nurse – Nurse Unit Manager and Registered Psychiatric Nurse – Associate Nurse Unit Manager to each ward/unit of all residential and in-patient services and clause 91.6 requires that registered psychiatric nurses make up two thirds of an inpatient roster. The VHIA argues that these additional requirements would be unworkable in circumstances where non-mental health services already have established reporting structures which do not align with the requirements of clause 91. If the Mental Health Agreement applied to medical inpatient units, this would likely require the employment of additional staff or reclassification of existing staff.

[285] The VHIA submits that contrary to what has been put by the HSU, the classifications in clause 99 of the Mental Health Agreement do not confer specialist recognition or status for mental health nursing. Relying on evidence from Mr Nagle, the VHIA says that once employed within a particular classification, clause 99 may assist in defining the remuneration of a particular role but it does not, in itself, create or “protect”, mental health nursing positions and nor does it provide a form of accreditation or registration for mental health nurses. The VHIA contends that the standards and policies that all nurse practitioners must meet are set by AHPRA and that the HSU witnesses accept that there is no specialist registration for registered or enrolled nurses with advanced qualifications or experience in mental health. The VHIA says the classification descriptions in clause 99 of the Mental Health Agreement acknowledge that no specific psychiatric or mental health qualifications are needed to perform work at Registered Psychiatric Nurse levels 1 or 2, are only ‘desirable’ at Registered Psychiatric Nurse level 3 and the requirement for additional qualifications is not mandated until Registered Psychiatric Nurse level 4. As for the Mental Health Act, it applies to registered nurses employed or engaged by a “designated mental health service” and imposes no requirement that a registered nurse have additional qualifications or training in mental health or identify as a Registered Psychiatric Nurse in order to administer powers and treatments, such as assessment orders and restrictive interventions (such as seclusion or bodily restraint).

[286] The VHIA argues that the descriptors in the Mental Health Agreement are detailed and voluminous and therefore not consistent with promoting modern and efficient organisational structures or work practices. It submits this very issue is recognised in the Mental Health Agreement at clauses 96 and 14, with an express requirement for the parties to modernise the classification descriptors. The VHIA also challenges the characterisation by the HSU and Mr Healey of clause 91 of the Mental Health Agreement as a “protection” for mental health nurses providing mental health services. It maintains each of the HSU witnesses will continue to be covered by the replacement Mental Health Agreement and that in respect of an ED Hub, clause 91 has no application because while it refers to minimum staffing requirements for specified wards or services, including “inpatient services” and “inpatient units”, the DHHS Guidelines define the core functions of an ED Hub as a non-admitted service, a short stay unit and an assertive outreach. The VHIA submits that an ED Hub is not, therefore, an “inpatient unit” or any other type of ward, unit or service described in clause 91. It argues that if the HSU’s construction was adopted and mental health nurses working in the ED Hub were covered by the Mental Health Agreement, none of the provisions in clause 91 would apply, such that there would be no apparent loss of purported “protection” if mental health nurses working in the ED Hub are covered by the Nurses Agreement. The VHIA submits that if, however, an ED Hub was covered by the Mental Health Agreement and clause 91 was found to have application, a level of organisational complexity and inflexibility would ensue that would be inconsistent with the highly dynamic and flexible environment it claims is necessary for an efficient and effective ED.

3.4 Existing Coverage

(d) the existing coverage of the Nurses Agreement and the Mental Health Agreement

The Nurses Agreement

[287] Clause 5.1(b) of the Nurses Agreement provides that it covers the Employees as defined in subclause 4.1(o) of the Agreement. Clause 4.1(o) provides that Employees means a Registered Nurse, Midwife, or Enrolled Nurse. Under cl 4.1(ii) Registered Nurse means:

“A person registered in Division 1 on the Register of Nurses or a person registered as a Midwife on the Registrar of Midwives of the Nursing and Midwifery Board of Australia established under the Health Practitioner Regulation National Law Act 2009, but does not include a Registered Nurse who is employed solely or predominantly in the provision of public mental health services” (our emphasis).

[288] The Nurses Agreement therefore does not include in its coverage mental health nurses who are engaged solely or predominantly in the provision of mental health services. The HSU submits the Nurses Agreement defines its coverage by reference to the vocation of the employees covered, that is, by the work they are employed to do. In the same vein, it asserts mental health nurses are excluded based on the work they are employed to do.

[289] ‘Public mental health services’ is not defined in the Nurses Agreement.

The Mental Health Agreement

[290] As outlined in Clause 9.1(i) of the Mental Health Agreement, an Employee is defined in as:

“A person employed by an Employer and engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement” (our emphasis).

[291] Mental Health Services is defined in the Mental Health Agreement at cl 9.1(t) as:

“the delivery of human services concerned with the prevention of mental illness and the assessment, treatment, rehabilitation, maintenance and support of those persons who may be at risk of or suffering from mental illness or psychiatric disability by Employers listed in Schedule 1.”

[292] Mental health nurses come within the definition of Employee in the Mental Health Agreement when engaged solely or predominantly in the provision of Mental Health Services and covered by a classification within the agreement, namely, Registered Psychiatric Nurse (See section 2, Part H of the Mental Health Agreement). A Registered Psychiatric Nurse is defined in cl 9.1(cc) of the Mental Health Agreement as:

“a person employed by an Employer and classified in accordance with clause 99, and registered as a Registered Nurse in the Register of Nurses of the NMBA [Nursing and Midwifery Board of Australia] established by the HRP Act [the National Law].”

3.4.1 HSU Submissions

[293] The HSU claims the effect on mental health nurses of the interaction between the Nurses Agreement and the Mental Health Agreement is that when mental health nurses are working in public hospitals, they are covered by the Mental Health Agreement. It is claimed by the HSU that this has been the situation since the first mental health agreement in 1997.

[294] The HSU submits the distinction between general and mental health nurses, is grounded in occupational reality, and arises from the different qualifications, experience, training, and duties of mental health nurses compared to general nurses. It argues the changes in the Replacement Nurses Agreement are a significant departure from the long-standing status quo which, if made, will have significant consequences for mental health nurses in Victoria.

Coverage is determined by reference to how work is organised and the duties of employee

[295] The HSU submits that the VHIA and the ANMF have framed the debate about coverage as a binary choice between “organisation” and “duties”. According to the HSU, this is a false dichotomy. The HSU’s position is that a proper reading of the coverage clauses in both agreements provides that a Registered Nurse employed by an employer covered by the Mental Health Agreement (i.e. the organisation) and engaged solely or predominantly in the provision of public mental health services in a classification in the Mental Health Agreement, which for the purposes of this dispute is relevantly the RPN classification (i.e. her or his duties), is excluded from coverage under the Nurses Agreement, and is covered by the Mental Health Agreement. In other words, coverage under the Agreements is determined not solely by reference to organisation or duties, but by a composite of the two.

[296] The HSU says this composite analysis is the only workable construction of the coverage clauses of the Agreements and it is the only analysis which properly takes into account the history of the Agreements, the words of the relevant clauses, and the means by which public mental health services are delivered in the State of Victoria pursuant to the Mental Health Act.

[297] The HSU argues that the starting point is that the Nurses Agreement, at clause 4.1(ii), presently covers all Registered and Enrolled Nurses, unless they are employed solely or predominantly in the provision of public mental health services. As to this exception, the HSU submits:

•  The phrase “public mental health services” is not defined in the Nurses Agreement, but there is no real confusion about the meaning of the phrase in this context, such that the words “… in the provision of public mental health services” must be read as referring to public mental health services delivered by a designated mental health service, within the meaning of that term in s.3 of the Mental Health Act, and by an employer covered by the Mental Health Agreement;

•  This construction of “public mental health services” in the Nurses Agreement is supported by the history of the two agreements, which demonstrates that there has never been any overlap in coverage between the Agreements.

•  The original precursor to the Mental Health Agreement arose from demarcation agreements between the ANF and the HSU whereby the parties agreed to create a separate industrial instrument to cover, relevantly, psychiatric nurses, which would operate to the exclusion of the Nurses Award. The intention was that the psychiatric nurses excluded from the Nurses Award would fall to be covered by a new certified agreement for that purpose.

•  The current Agreements operate in the same way, with the exclusion in the Nurses Agreement carving out a particular type of work from coverage – being a person “employed solely or predominantly in the provision of public mental health services” – which is in turn picked up by the terms of the Mental Health Agreement, which refer to employment of a person “by an Employer and engaged solely or predominantly in the provision of Mental Health Services”.

•  Because the employers covered by the Mental Health Agreement are also covered by the Nurses Agreement, coverage cannot be determined solely by reference to the identity of the legal entity providing public mental health services and so it is also necessary to look at the type of services provided by the entity, and the duties performed by the employees engaged by that entity.

•  A registered nurse is covered by the Mental Health Agreement if, per clause 9.1(i), she or he is “a person employed by an Employer and engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement”.

•  The coverage clause contains the following criteria:

•  the nurse is employed by an Employer named in the Schedule to the Mental Health Agreement;

•  she or he is engaged solely or predominantly in the provision of Mental Health Services, within the meaning of that term in the Mental Health Agreement; and

•  in doing so, she or he is employed and engaged in a classification/occupation with the Agreement.

•  “Mental Health Services” is defined in cl 9.1(t) of the Mental Health Agreement as, relevantly, the delivery of those services “by Employers listed in Schedule 1” to the Mental Health Agreement. There are 17 Employers listed in the Schedule to the Mental Health Agreement. They are all designated mental health services under the Mental Health Act.

[298] The HSU says it follows from the above analysis that the exception in the Nurses Agreement, including the reference to “public mental health services” is a reference to the employers in the Mental Health Agreement.

[299] The HSU also submits that the task of construction cannot start and end with the identification of the employer because the mental health service providers have no separate legal identity or existence from the hospitals and health services. Instead, public mental health services are delivered by each hospital or health service through a structure that reflects the legal obligations of the hospital or health service under the Mental Health Act. In order to understand this, the HSU says it is necessary to address the Mental Health Act, how it imposes an organisational structure on public hospitals and health services entrusted with the delivery of mental health services in the public sector, and how that relates to determining coverage under the Agreements as part of the context for the interpretation exercise.

The Mental Health Act

[300] As has been outlined above, the HSU argues that because the employers covered by the Mental Health Agreement are also covered by the Nurses Agreement, it is necessary to identify some distinguishing feature of those employers to ascertain coverage. It submits the distinguishing feature is supplied by the separate organisational structure imposed by the Mental Health Act (and its predecessors) and that this position is commonly understood by all parties including the VHIA and the ANMF.

[301] The HSU says that in addition to the organisational structure of the designated mental health service, it is necessary for the employee to be engaged solely or predominantly in the provision of mental health services (i.e. the services provided by the designated mental health service) in a classification or occupation within the Agreement. The relevant occupation is Registered Nurse, and the principal classifications for nurses set out in clauses 99 and 100 of the Mental Health Agreement are RPN or PEN. It is not disputed that the title ‘Registered Psychiatric Nurse’ exists for the purpose of the Mental Health Agreement only and is not a category of official registration for nurses.

[302] The HSU submits that the way in which psychiatric services are provided in an emergency setting illustrates the point that coverage of nurses under the Mental Health Agreement is dependent on both the way the work is organised, and the duties of the employees. The HSU asserts there is no dispute between the parties that mental health nurses provide psychiatric care to and in hospital EDs via a number of programs, including EPS, EMH and ECATTs, and that nurses doing so are properly covered by the Mental Health Agreement, and will continue to be so covered in support of its proposition that it is not just the setting in which work is performed, but the nature of the work, that is relevant to determining coverage. The HSU relies on Mr Gilbert in cross-examination agreeing that there is a strong precedent that mental health clinicians working in EDs are covered by the Mental Health Agreement, 108 and the acceptance that non-mental health nurses working in the EDs are covered by the Nurses Agreement.

No evidence of any need for ‘clarification’

[303] The HSU submits that the proposed amendments to the Replacement Nurses Agreement and the Replacement Mental Health Agreement are advanced on the alleged need to ‘clarify’ the coverage clauses under the present Agreements. The HSU submits that no clarification is necessary.

[304] The HSU proffers that the only substantive evidence that was belatedly advanced by VHIA on the need for clarification was that contained in the Supplementary Statement of Stuart McCullough where he referred to a dispute which occurred in 2012. The HSU submits that this is not evidence of a pressing level of uncertainty about coverage that now calls for a rewrite of a long-standing prescription.

[305] In any event, the HSU says that particular dispute was not about the work which the mental health nurses were doing, but rather about the proper characterisation of the unit in which the work was being performed. This, it says, is apparent from the documents attached to Mr McCullough’s statement. 109 Indeed, the HSU argues that this is precisely the sort of dispute that will arise if the changes which VHIA and ANMF seek, are approved. That is, disputes about the proper characterisation of the “service, department, unit or program” as an entity or structure which does or does not provide mental health services, and if so, as was the case with the Oak Unit at Barwon, whether that is overridden by the character of the entire establishment/service. The HSU says that the dispute at Barwon Health supports the HSU’s submission that the proposed changes are problematic and will not avoid coverage disputes.

[306] The HSU challenges the evidence of Mr Gilbert, maintaining there is nothing in Mr Gilbert’s evidence that allows the Commission to form any view as to whether the alleged disputes have anything to do with the issues in dispute in this arbitration. According to the HSU, the Barwon Health dispute amply demonstrates the risk of proceeding in the absence of a clear picture of the issues involved in the alleged disputes. For both of these reasons, the HSU submits the Commission should set aside Mr Gilbert’s evidence of these alleged disputes.

[307] According to the HSU, the above analysis demonstrates that coverage under the Nurses Agreement and the Mental Health Agreement is determined by applying orthodox principles of construction to the exception outlined in the Nurses Agreement. That exception applies where a registered nurse is engaged solely or predominantly in the provision of public mental health services. The HSU says the latter phrase refers to the services provided by designated mental health services (within the meaning of the Mental Health Act) which are also employers providing Mental Health Services (within the meaning of the Mental Health Agreement). Because those employers are the same legal entity as employers under the Nurses Agreement, it is necessary to have regard to a sub-set of medical services provided by the employer, and the duties performed by registered nurses engaged in providing that sub-set of services. If a registered nurse is engaged by that entity, and is classified in a classification or occupation within the Agreement, then she or he is covered by the Mental Health Agreement. If not, she or he is covered by the Nurses Agreement.

[308] The HSU says it follows that there is no credible reason for changing the long-standing scope provisions appearing in the current Agreements, and this should weigh heavily in the determination of this arbitration.

3.4.2 ANMF Submissions

[309] The ANMF says the current “coverage” of the Nurses Agreement may be summarised as follows:

(a) The Nurses Agreement applies to the Employers as defined in subclause 4.1(p), all Employees as defined in subclause 4.1(o) and each of the Unions named by the Commission as covered in clause 5;

(b) “Employers” are then set out in Appendix 1 to the agreement;

(c) “Employees” are defined to include “Enrolled Nurse” and “Registered Nurse”;

(d) “Enrolled Nurse” is defined by reference to the relevant register under the Health Practitioner Regulation National Law 2009 but importantly excludes “a person employed solely or predominantly in the provision of public mental health services” (per clause 4.1(q)); and

(e) “Registered Nurse” is also defined by reference to the relevant register under the Health Practitioner Regulation National Law 2009 and also excludes “a person employed solely or predominantly in the provision of public mental health services” (per clause 4.1(ii)).

[310] The term “public mental health services” is not presently defined in the Nurses Agreement. However, having regard to the terms of the Mental Health Agreement, the references to the provision of “public mental health services” must be construed as a reference to the provision of services in a discrete organisational sense by the employer as distinct from the duties of the employees. The ANMF submits such a construction is also supported by the inclusion of the word “public” in the term “public mental health services” because that word plainly refers to the nature of the service in an organisational sense, rather than an occupational sense. The ANMF argues the alternative, occupation-based, construction proposed by the HSU does not factor in the reference to this word in the phrase “public mental health services” in the Nurses Agreement. It is further argued by the ANMF that the word “provision” in the phrase “employed solely or predominantly in the provision of public mental health services” in clauses 4.1(q) and 4.1(ii) also points to the test for coverage being organisational in nature. The reference to a person “employed” in the “provision” of mental health services (as opposed to, for example, “employed” to “perform” mental health services) must be taken, submits the ANMF, to be indicative of coverage being determined by reference to the organisational structure for the component of a relevant employer providing mental health services.

[311] It is submitted that in propounding a duties-based construction of the coverage clause, the HSU fails to have regard to the references in the Nurses Agreement to the ratio requirements of the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 (Vic) (Safe Patient Care Act) which are expressly stated in that Act not to apply to wards predominantly utilised for the care of persons being treated for a mental illness. The ANMF argues that this too indicates that the ‘mental health services’ exclusion in the Nurses Agreement extends to distinct mental health organisational settings (such as “wards”) rather than particular duties.

Text of the Mental Health Agreement

[312] The ANMF references the Mental Health Agreement as covering the employers, employees and each of the unions named by the Commission as covered by the Agreement and that “Employer” means any of the employers listed in Schedule 1. The ANMF notes:

•  the 17 named Employers therein are entities established under the Health Services Act 1988 (Vic) and each of these Employers is a “designated mental health service” under the Mental Health Act;

•  “Employee” is noted as being defined to mean a person employed by an Employer and who is “engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement” (cl 9(1)(i)); and

•  The Mental Health Agreement contains a definition of “Mental Health Services/ Psychiatric Services” in cl 9.1(t) which is as follows:

“The delivery of human services concerned with the prevention of mental illness and the assessment, rehabilitation, maintenance and support of those persons who may be at risk of or suffering from mental illness or psychiatric disability by employers list ed in Schedule 1.”

[313] The ANMF argues that the fact that the definition of “Mental Health Services” centres on the “delivery of human services” by one of the 17 employers covered by the Mental Health Agreement makes clear that it is concerned with the organisational aspect of the provision of the relevant services and this is particularly so, given that each of the 17 employers providing the services is a “designated mental health service” within the meaning of the Mental Health Act. It further argues that the coverage expression in the Mental Health Agreement “engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement” in the definition of Employee has two elements: engagement in the employer’s industry of Mental Health Services and employment in an employee classification/occupation in the Mental Agreement. The inclusion of these elements emphasises the organisational character of the reference to Mental Health Services.

[314] The ANMF describes the classifications of RPN and PEN as the relevant nursing “classification/ occupation within the Agreement”. It relies on the definitions for these two roles, including the following clarification: “This definition is intended for use as an industrial classification and for the purpose of this agreement only, and does not imply specialist registration. The relevant qualification applicable is dealt with under the HRP Act.”

[315] The ANMF notes clauses 99 and 100 of the Mental Health Agreement further describe these classifications/occupations but says that, as made clear by clauses 9.1(bb) and 9.1(cc), the classifications/occupations regarding RPNs and PENs are intended for use as an industrial classification and for the purpose of the Mental Health Agreement only, and do not imply specialist registration. The ANMF argues this much was also accepted by Mr Healey in respect of clause 99. 110

[316] Additionally, the ANMF submits the RPN classification provisions of clause 99 and clause 100 support the construction of the term “Mental Health Services” in the organisational sense by referring to working as part of a “Psychiatric Nursing team” (clause 99.12(b)(ii)) and referring to work within “mental health settings” (see cl 99.5). So too, it says, does the PEN classification, which refers to working “as part of the specialist mental health nursing team, under the supervision of an RPN” (clause 100.1(a)).

[317] The ANMF further submits the organisation rather than duties-based construction of the phrase “Mental Health Services” is also supported by clause 99.3 which states:

“Within Mental Health Services, it is recognised that mental illness may occur at any stage in life and is manifested through behavioural disorders that may result from an imbalance or change occurring in the physical, emotional, psychological or social state of an individual in the context of his or her environment.” (emphasis added)

[318] Similarly, it submits references to a position called “Mental Health Service Manager” in the Mental Health Agreement point to the term “Mental Health Services” being distinct organisational settings, which are capable of being “managed”.

[319] The ANMF submits the HSU’s original construction of the coverage clauses based on the supposed vocational or occupation reality of “mental health nurses” has no textual or contextual support.

[320] Relevantly, the ANMF says the Mental Health Agreement, like its predecessors, does not apply exclusively to “mental health nurses”. It is an industry agreement which covers employees of specific Employers engaged solely or predominantly in the provision of “Mental Health Services”. The ANMF relies on the Mental Health Agreement also applying to other employees in the Employers’ Mental Health Services besides “mental health nurses”, such as Health Professionals (section 3, schedule 5); Health and Allied Services Employees (section 4, schedule 7); and Management and Administrative Employees (section 5, schedule 6).

[321] The ANMF argues this supports its construction of coverage in the two Agreements, whereby the Mental Health Agreement covers employees in organisationally distinct mental health services rather than employees engaged in mental health duties and claims were it otherwise, the consequence would be to exclude from the definition of “Employee” in the Mental Health Agreement all those employees who are not engaged in direct care as a “mental health nurse”.

[322] The ANMF contends the HSU has not advanced any adequate response to the gap in coverage resultant from its proposed duties-based construction and says the reliance of the HSU on the definition of “Mental Health Services/Psychiatric Services” in clause 9.1(t), which includes “the assessment, rehabilitation, maintenance and support” of mental health patients, does not supply the answer. Nor, argues the ANMF, can this problem be cast aside on the basis that this proceeding is concerned with nurses. It cites the example of an employee presently covered by schedule 7 to the Mental Health Agreement whose role involves basic food preparation and cleaning and general maintenance and argues that it cannot be suggested that she or her is engaged solely or predominantly in the provision of mental health services. The ANMF submits the fact that the HSU’s duties-based construction would exclude this worker (and others presently covered by the Mental Health Agreement) from coverage exposes the fundamental flaw in that construction.

[323] The ANMF also submits that adopting a duties-based construction of “public mental health services” in the definitions of “Enrolled Nurse” and “Registered Nurse” in the Nurses Agreement would ultimately exclude from coverage of both agreements those “mental health nurses” who are not employed by one of the employers party to the Mental Health Agreement but who perform solely or predominantly mental health duties. The ANMF submits the HSU’s purported response to this additional gap in coverage does not supply an adequate answer and submits this, and the fact that such a construction goes against the text and context and purpose of the two Agreements, demonstrate that the duties-based construction is wrong.

[324] The ANMF submits there is no support in the Mental Health Act (or, indeed, in the text of the two agreements, construed in context) for any of the variants of the HSU’s proposed new construction of the applicable coverage clauses. It argues the regulatory features of the Mental Health Act do not disclose any organisational structure for the provision of mental health services referable to the “designated mental health service” as a whole. Further, it says no organisational “line of command” is disclosed by the provisions of the Mental Health Act relied on by the HSU.

[325] The ANMF firstly argues that none of the employers in Schedule 1 to the Mental Health Agreement are, as a whole, organisationally dedicated solely or predominantly to the provision of public mental health services.

[326] The ANMF submits it is relevant that s.3(1) of the Mental Health Act defines a “designated mental health service” as follows:

(a) a prescribed public hospital within the meaning of section 3(1) of the Health Services Act 1988; or

(b) a prescribed public health service within the meaning of section 3(1) of the

Health Services Act 1988; or

(c) a prescribed denominational hospital within the meaning of section 3(1) of the Health Services Act 1988; or

(d) a prescribed privately-operated hospital within the meaning of section 3(1) of the Health Services Act 1988; or

(e) a prescribed private hospital within the meaning of section 3(1) of the Health Services Act 1988 that is registered as a health service establishment under Part 4 of that Act; or

(f) the Victorian Institute of Forensic Mental Health;91

(emphasis in original)

[327] The ANMF submits that each of the 17 employers in Schedule 1 to the Mental Health Agreement (who are also included within the list of 125 employers in Appendix 1 to the Nurses and Midwives Agreement) are, as a whole, a “designated mental health service” within the meaning of s 3(1) of the Mental Health Act: see s 5(1) and Schedule 1 of the Mental Health Regulations 2014 (Vic). However, they each deliver a range of modern medical services through a variety of organisational components (including discrete organisational components dedicated to the provision of mental health services).

[328] Secondly, the ANMF observes the chief psychiatrist is appointed by the Secretary of the DHSS and is not part of any discrete organisational structure within the “designated mental health service” itself (per s 119 of the Mental Health Act). The ANMF relies on the chief psychiatrist’s annual report for 2018- 2019 confirming that the role is concerned with clinical rather than organisational oversight, highlighting that the chief psychiatrist’s message refers to the “collaborative approach to clinical leadership” adopted with mental health service providers. The report also refers to s.120 of the Mental Health Act and reflects that provision’s reference to the role relevantly being “to provide clinical leadership and expert clinical advice to mental health service providers in Victoria”. It also refers to s 121 of the Mental Health Act which describes the functions of the chief psychiatrist in terms that are not organisational in nature; and it refers to the chief psychiatrist providing guidelines and advisory notices, and to the chief psychiatrist’s functions in respect of deaths as being to identify systemic and state-wide issues and provide guidance. The ANMF submits that neither the Mental Health Act nor the role of the chief psychiatrist as described in the annual report reveal that the chief psychiatrist is involved in any organisational sense in the provision of mental health services by any of the Employers listed in Schedule 1 to the Mental Health Agreement.

[329] Thirdly, the ANMF argues that the “authorised psychiatrist” referred to by the HSU does not sit atop any discrete organisational structure for the provision of mental health services by the employers party to the Mental Health Agreement. It observes the appointment of an “authorised psychiatrist” by the “designated mental health service” is governed by s 150 of the Mental Health Act, which provides:

(a) The governing body of a designated mental health service must appoint a psychiatrist as an authorised psychiatrist for the designated mental health service.

(b) The governing body of a designated mental health service may appoint as many authorised psychiatrists as the designated mental health service requires.

(c) An authorised psychiatrist appointed under this section has the functions, powers and duties conferred on an authorised psychiatrist by or under this Act or any other Act.

(d) The governing body of a designated mental health service must notify the chief psychiatrist and the Tribunal of an appointment made under this section within 5 business days after the appointment is made.

[330] The ANMF submits the “authorised psychiatrist” is not described in the Mental Health Act as having any specific managerial or organisational oversight with respect to the provision of mental health services. It says s 150(2) provides that the “designated mental health service” may appoint as many authorised psychiatrists as it requires and that pursuant to s 151, an authorised psychiatrist may delegate their powers and functions to other psychiatrists, among others. The ANMF relies on evidence from Mr Morgan regarding the arrangements at Eastern Health:

“As an authorised psychiatrist, the psychiatrist has to review the cases after they've been placed on assessment order, or to approve or otherwise, any kind of restraint or seclusion of a patient under an assessment order. How that works in practice though is that an authorised psychiatrist is allowed to delegate his authority, or their authority, to work with a psychiatrist that works within the mental health service of the health network.

…

I understand that every psychiatrist that works for Eastern Health's mental health program is delegated to act as the authorised psychiatrist.” 111

[331] The ANMF submits it follows that, as a matter of practice, the “authorised psychiatrist” – or indeed any number of persons delegated the powers of the “authorised psychiatrist” – cannot be described as being part of any “line of command” referable to a distinct organisational setting. It submits that the key point is that each of the Employers in Schedule 1 to the Mental Health Agreement is a “designated mental health service” under the Mental Health Act for the purposes of the regulatory scheme set up by the Mental Health Act, and nothing more. The ANMF says the Mental Health Act does not impose any discrete organisational structure with respect to the provision of mental health services by a “designated mental health service” (being the relevant Employer at large) and leaves it to the Employers to determine the manner in which specific mental health services are to be organised within the overall public health service.

[332] The ANMF submits that in that regard, the terms of the Mental Health Act speak for themselves and it follows that the line of questioning pursued by the HSU on cross-examination with respect to certain witnesses’ subjective opinions of whether the Mental Health Act does, or does not, support the HSU’s proposed construction of the coverage clauses in the two agreements is of no weight whatsoever. In particular, to the extent that Mr McCullough or Mr Nagle of the VHIA accepted certain objectively incorrect propositions supportive of the HSU’s position under cross-examination, the ANMF argues those subjective expressions of opinion cannot take precedence over the proper operation of the provisions of the Mental Health Act. The ANMF contends the HSU witness, Associate Professor Hamilton, showed a lack of clear understanding as to the meaning of the term “designated mental health service” under the Mental Health Act. It says she gave evidence that “mental health services or designated mental health services very particularly are constructed within public health settings really to the requirements of the Mental Health Act”. 112 Associate Professor Hamilton also gave evidence that “The designated mental health service is an organisational structure inside a health service…:”.113

[333] In any event, to the extent relevant, the AMNF submits the emphasis ultimately placed by Mr McCullough on the critical need to isolate whether a person works as part of an “organisational component” covered by the “designated mental health service” reflects the correct approach to the construction of the coverage clause in the Mental Health Agreement. Similarly, it submits Mr Nagle’s view that “mental health services refers to the organisational component of the structure from which mental health services are delivered” reflects the way in which, on a proper construction, the delineation of coverage between the two agreements operates. The ANMF submits the evidence given by Mr Gilbert of the ANMF as to his subjective understanding of the operation of the Mental Health Act accorded with the way in which the Act actually operates on its terms: it is concerned with obligations imposed on a “designated mental health service” with respect to patients, rather than imposing any organisational structure on the relevant public health service.

[334] The ANMF submits the HSU’s attempted reliance on the arrangement that applies to “mental health nurses” working in PAPUs, EPS or ECATT is inapt because each of these is operated as an organisationally distinct component of the Employers who are each a “designated mental health service” under the Mental Health Act. It contends the HSU’s own evidence shows that these services operate as distinct, specialist mental health services involving multi-disciplinary teams of mental health clinicians, including nurses, social workers and psychologists. Ultimately, the ANMF submits the HSU’s proposed new construction of the coverage provisions fails to identify any truly discernible organisational component and instead improperly conflates organisational and vocational tests in relation to the term “mental health services”.

[335] The ANMF asserts nurses specialising in a wide range of nursing specialties are currently covered by the Nurses Agreement and in particular, there are a number of inpatient AOD units which employ nurses with occupational specialisations in alcohol and other drugs who are covered by the Nurses Agreement. It gave the example of the nurses working in the AOD inpatient unit at Western Health all being covered by the Nurses Agreement.

[336] The ANMF submits this broad coverage under the Nurses Agreement underscores the fact that, in accordance with the status quo, coverage under the Mental Health Agreement is envisaged as extending to employees working in a distinct “Mental Health Service” of one of the 17 employers covered by that agreement (which employees extend beyond “mental health nurses” to others employed in relevant classifications by the employers).

[337] The ANMF submits that on a proper construction, the terms of the Nurses Agreement and the Mental Health Agreement support its position that the Nurses Agreement defines coverage by reference to “a particular kind of work” within the meaning of s 256A(4)(b) of the Act (i.e., the work of nurses and midwives) whereas the Mental Health Agreement defines coverage by reference to a particular industry or part of an industry within the meaning of s 256A(4)(a) (i.e., organisationally distinct “Mental Health Services”).

[338] The ANMF further submits the proposed clarifications to the description of coverage in the two replacement agreements does not change existing coverage or the characterization of the respective coverages referred to above, i.e., that the Nurses Agreement defines coverage by reference to a particular kind of work and the Mental Health Agreement defines coverage by reference to an organisational component referable to a particular industry or part of an industry.

3.4.3 VHIA Submissions

[339] The position of the VHIA is that it is clear that coverage is determined by reference to the nature of the service in which the nurse is employed.

[340] The VHIA submits the necessary starting point for the proper construction of the current coverage clauses is the text of the two agreements. In this regard it references clause 5.1 of the Nurses Agreement, which outlines that it is expressed to cover:

(a) the Employers as defined in clause 4.1(p);

(b) all Employees as defined in clause 4.1(o); and

(c) each of the unions named by the Commission as covered by the Nurses Agreement.

[341] Further, “Employer” are defined as each of the health sector agencies listed in Appendix 1. The definition of “Employee” includes a “Registered Nurse” and an “Enrolled Nurse” who are “employed by an employer covered by the Nurses Agreement”. The VHIA says the definitions of “Enrolled Nurse” and “Registered Nurse” relevantly exclude a person or a registered nurse “employed solely or predominantly in the provision of public mental health services.”

[342] The VHIA submits that while the phrase “public mental health services” is not defined in the Nurses Agreement, having regard to the historical context and the definition of mental health services in the Mental Health Agreement, the phrase “public mental health services” refers to the separate and distinct components of public health services which deliver mental health services. It asserts the HSU’s construction, which is primarily focused on duties, ignores the use of the terms “employed”, “provision” and “public”. It says each of these strongly suggest that it is the component of the hospital which is the subject providing mental health services and not the individual employee.

[343] The VHIA contends the phrase “employed…in the provision” is clearly suggestive of an employee employed by a component in a hospital that is providing public mental health services. The VHIA argues it is a health service which “provides” services and not an individual employee, maintaining that an individual is usually described as “performing” duties and that this interpretation is supported by the Macquarie Dictionary definition of “service” which includes, “the providing of, or provider of, a public need, such as communications, transport, etc.”

[344] The VHIA submits the term “public” can logically only refer to the type of service delivered by the hospital on an organisational level and has no work to do under a duties based construction.

[345] As to the Mental Health Agreement, the VHIA highlights that at clause 10.1, it is expressed to cover:

(a) Employers;

(b) Employees; and

(c) the unions named by the Commission as a party covered by the Mental Health Agreement.

[346] “Employer” is defined as meaning any of the employers listed in Schedule 1 of the Mental Health Agreement. There are 17 and each of them are designated mental health services for the purposes of the Mental Health Act.

[347] “Employee” is defined as “a person employed by an Employer and engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement.”

[348] The VHIA submits clause 9.1(i) of the Mental Health Agreement sets out three gateways to coverage:

1) First, the employee must be employed by one of the 17 employers listed in Schedule 1 to the Agreement.

2) Secondly, the employee must be engaged solely or predominantly in the provision of Mental Health Services.

3) Thirdly, the employee must be in a classification/occupation within the Agreement.

[349] The VHIA submits the HSU’s construction equates an employee’s duties with the phrase “mental health services” whereas the third gate deals with duties. The VHIA submits that on the HSU’s construction, the second gate, the “mental health services”, has no work to do.

[350] The VHIA observes the phrase “Mental Health Services” is defined as follows:

“the delivery of human services concerned with the prevention of mental illness and the assessment, treatment, rehabilitation, maintenance and support of those persons who may be at risk of suffering from mental illness or psychiatric disability by Employers listed in Schedule 1.” (VHIA emphasis added)

[351] The VHIA asserts that it is clear from the text it has highlighted that coverage under the Mental Health Agreement is limited to employees who are employed within a mental health service delivered by an employer in Schedule 1, that are also designated mental health services under the Mental Health Act. It submits it is clear from the language adopted in the coverage clause that it is the nature of the service delivered by the employer which is determinative and not whether or not a specific individual employee is performing mental health duties or a mental health role. Further, given the Mental Health Agreement is limited to employees of employers listed in Schedule 1, the Mental Health Agreement does not cover mental health nurses working in any public hospital.

[352] The VHIA argues that the Mental Health Agreement, read as a whole, further supports its (and the ANMF’s) construction of the phrase “Mental Health Services”. It relies on:

(a) the relevance of the organisational component within which the work is performed demonstrated by the classifications set out at clause 99 of the Mental Health Agreement. Those classifications make plain that a RPN works within a Psychiatric Nursing Team or a “mental health setting” and that Enrolled Nurses work as part of the “mental health team”; 114

(b) the term “services” is elsewhere adopted to refer to the discrete service of the hospital or health service: e.g. to “bed based services” (cl 78.2, 89.1(a) and 89.5) and “in-patient services” (cl 91.1(a), 91.2(b); 115

(c) specific references to “Area Mental Health Services”, which it says must be a reference to the organisational component (cl 91.5(a) and 91.5(b)); 116

(d) the definition of Consultation Liaison Nurse at clause 99.15(m) referring to “mental health services (public, private, hospital and community)”. 117 It says the terms in brackets can only refer to the health services’ or hospitals’ services. The same can be said for the definition of a Community Nurse – Developer of Programs, which refers to programs for a defined catchment area, “which often might be geographically distant from other psychiatric services (eg. a country town);”118

(e) the classifications in respect of a Psychiatric Services Officer which describe working “within a unit or service” and maintaining links “between the service and client’s family, friends and where applicable guardians” (cl 101.3(c)). 119

(f) the definition of a Department Head in clauses 143 and 195, which it says clearly contemplate that a service is an organisational component of a hospital: “Department Head means a person responsible for a department or section of the hospital or health service covered by this Agreement.” 120

(g) the terms “service”, when used as a term interchangeable with “departments” or “units”: “departments/units/services” and “service/department”. 121

(h) the role statement of a senior psychiatric nurse in Schedule 3, which it says refers to a “Mental Health Service Manager” thereby suggesting that there is a service which is to be managed. 122 Further, the role statement’s references to nursing leadership “within mental health service” and representation of the psychiatric nursing workforce “within and to the management of the mental health service and the management of the broader health service within which psychiatric services are delivered.”123

(i) the classification for Consumer Consultants and Carer Consultants in Schedule 7, which it says refers to “the lived experience of mental health services”, the presentation of consumer perspectives “to mental health services”, communicating “Mental Health Service policies and processes” to clients and working “with mental health service staff”. 124 The VHIA submits each of these references must be to the discrete mental health service of the hospital.

[353] The VHIA’s position is that the current application of the Nurses Agreement and the Mental Health Agreement demonstrates that coverage is determined by reference to the organisational component through which the employee is employed. It reiterates that registered nurses and enrolled nurses employed by a mental health service provided by one of the 17 employers in Schedule 1 are employed under the Mental Health Agreement and all other registered nurses and enrolled nurses are employed under the Nurses Agreement.

[354] The VHIA submits the phrase “mental health services” is a commonly used term within the mental health sector, and more generally within public health services, to describe the organisational component of the public health care provider through which mental health services are delivered. Further, it asserts that the organisation based construction is clearly demonstrated by the evidence and submissions of the HSU.

[355] The VHIA firstly asserts that the HSU, by its own submission, acknowledges that “the organisational distinction between mental health nurses and general nurses is evidenced by how mental health nurses perform their work in public hospitals, and indeed, is reflected in the respective industrial instruments which apply to the two groups”. 125 It says the HSU witnesses further confirm the well-understood meaning of “mental health services” as referring to the operation of mental health wards and mental health services in hospitals and the community.126

[356] The VHIA then asserts that apart from Ms Gallaher, each of the HSU witnesses, and Mr Morgan, giving evidence on behalf of the ANMF, identified the relevant discrete service, department, unit or program and where that service sat in the organisational structure without any confusion. It summarised the position as follows:

[357] The VHIA submits the Mental Health Agreement properly covers the employees working in the above services having regard to the way in which they are organised and delivered by the relevant public health services.

[358] In respect of Ms Gallaher’s employment, the VHIA says the ED Hub at Monash Health is not yet fully operational and is still only at the early stages of development. It argues she is engaged as a “Behavioural Health Rapid Response Nurse” as part of an “Engage Team” where there is not yet a physical stand-alone space in the ED for the operations of the Hub.

[359] In respect of Ms Gallaher, the VHIA submits as follows:

(a) Ms Gallaher’s position description refers to three lines of reporting: an operational reporting line to the nurse manager, emergency department, a professional reporting line to the Director of Nursing, Mental Health Program and a clinical reporting line to the EPS, Mental Health Program. The relevant department identified in the “Department” section on the first page is the ED. 140 However, the “Department” section on the last page refers to the ED and the Mental Health Program.141

(b) The organisational chart for the ED Hub, provides a “hard” operational reporting line into the ED Mental Health & AOD Response Co-ordinator, which in turn reports to the Director Clinical Operations Emergency & General Medicine and Director of Emergency Medicine with a “dotted” clinical and professional reporting line to the Community Services Manager, who reports into the Mental Health program. 142

(c) The reporting lines are inconsistent with the evidence given by Ms Gallaher. In her initial statement Ms Gallaher stated that she reported to her line manager, Nicole Edwards, who she describes as a “project manager for the Hub” who, in turn, reported to the clinical director of emergency operations, community manager of mental health and the director for mental health services. 143 In her reply statement, Ms Gallaher stated that her line of reporting “for mental health clinical matters” runs through the Coordinator of the Hub to the Director of Nursing, Mental Health Program and to the EPS, Mental Health Program. In evidence in chief, Ms Gallaher stated that her operational and clinical matters run through to Ms Edwards, the ED mental health and AOD response co-ordinator, who has an operational reporting line that sits under the Director Clinical Operations and Director of Emergency Medicine and a clinical reporting line into the Community Services Manager.144

(d) In the broader organisational charts relating to Monash Health, neither the Mental Health Program or the Acute Medicine and Subacute Operations refer explicitly to the ED Hub or the “Engage Team”. As explained by Mr Nagle, in re-examination, this is because the ED Hub is not a distinct component of the ED and forms part of the ED. 145

(e) There were aspects of Ms Gallaher’s evidence which suggested that she is, in reality, performing an EPS function rather than an emergency function as envisaged by the DHHS Guidelines. 146

[360] The VHIA regards Ms Gallaher’s circumstances as an anomaly and submits they should not drive the determination of coverage in this arbitration. It submits the example of Ms Gallaher does not constitute a failure of the organisationally based coverage test. It argues her situation is an example of a service which, in its early embryonic state has attempted to take a pragmatic approach to work through difficulties in the process of establishing the ED Hubs. The VHIA argues the arrangements involving Ms Gallaher are temporary and the ED Hub will not be fully operational until the physical ED Hub has been completed. It should not therefore invalidate the test which has, historically, been applicable and which should continue to be the appropriate test.

[361] The VHIA asserts that the HSU’s primary construction, principally based on the duties performed by the employees, is not consistent with the current application of the Nurses Agreement and the Mental Health Agreement in respect of a number of categories of employees.

[362] In this respect, it firstly refers to non-nursing staff currently covered by the Mental Health Agreement. The VHIA says none of these categories of employees perform clinical “mental health duties” and if coverage under the Mental Health Agreement were based on duties rather than organisational structure, they may be excluded on the basis that they are not performing “mental health duties”. The VHIA accuses the HSU of failing to seriously grapple with the ramifications of employees not performing “mental health duties” and seeking to put the issue to one side, on the basis that the arbitration relates to nurses. The VHIA submits that as the Mental Health Agreement is an industry agreement, any amendment to the definition of “Employee” will not be limited to the nurse classifications.

[363] The VHIA refers to employees performing mental health nursing duties in a mental health service not covered by the Mental Health Agreement, maintaining the 17 employers covered by the Mental Health Agreement are not the only health services who treat patients with mental health conditions. The VHIA asserts it is open for any employer to employ a nurse with specialist mental health qualifications should they have a demand for it and that if a duties based construction were to be preferred, a nurse providing significant or exclusive care to a patient with a mental health condition would potentially be excluded from coverage under any enterprise agreement, unless they were employed by a health service covered by the Mental Health Agreement. The VHIA relies on what it says was unchallenged evidence from Mr Nagle that Corryong Health employs a Mental Health Professional who is a registered nurse providing an integrated mental health service as part of a multi-disciplinary community health team. It was said Corryong Health is not a designated mental health service and therefore not an employer listed in Schedule 1 of the Mental Health Agreement, that the position reports to the Operations Manager – Primary Health and that the employee in question is currently covered by the Nurses Agreement. The VHIA submits that if the HSU’s construction of coverage is accepted, this employee would be excluded both from the Nurses Agreement on the basis that the person performs mental health services on an individual level and the Mental Health Agreement given Corryong Health is not covered by the Mental Health Agreement.

[364] The assertion made by the HSU that its construction does not result in any such nurse being excluded from the Nurses Agreement is rejected by the VHIA. It is suggested by the VHIA that the HSU’s response appears to be premised on the proposition that “public mental health services” in the Nurses Agreement is synonymous with the term “designated mental health services” as defined in the Mental Health Act and that the exclusion therefore only operates to exclude employees employed “solely or predominantly” in a designated mental health service. The VHIA suggests this construction is unworkable because it fundamentally misconstrues the term “designated mental health service” under the Mental Health Act as meaning the mental health program within the hospital or health service. The VHIA submits that on the proper construction of the Mental Health Agreement, the term “designated mental health service” means the whole health service or hospital and is not limited to the specific mental health program. The VHIA makes three final points:

•  equating the term “public mental health services” to “designated mental health service” may result in all Registered Nurses or Enrolled Nurses employed in a “designated mental health service” being excluded from coverage under the Nurses Agreement (and only being covered by the Mental Health Agreement if they are performing “Mental Health Services”);

•  a “designated mental health service” under the Mental Health Act is not limited to the hospitals and health services described in Schedule 1 of the Mental Health Agreement and may, in a declared emergency, include any hospital or health service covered by the Nurses Agreement. If this occurs in respect of an employer not covered by the Mental Health Agreement, it appears that all Registered Nurses and Enrolled Nurses employed by that employer would be excluded from coverage under any enterprise agreement; and

•  the words “solely or predominantly” would have no work to do or alternatively would require the coverage test to be applied across all employers for whom an employee works (which would require employees to provide contemporary employment data to each and every employer for whom they work).

[365] The VHIA submits that only the construction it advances with the ANMF, which defines the term “public mental health service” as services delivered through an employer's organisationally distinct mental health program, completely and comprehensively addresses the potential gaps in coverage. It argues the current application demonstrates the historically accepted approach that agreement coverage is determined by reference to the way the work is organised.

3.5 History

(e) in relation to each of the replacement agreements, the history of the applicable industrial instruments

[366] The HSU submits that it does not appear there are any substantial differences between the parties as to the history of the Nurses Agreement and Mental Health Agreement but rather, that the meaning and interpretation of those events is in dispute. The HSU contends it is artificial to distinguish between the services provided by an organisation from the duties performed by employees engaged by that service and submits the language used in the 1997 agreements reflects the intertwined nature of the issue at hand.

[367] The HSU relies on particular wording in the preamble of the 1997 Agreements. It suggests this wording provided that it was necessary to create a separate and specialist industrial instrument “to regulate the terms and conditions of employment, and the type of work performed in psychiatric services and/or mental health services” (HSU’s emphasis). It also relies on wording in the agreements that they were expressed to cover eligible employees who were “engaged solely or substantially in the provision of psychiatric services and/or mental health services in Victoria” (HSU’s emphasis added). Having regard to this wording, the HSU submits both the nature of the service provided, and the work done by employees in providing that service, were (and remain) critical to defining coverage.

[368] The HSU submits the first certified agreements made following the making of the 1997 Demarcation Agreement were in terms that are very similar, and in some cases identical, to the Mental Health Agreement. The HSU referred to the wording describing scope used in the first certified agreements and then in subsequent agreements was “engaged solely or substantially in the provision of psychiatric or mental health services” until the Victorian Public Mental Health Services Enterprise Agreement 2012–2016, when it was changed to “engaged solely or predominantly in the provision of Mental Health Services” but contends noting turns in this difference.

[369] The HSU submits the proper approach, when reading the Mental Health Agreement and Nurses Agreement together is as follows:

•  All registered and enrolled nurses employed by the Employers in Appendix 1 of the Nurses Agreement are covered by the Nurses Agreement, unless an exception applies.

•  The exception is that the Nurses Agreement excludes from coverage registered and enrolled nurses who are “employed solely or predominantly in the provision of public mental health services”.

•  Although the expression “public mental health services” is not defined in the Nurses Agreement, there is no confusion about what it means. A ‘public mental health service’ is the same (non-corporeal) entity as a designated mental health service under the Mental Health Act, which is consistent with the definition of ‘Mental Health Services’ in the Mental Health Agreement.

•  If mental health services are provided in a public hospital by a ‘public mental health service’ – in any ward, unit, service, program or department, including the ED – then all persons engaged by the mental health service are covered by the Mental Health Agreement. This is precisely the arrangement that applies to mental health nurses working in PAPUs, EPS, ECATT, and similar programs within EDs, and is accepted as correct by the ANMF and VHIA.

•  The Mental Health Agreement covers nurses who are “employed solely or predominantly in the provision of public mental health services” and therefore, nurses who are employed by an Employer in Schedule 1 to the Agreement and who are “engaged solely or predominantly in the provision of Mental Health Services, and who are engaged in a classification/occupation within the Agreement, are covered by the Mental Health Agreement.

[370] The HSU submits that in focusing solely on the organisational distinction between mental health and general medicine services, the ANMF and VHIA have wrongly interpreted the coverage of the Nurses Agreement and Mental Health Agreement and contends the work performed by the employee, and the classification/occupation applicable to that work are both relevant because both focus on the duties of the employee.

[371] The HSU asserts that the argument going to the fact that health professionals, health and allied services employees, and management and administrative employees are also covered by the Mental Health Agreement is irrelevant to this dispute because it is solely concerned with the industrial coverage of mental health nurses working in the ED Hubs and whether they should be covered by the Nurses Agreement. As to the argument that a duties-based construction of the coverage of the Mental Health Agreement would exclude all employees who are “not engaged in direct care as a mental health nurse”, the HSU contends there is no requirement in the Mental Health Agreement that employees provide “direct care” in the provision of mental health service and that the Mental Health Agreement contains a definition of ‘Mental Health Services/Psychiatric Services’ in clause 9.12(t), which includes “the assessment, rehabilitation, maintenance and support” of mental health patients. That concept, the HSU submits, is broad enough to encompass allied services which nonetheless solely or predominantly comprise the provision of mental health services.

[372] The VHIA submits that both the historical application and context of the Nurses Agreement and the Mental Health Agreement (and their relevant predecessors) demonstrate that both the exclusion in the coverage clause of the Nurses Agreement and the coverage clause of the Mental Health Agreement are determined by reference to the organisational component through which the employee is employed.

[373] The VHIA contends the HSU accepts that the history of mainstreaming, the subsequent Federal Court action, and the 1997 Demarcation Agreement between the ANMF and the HSU were premised on the notion that public mental health/psychiatric services were at that time provided in an organisationally distinct way from general medicine health services. 147 It submits it is clear from the HSU’s materials filed in the demarcation dispute in 1997 and the resulting 1997 Demarcation Agreement that the reference to “psychiatric services” described the service transferred as part of the mainstreaming framework and there is no suggestion that the reference to psychiatric or mental health services was limited to the activities or duties of an individual nurse. The VHIA submits that Mr Williams, under cross-examination, accepted that the 1997 Demarcation Agreement, heads of agreement and subsequent 1997 agreements, operated to cover all employees of employers who provided public mental health services148 and that there can be no real dispute that, historically, the delineation of coverage between the Nurses Agreement and its predecessors and the Mental Health Agreement and its predecessors was determined along organisational lines.

[374] The VHIA submits that having regard to the references to “mental health services” in the various Mental Health Agreements to date and the inclusion of the terms “psychiatric nursing services” and “public mental health services” in the various Nurses Agreements since the Nurses (Victorian Public Sector) Multiple Employer Agreement 2004-2007, the references to “psychiatric nursing services” and “public mental health services” are references to the separate and distinct mental health services delivered by the designated mental health services. Further, it says the organisational separation between mental health services and other services has remained and the delineation along organisational lines continues to hold relevance in respect of the Nurses Agreement and the Mental Health Agreement.

[375] The VHIA also relies on the scope of the Safe Patient Care Act, which it says enshrines the nurse to patient ratios in specified wards or beds in public hospitals which were prescribed in the Nurses Agreement, because s.9(2) of the Safe Patient Care Act provides that a ratio does not apply in respect of any “ward” that is being predominantly utilised for the care of persons being treated for a mental illness within the Mental Health Act. In that context, “ward” is defined as a “ward, unit, department or component of a hospital managed by a nurse or midwife who is undertaking…the role of a nurse or midwife unit manager or equivalent” and the Explanatory Memorandum stated that the Bill was not intended to apply “to any mental health wards, departments or services within Victorian public hospitals, health services, publicly operated denominational hospitals or multi purpose services.”

[376] The VHIA submits the scope of the Safe Patient Care Act reflects the historical distinction between the Nurses Agreement and the Mental Health Agreement, defined by reference to the way the work is organised and not by reference to the particular duties or work performed by an individual nurse. Further, it contends that the repeated references to the ratios indicate that the “mental health services” exclusion extends to distinct mental health organisational settings, such as “wards”, rather than duties.

[377] The ANMF submits the history of industrial regulation discloses a long-standing distinction in coverage whereby public mental health services are understood to be a reference to certain distinctly organised services tracing back to separate mainstreamed psychiatric services, and not to the duties or functions of mental health nurses (or any specific locational component). In this regard, the ANMF says the distinction between award-regulated nurses employed by public hospitals and psychiatric nurses (and other classifications) regulated by Public Service Board Determinations prior to deinstitutionalisation and mainstreaming informed the shape of subsequent industrial instruments and regulation. In particular, the ANMF makes reference to both the HSUA’s amended application in the 1997 demarcation dispute and the 1997 Demarcation Agreement and submits these documents proceeded on the basis that references to “psychiatric services” or “mental health services” were to organisationally distinct services transferred in accordance with the mainstreaming policy, and were not centred on the occupational duties of mental health nurses. The ANMF also submits that the first agreements made covering employment in mental health services were not limited to coverage of mental health nurses and covered a whole range of employees, including direct and indirect employees and non-clinical support staff “engaged solely or substantially in the provision of psychiatric and/or mental health services in Victoria”.

[378] The ANMF responded to the HSU’s invocation of the reference in the preamble to the 1997 agreements to the regulation of “the terms and conditions of employment, and the type of work performed in psychiatric services and/or mental health services” in support of its duties-based construction of coverage. The ANMF submits nothing of substance turns on the reference to the “type of work” in circumstances where each certified agreement was an industry agreement which covered the field with respect to employees engaged by the relevant employer in the provision of mental health services. The ANMF also argues that the word “provision” in the phrase “engaged solely or substantially in the provision of psychiatric and/or mental health services in Victoria” is a strong signifier of coverage being referable to the organisational component of “mental health services”. The ASU submits the HSU’s emphasis on the word “provision” in the coverage clause is unexplained and misplaced.

[379] The ANMF also noted the wording describing scope changed from “engaged solely or substantially in the provision of psychiatric or mental health services” to “engaged solely or predominantly in the provision of Mental Health Services” and contends all the subsequent agreements did not apply solely to psychiatric or mental health nurses, but extended to allied health professionals, clerical workers and others. It observed the employers covered by the initial certified agreements and all subsequent Mental Health Agreements were each an “approved mental health service” under the Mental Health Act 1986 (Vic).

[380] As to the various Nurses Agreements, the ANMF submitted they contained exclusions stating they did not apply to employees engaged in the provision of psychiatric/mental health services in the public health sector and when it came to the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016, which set out nurse to patient ratios in certain public hospital wards, it observed these ratios were not to apply in respect of any ward 149 that was being predominantly utilised for the care of persons being treated for a mental illness within the Mental Health Act.

[381] Ultimately, the ANMF submits that there has historically been separate regulation of public mental health services from an industry rather than an occupational or vocational perspective. It maintains that an historical analysis demonstrates that the “mental health services” exclusion in the Nurses Agreement and the coverage term in the Mental Health Agreement operate, on a proper construction, by reference to the way in which public mental health services are, and have been, organised, and not by reference to any purported “occupational reality”. Further, the ANMF maintains that the organisational component is not to be confused with a strictly locational criterion, i.e., the delivery of mental health services from a discrete physical location.

3.6 Mutual Exclusivity

(f) the desirability that coverage of the respective replacement agreements be mutually exclusive

[382] The HSU says all parties agree that it is desirable that coverage of the respective replacement agreements be mutually exclusive. The ANMF and VHIA confirm this. The VHIA says it is for that reason the proposed definition of coverage in the Nurses Agreement refers to employment solely or predominantly in the provision of Public Mental Health Services, which is mirrored in the definition of coverage in the Mental Health Agreement. The ANMF says the agreements operating on the basis of mutually exclusive coverage would be consistent with the historically mutually exclusive coverage and the status quo.

[383] The VHIA also contends that a registered nurse or enrolled nurse should fall within coverage of either the Nurses Agreement or the Mental Health Agreement and that no registered nurse or enrolled nurse should be excluded from both agreements. The VHIA maintains the construction adopted by the HSU would operate to exclude nurses performing “mental health” duties in non-designated mental health services from coverage under either agreement because they would be excluded under the Nurses Agreement by virtue of performing mental health nursing duties and would not be capable of coverage under the Mental Health Agreement (because only employers who are designated mental health services as set out in Schedule 1 are covered under that agreement). The VHIA submits a construction leading to such an outcome is undesirable and should be rejected. The ANMF agrees and proffers that the HSU has failed to provide any adequate solution for the potential adverse consequence of certain employees being excluded from coverage by either replacement agreement were its proposed duties-based construction to be accepted by the Commission.

3.7 Any other Relevant Matters

(g) any other matters that the Commission deems relevant

[384] The HSU firstly submits that it is unclear how mental health nurses presently covered by the Mental Health Agreement will transition to the Replacement Nurses Agreement. It contends that with the two agreements having markedly different classification for registered nurses, there is enormous scope for confusion and disputes over the appropriate classifications for mental health nurses under the Replacement Nurses Agreement, particularly in relation to work value, scope of practice and clinical supervision. As to this, the ANMF submits there is no need to consider the way in which nurses would “transition” and that the HSU has not identified any specific cohort of employees who would “transition” in the event that the Commission gives positive answers to the questions posed in the arbitration. The ANMF says no such transition is envisaged (save for perhaps Ms Gallaher to the extent that Monash Health confirms that its ED Hub will operate within the contemplation of the DHHS Guidelines). Further and in any event, the ANMF says each agreement would operate on its terms as to the question of coverage. The VHIA submits that the organisational approach that has been agreed reflects the status quo and that there will be no change in agreements in respect of mental health clinicians who work in ECAT and Consultation Liaison nurses. Similarly, it maintains the position of mental health nurses working in the AOD sector and ED Hubs will not change.

[385] Secondly, the HSU submits that that the absence of any equivalent in the Replacement Nurses Agreement to Section 2, Part H of the Mental Health Agreement will deprive mental health nurses of the significant benefits they and their employers obtain from those provisions.

[386] Thirdly, the HSU submits that the public interest in the provision of mental health services, encapsulated by the Mental Health Act, is affected by the proposed changes in the Replacement Mental Health Agreement. The HSU submits that to define mental health nurses by the location in which they provide treatment and working without the operational strictures of the Mental Health Agreement is contrary to the public interest.

[387] In response to these propositions, the ANMF submits the HSU’s submissions are premised on an incorrect, duties- based construction of the coverage clause and that the “mental health nurses” are not afforded the “significant benefits” claimed by the HSU under the Mental Health Agreement. The ANMF further says that the Mental Health Act will continue to operate on its terms with respect to registered nurses employed or engaged by a “designated mental health service” irrespective of agreement coverage and no public interest considerations are therefore engaged. The ANMF submits that it is in the public interest that the description of agreement coverage is clarified so that the modern medical services proposed to be delivered in the ED Hubs can be delivered as soon as possible.

[388] The VHIA submits that if the Commission finds that the proposed coverage definitions are appropriate, this will give certainty that the Nurses Agreement covers and applies to registered nurses and enrolled nurses employed in the ED Hubs and the establishment of the ED Hubs will resume. The VHIA submits that any continuing ambiguity in respect of the meaning and application of the coverage clauses will inevitably further delay the establishment of the ED Hubs and deny the broader community of their benefits.

4. Consideration

[389] The proposal of the ANMF and VHIA for the Replacement Nurses Agreement is to amend the definitions of “Enrolled Nurse” and “Registered Nurse” and insert a new definition of “Public Mental Health Services” as follows:

•  “Enrolled Nurse means a person registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 and includes a person:

(i) registered in Division 2 Enrolled Nurses of the Register of Nurses of the Nursing and Midwifery Board of Australia established by the Health Practitioner Regulation National Law Act 2009 with a standard condition “may practise only in the area of mothercraft nursing"; or

(ii) with an equivalent qualification and role as described in subclause 4.1(q)(i) above;

but excludes a person employed solely or predominantly in the provision of public mental health services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’, refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.”

•  “Public Mental Health Services means mental health services delivered on a service, department, unit or program level operated by an employer covered by the Victorian Public Mental Health Services Enterprise Agreement 2016–2020 (or its successor).”

•  “Registered Nurse means a person registered in Division 1 on the Register of Nurses or a person registered as a Midwife on the Register of Midwives of the Nursing and Midwifery Board of Australia established under the Health Practitioners Regulation National Law Act 2009 but does not include a Registered Nurse excludes a person who is employed solely or predominantly in the provision of public mental health services.

In this Agreement, ‘employed solely or predominantly in the provision of Public Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.

Example: a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department providing treatment for people that present with mental health and alcohol and other drugs issues is covered by this Agreement given the work of the relevant department as a whole.”

(changes from the Nurses Agreement are underlined)

[390] For the Replacement Mental Health Agreement, the ANMF and VHIA proposal is to amend the definition of “Employee” as it appears in clause 9.1(i) to read as follows:

“Employee means a person employed by an Employer and engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement.

In this Agreement, ‘engaged solely or predominantly in the provision of Mental Health Services’ refers to the service, department, unit or program of the Employer rather than the duties of the individual employee.”

(changes from the Mental Health Agreement are underlined)

[391] The starting point for our consideration of the agreed questions for this Arbitration is the history of applicable industrial instruments relating to each of the replacement agreements.

(e) in relation to each of the replacement agreements, the history of the applicable industrial instruments

[392] We have noted that in the late 1980s and early 1990s the Victorian Government commenced “de-institutionalisation” and mainstreaming psychiatric services. Prior to the mainstreaming, mental health services in Victoria were delivered through government-run psychiatric residential institutions. Registered psychiatric nurses and psychiatric state enrolled nurses were employed by the State under the Public Service Act 1974 (Vic). Their terms and conditions of employment were regulated by Public Service Board Determinations, including Wage Determinations. Other employees of such institutions similarly were subject to Public Service Board Determinations and other public service instruments.

[393] Registered nurses and enrolled nurses working in public hospitals and other public health services outside mental health services were employed under Victorian Industrial Relations Commission Awards (the Registered Nurses Award and the Hospital and Benevolent Homes Award) until the making of the 1992 Nurses Award.

[394] Mainstreaming resulted in the closure of psychiatric asylums and the establishment of “Area Mental Health Services”. The Area Mental Health Services were geographically based and included the establishment of acute wards and outpatient clinics in public hospitals. Employees of the Area Mental Health Services continued to be employed by the State and were part of the public service. Mainstreaming was facilitated by the use of s.97 of the Mental Health Act (1986) (Vic) by which State employees (Crown employees) would be made available to the Area Mental Health Services but remain subject to the Public Service Act (1974) (Vic).

[395] In July 1992, the AIRC issued a decision for the making of the 1992 Nurses Award with coverage of registered nurses by the (then) ANF and of enrolled nurses working in public hospitals by both the ANF and HSUA. The HSUA was excluded from coverage of registered nurses and the AIRC decision did not extend to registered psychiatric nurses or psychiatric state enrolled nurses. The ANF and HSUA then entered into the 1992 Demarcation Agreement. 150 It provided for:

(a) The making of a federal award to which the ANF and HSUA were respondent applying to psychiatric nurses employed by the State of Victoria (Crown employment) under the Victorian Public Service Act; and

(b) The HSUA’s interest in registered psychiatric nurses outside Crown employment being restricted to registered psychiatric nurses who were members of it at the time.

[396] In particular, the 1992 Demarcation Agreement provided that:

•  The ANF would not oppose the application of the Crown Award to the employment of person exclusively engaged in a particular facility and in a particular service which was staffed pursuant to s.97 of the Mental Health Act (1986) (Vic) (or s.67 of the Intellectually Disabled Persons Services Act (Vic)) as at the date of the agreement, in circumstances where employees of the Crown became employed by another employer because of the amendment or repeal of ss.97/67 or variation to the operation of ss.97/67. (clause 4.2)

•  The parties agreed that the Crown award would not apply to any employment that was not, as at the date of making the 1992 Demarcation Agreement, or subsequently:

•  The subject of a ss.97/67 arrangement;

•  Within a unit or ward or service in which the employment of nursing staff was exclusively or substantially under ss.97/67 arrangements; and

•  In the case of s.97, undertaken as part of an identified psych/mental health service for clients/patients identified in “Schedule B” or subsequent services of the same character; or

•  In the case of s.67 employees, that service provided while in Crown employment. (clause 4.3).

•  The HSUA’s respondency to any award would not apply to Registered Nurses employed as such in circumstances where such employees were not employees of the Crown. (Clause 4.4).

[397] The 1992 Nurses Award 151 made by the AIRC came into force on 23 December 1992. It contained classifications and grades for registered nurses and enrolled nurses. It applied to all registered and enrolled nurses other than those employed by the Crown pursuant to the Public Service Act (1974) (Vic).

[398] In 1993, the Public Service Board was abolished and an order was made by the AIRC to the effect that the Crown preserve the terms and conditions of employment of Crown employees working in psychiatric services.

[399] The 1994 Interim Award 152 was made by the AIRC in 1994 and was binding on the Crown and preserved Public Service Regulations and Public Service Board determinations as in force on 27 October 1992 and non direct care classification standards.

[400] The 1995 HACSU Award 153 was made and applied to the employment of employees of the Crown engaged in the performance of work in or in connection with industries and/or industrial pursuits of health and community services, and in or about places where such industries and/or related pursuits were undertaken, and in particular:

•  Psychiatric and mental health services;

•  Intellectual disability services;

•  Alcohol and drug related services.

[401] Amongst other classifications, the 1995 HACSU Award classifications included psychiatric and general nursing.

[402] As has been referred to above, in 1997 Justice Marshall found in the Federal Court proceeding Health Services Union of Australia v North Eastern Health Care Network 154 that part of the activities of the State in the provision of adult mental health care services in Central East transferred to North Eastern Health Care Network and North Western Health Care network. The effect of this decision was that mental health awards that applied to Crown employees formerly employed in the Victorian public service and engaged under s.97 of the Mental Health Act 1986 (Vic) were to now cover public hospitals to whom the mental health services had transmitted. Following this decision, the 1992 Nurses Award continued to apply to all registered nurses and enrolled nurses employed in the public sector, including in mainstreamed mental health services and both the 1992 Nurses Award and the 1995 HACSU Award applied to mainstreamed services.

[403] On 19 November 1997, the HSUA made an application to the AIRC for demarcation orders to exclude the ANF from representing the industrial interests of persons employed in public psychiatric services. The application outlined that the following orders were sought:

•  That the Health Services Union of Australia ("HSUA") has the right, to the exclusion of the Australian Nursing Federation ("the ANF”) to represent, under the Workplace Relations Act 1996 ("the Act"), the industrial interests of persons employed in psychiatric services provided or conducted by or on behalf of or for the Crown in Right of the State of Victoria including but not limited to any health network, public or private hospital, community health centre, or any other agency of the Crown, or any provider of those services ("the psychiatric services").

•  That the ANF is not to have the right to represent under the Act the industrial interests of persons employed in the psychiatric services.  155

[404] Shortly thereafter the ANF and HSUA entered into the 1997 Demarcation Agreement 156 which was intended to give further effect to the 1992 Demarcation Agreement. The 1997 Demarcation Agreement provided:

•  The Award regulating the private sector in respect of psychiatric/mental health nurses’ terms and conditions of employment was the 1992 Nurses Award (clause 3.1);

•  Where a publicly funded health service was privatised and/or where an arrangement existed for a private enterprise to provide and/or manage a publicly funded mental health services, the relevant award covering psychiatric and mental health nurses would be the 1995 HACSU Award (clause 3.3);

•  All employees engaged in provision of mental health services in the public sector, including direct government employees, and/or employees of publicly funded psychiatric/mental health services should be subject to a certified agreement covering only such employees and to which the HSUA and ANF would be joint union parties with respect to Division 1, 2 and 3 Nurses under the Victorian Nurses Act and the which the HSUA would be the sole union party with respect to all other grades of employees (clause 4.1); and

•  The parties would co-operatively pursue the making of an Award in the same terms as the certified agreement to prescribe the terms and conditions of all employees engaged in provision of mental health services in the public sector, including direct government employees, and/or employees of publicly funded psychiatric/mental health services (clause 4.3).

[405] On 19 January 1998 a Heads of Agreement 157 regarding Psychiatric Services was entered into by the HSUA, the ANF, the VHIA, the State of Victoria (Department of Human Services), Mercy Health and Aged Care Inc. and Latrobe Regional Hospital. The Heads of Agreement was stated to apply to the employment of all employees who were eligible to be members of the HSUA and/or the ANF engaged solely or substantially in the provision of psychiatric and/or mental health services in Victoria. It defined Psychiatric State Enrolled Nurses and Registered Psychiatric Nurses as follows:

•  Psychiatric State Enrolled Nurse shall mean an employee as defined in division two of the register of the Nurses Board of Victoria, as amended from time to time, and employed in psychiatric and/or mental health services;

•  Registered Psychiatric Nurse shall mean as defined in division one and/or division three of the register of the Nurses Board of Victoria as amended from time to time, and employed in psychiatric and/or mental health services.

[406] The parties to the Heads of Agreement agreed to take whatever steps were necessary to have the Heads of Agreement drawn up into certified agreements:

•  to come into effect from the first full period in which 1 July 1997 fell (clause 3.3);

•  to be called the “(name of employer) Psychiatric Services Certified Agreement 1997” (clause 3.4);

•  to be between and binding upon the HSUA with respect to all employees, the ANF with respect to Registered Psychiatric Nurses and Psychiatric State Enrolled Nurses and the Hospital/Network Employer (clause 4.1); and

•  specific to that part of the businesses providing psychiatric and services in terms that were prescribed (clause 6.1).

[407] An example of a certified agreement covering employment in mental health services that resulted from the Heads of Agreement was the Barwon Health Psychiatric Services Certified Agreement 1998. 158 That agreement was to be read with the Heads of Agreement (clause 8.2) and its preamble included:

•  recognition of “the special nature of psychiatric and/or mental health services” and acknowledged “the need to have a separate, specialist instrument to regulate the terms and conditions of employment and the type of work performed by employees in psychiatric services and/or mental health services”;

•  the agreement provided a mechanism for all employees engaged in or in connection with the provision of psychiatric and/or mental health services to be employed pursuant to a single code of employment governing that employment;

•  the transfer of employees who are employees of the Department to become direct employees of the employer;

•  that the agreement would apply to the employment of employees engaged in the provision of psychiatric and/or mental health services with the employer to the exclusion of all other awards and certified agreements, including the 1992 Nurses Award and the Health and Allied Services- Public Sector Victorian Consolidated Award 1992 and any associated certified agreements.

[408] Clause 5 of that agreement stated it applied to “the employment of employees who are eligible to be members of the HSUA (Victorian No 2 Branch) and/or ANF (Victorian Branch)…engaged solely or substantially in the provision of psychiatric or/or mental health services in Victoria.” The agreement contained classification standards for Registered Psychiatric Nurses, Psychiatric State Enrolled Nurses, Psychiatric Services Officers (PSOs) and Non-Direct Care employees (e.g. cooks, laundry hands etc). Where both Registered Psychiatric Nurses and Psychiatric State Enrolled Nurses were defined, it was stated that their definitions were “intended for use as an industrial classification and for the purpose of industrial regulation. The relevant qualification applicable is dealt with under the appropriate state government legislation.”

[409] This first round of certified agreements was followed by:

•  the Victorian Psychiatric Services Certified Agreement 2000-2004; 159

•  the Victorian Psychiatric Services Certified Agreement 2004-2007; 160

•  the Victorian Public Mental Health Services Enterprise Agreement 2012-2016; 161 and

•  the Victorian Public Mental Health Services Enterprise Agreement 2016-2020 (Mental Health Agreement). 162

[410] The first two of these certified agreements defined “Employee” as a “person employed by the employer and engaged solely or substantially in the provision of psychiatric or mental health services” and “Psychiatric Services/Mental Health Services” as “human services concerned with the prevention of mental illness and the assessment, treatment, rehabilitation, maintenance and support of those persons who may be at risk of or suffering from mental illness or disability”. The scope of the agreements was not confined to psychiatric nurses but continued to include non-direct care employees.

[411] The Victorian Public Mental Health Services Agreement 2012-2016 163 defined an employee as “a person employed by an Employer and engaged solely or predominantly in the provision of Mental Health Services, in a classification/occupation within the Agreement.” Further, “Mental Health Services/Psychiatric Services” were defined as “the delivery of human services concerned with the prevention of mental illness and the assessment, treatment, rehabilitation, maintenance and support of those persons who may be at risk of or suffering from mental illness or psychiatric disability by Employers listed in Schedule 1.” (our emphasis)

[412] The Mental Health Agreement maintained these two definitions.

[413] In terms of Nursing Agreements, we note the ANF and HSUA and North Western Health Care Network 1997 Public Sector Agreement 164 contained an exclusion in the following terms:

“This agreement does not apply to employees engaged in the provision of psychiatric/mental health services in the public health sector on the proviso that those employees will be covered by another agreement that is no less advantageous.” 165

[414] The following, subsequent agreements contained a similar exclusion, but it was expressed as not including a Victorian Registered Nurse Division 1 (and Division 2) “employed solely or predominantly in the provision of psychiatric nursing services”:

•  Nurses (Victorian Public Sector) Multi-Employer Agreement 2000-2004; 166 and

•  Nurses (Victorian Public Sector) Multiple Employer Agreement 2004-2007. 167

[415] In the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016, 168 the wording of the exclusion changed, as follows:

•  For an Enrolled Nurse, it became – “excludes a person employed solely or predominantly in the provision of public mental health services”; and

•  For a Registered Nurse, it became – “does not include a Registered Nurse who is employed solely or predominantly in the provision of public mental health services”.

[416] These definitions are included in the Nurses Agreement in identical terms.

[417] Having considered the history of the applicable industrial instruments, we are satisfied the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate. We have arrived at this view having regard to the following:

a) The framing of the industrial instruments and the industrial regulation was shaped by deinstitutionalisation and mainstreaming, which we consider is properly categorised as an organisational shift.

b) The ways in which the 1992 Demarcation Agreement delineated the employment of persons - “in a particular facility and in a particular service”, “within a unit or ward or service”, “undertaken as part of an identified psychiatric/mental health service” and “while in Crown employment”.

c) The exclusion from the 1992 Nurses Award of registered and enrolled nurses having been based on employment by the Crown.

d) The form of orders sought in the application made on 19 November 1997 by the HSUA for demarcation orders having been expressed as the right to represent the industrial interests of persons employed in “the psychiatric services”, which term was defined as employment in psychiatric services provided or conducted by or on behalf of or for the Crown in Right of the State of Victoria including but not limited to any health network, public or private hospital, community health centre, or any other agency of the Crown, or any provider of those services.

e) The effect of the 1997 Demarcation Agreement, in particular:

•  That it was to give further effect to the 1992 Demarcation Agreement;

•  That one way in which it delineated Award coverage was on the basis of whether an employee was employed in the private sector; and

•  That another way was whether the service in which an employee was employed was privatised or publicly funded.

f) That it was a term of the Heads of Agreement that the parties agreed to develop certified agreements specific to that part of a business providing psychiatric and/or mental health services. This then informed how the term “psychiatric and/or mental health services” was to be construed in the 1997 Agreements.

g) The wording of the preamble used in the 1997 certified agreements recognising “the special nature of psychiatric and/or mental health services” and acknowledging “the need to have a separate, specialist instrument to regulate the terms and conditions of employment and the type of work performed by employees in psychiatric services and/or mental health services.”

h) That the 1997 Agreements were to cover the employment of all employees of an employer providing psychiatric/mental health services.

i) The adoption of the definition, “Mental Health Services/Psychiatric Services” in the Victorian Public Mental Health Services Agreement 2012-2016, which links the delivery of these services to employers, and the maintenance of this definition in the Mental Health Agreement.

j) The fact the organisational distinction has been maintained throughout the various incarnations of both mental health and nursing agreements.

k) The organisational delineation the Safe Patient Care Act makes regarding mental health wards, departments and services.

(a) whether the employees proposed to be covered by the Replacement Nurses Agreement are fairly chosen within the meaning of ‘fairly chosen’ as referred to in s 186(3A) of the Fair Work Act 2009 (Cth)

[418] We consider the HSU’s contention that the inclusion of the words “service, department, unit or program” in the proposed replacement coverage term constitutes the adoption of ambiguous and uncertain terms, preventing clear identification of the employees to be covered, is overreach. Having regard to the evidence and material before us, we are satisfied that although the context in which these terms are used may vary, they have been widely used over many years and are well-understood within the health sector and medical and nursing professions. We note, in particular, the unchallenged statement of the VHIA that there are in excess of 1000 collective references to these terms in the Mental Health Agreement and in excess of 300 uses within the Nurses Agreement. 169 We further note, as an example of the use and understanding within the sector, the HSU itself makes the submission that the separate administrative and clinical structure of designated mental health services “is variously referred to as the mental health program, or mental health service, of a particular hospital.”170

[419] As to the ED Hubs, due to their placement as an example in the proposed replacement coverage term, focus has descended upon them both as envisaged in the DHHS Guidelines and in operation, to the extent that this is currently the case.

[420] The HSU maintains the example of the ED Hubs is problematic and offers no assistance in resolving this dispute. It submits the DHHS Guidelines do not clearly define the structure and operations of the ED Hubs and that in circumstances where only one of the intended six ED Hubs is currently operating (and then only partially) it is not possible to say whether mental health nurses employed to work in the ED Hubs are or will be providing services to a department via the mental health program, or some combination thereof.

[421] A review of the DHHS Guidelines reveals that at clause 1.1, the purpose of the DHHS Guidelines is addressed and it is stated they outline the service delivery model of the ED Hubs. Having regard to the broader content of the DHHS Guidelines, we make a number of observations:

•  The DHHS Guidelines are replete with references indicating the ED Hubs are part of the ED, that patients will be ED patients and that the ED Hubs will be led by and under the clinical governance of the ED;

•  Consistent with this, ultimate strategic and operational decision-making and responsibility will sit with the senior ED clinical lead/director;

•  It is clear clinicians will be working in a multidisciplinary team and clinicians with mental health and AOD capability will provide care under the clinical oversight of ED clinical leads;

•  ED mental health and AOD Hub staff will be employed by the health service as ED clinicians;

•  Clinicians within the ED Hub will be employed under the same industrial agreement/s as other ED clinicians within that service. This will depend on the particular circumstances and is to be determined at each service;

•  Amongst the list of Awards and enterprise agreements that may apply, it is outlined that the Nurses Agreement is to apply to nursing staff;

•  When medical treatment is required within the mainstream ED, clinicians and peer workers from the hub can provide input across the ED more broadly and are not confined to the physical space of the ED Hub. It is stated this is to enable hub clinicians “to work everywhere, treat everyone and build capacity throughout the ED;

•  The DHHS Guidelines will be shaped by advice from existing models, including PAPUs in Victorian EDs; and

•  The ED Hubs will be refined over time, in particular, by issues identified during the development and implementation process.

[422] It is clear that the wording at clause 7.1 of the DHHS Guidelines, dealing with the application of ED employed staff industrial awards and agreements and stating that the Nurses Agreement is to apply to nursing staff, reflects the preference of the ANMF and was a matter the ANMF had sought in discussions with the DHHS. Without having heard direct DHHS evidence on this, as much as may be safely concluded is that the DHHS was prepared to countenance the wording adopted in clause 7.1. We do not consider the HSU’s reliance on the text of the Media Release of the Victorian Premier and Minister for Mental Health dated 10 May 2018, in which the proposal to establish Mental Health Hubs was announced, advances matters. The Media Release merely comprises a number of high-level statements. It is devoid of detail going to the operation of the ED Hubs, compared with that which was developed through consultation and then produced in the DHHS Guidelines that were published nearly 18 months later.

[423] Certainly there are different models of care (e.g. PAPU and EPS) and these were detailed in the material and evidence before us. Some of these can be contrasted with the ED Hubs because they do not operate within emergency department settings. The text of the DHHS Guidelines confirms the placement of the ED Hubs within the ED, speaks to the service delivery model and outlines the intended governance structure. The example in the wording of the proposed coverage clause reflects this, contemplating the ED Hub operating within the ED: “a Registered or Enrolled Nurse who works in an ED Hub in an Emergency Department…” (our emphasis). It is however recognised by all parties, and we agree, that if a hospital ultimately established a model of care that did not accord with the fundamentals of the ED Hubs contemplated by the DHHS Guidelines, this would likely have implications for enterprise agreement coverage.

[424] Although there was considerable focus upon the employment of Ms Gallaher, we are not of the view that a finding in relation to her current circumstances one way or the other should determine this dispute. Primarily, this is because she is one employee and the ED Hub at Monash Health is neither fully operational, nor physically completed.

[425] Ultimately, we agree with the submission made by the VHIA that the dispute is not solely concerned with the ED Hubs, albeit that they have operated as a catalyst to it. We consider the essence of the dispute is broader than the ED Hubs and concerns whether coverage is to be determined on the basis of an organisational test or a duties test and we are satisfied that the resolution of the dispute will have application beyond the example of the ED Hubs.

Organisational and Operational Distinction

[426] We have considered the propositions advanced in support of the submission that the work performed by mental health nurses in public hospitals is operationally and organisationally distinct from the work performed by general nurses. What was raised by the HSU in terms of the qualifications required was not persuasive because the only mandatory requirements cited were in relation to the RPN 4 classification and it is evident various specialties are also a feature of the broader nursing profession.

[427] While there was much emphasis placed by the HSU on the classification structure outlined at clause 99 of the Mental Health Agreement, we note the very clear statement contained within the definition for a RPN:

“Registered Psychiatric Nurse ('RPN') means a person employed by an Employer and classified in accordance with clause 99, and registered as a Registered Nurse in the Register of Nurses of the NMBA established by the HRP Act

This definition is intended for use as an industrial classification and for the purpose of this Agreement only, and does not imply specialist registration. The relevant qualification applicable is dealt with under the HRP Act.” (our emphasis)

[428] We would also observe that substantive changes to clause 99 in the various incarnations of the Mental Health Agreements from the Victorian Psychiatric Services Certified Agreement 2000-2004 171 to date have been minimal. Whereas clause 99 retains the classifications of PEN and RPN, the NMBA, which sets a nurse’s scope of practice and grants the authority to practice, only recognises Registered Nurses and Enrolled Nurses. Further, the standards and policies that all nurses must meet are set by AHPRA. We have evaluated the evidence given by a number of nurses called by the HSU and note that while some gave evidence that they use the Mental Health Agreement as a point of reference in relation to their tasks, responsibilities and duties, they also said the Mental Health Agreement does not speak to their clinical practice and decision-making.172

[429] We have considered the proposition of the HSU that the clinical reporting lines recorded in the Mental Health Agreement and required by the Mental Health Act are another consideration that demonstrates that the work performed by mental health nurses in public hospitals is operationally and organisationally distinct. To this end, the HSU contends a “designated mental health service” is essentially a mental health department or division of the particular health service or hospital. By way of contrast, it is the position of the VHIA that the Mental Health Act provisions applying to designated mental health services in fact apply across the entire health service and are not limited to the specific mental health service, unit, department or program delivered by it. Similarly, the ANMF position is that each of the 17 employers in Schedule 1 of the Mental Health Agreement are designated mental health services. We agree with the position advanced by the VHIA and ANMF in this respect and consider the definition of “designated mental health service” in s 3(1) of the Mental Health Act confirms this. We are therefore not persuaded that the Mental Health Act imposes any discrete organisational structure with respect to the provision of mental health services within a “designated mental health service”, that is, the employer at large.

[430] There are a number of principles outlined in the decision of the Full Bench of the Commission in Aerocare 173 said to be applicable to the determination of whether a group of employees covered by an agreement was fairly chosen. Amongst them, and relevantly in this case, is that if the group of employees covered by the agreement is geographically, operationally or organisationally distinct, that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct, that would be a factor telling against a finding that the group was fairly chosen.174

[431] As has previously been outlined, guidance as to how to interpret and apply the expression “organisationally distinct” in s 186(3A) of the Act was given by the Full Bench (and subsequently endorsed by the Full Court of the Federal Court) as follows:

•  the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;

•  the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;

•  however, the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and

•  most businesses have organisation structures which will allow organisationally distinct groups to be identified. 175

[432] The HSU submits that organisational distinction may be drawn from the duties performed by employees. It contends that there can be no real dispute that, having regard to the clinical work performed by mental health nurses, and the way in which mental health care is required to be provided (including pursuant to the Mental Health Act), mental health nurses provide nursing care in a way that is organisationally distinct from their general medicine colleagues.

[433] The ANMF, however, relies particularly upon the third and fourth propositions outlined above. It submits the mere performance of different tasks or roles is insufficient where the employees work in an integrated way with other employees to perform a particular business function. Rather, the ANMF contends that what is required is that there be a distinct and separate organisational element in terms of how work is organised. Its contention is that the proposed coverage of the Replacement Nurses and Mental Health Agreements properly separates employees of organisationally distinct public mental health services provided by the 17 relevant employers (e.g. a PARC or CAT team) from nurses of various specialisations who are employed in public health settings outside of “public mental health services”. Moreover, it contends that the clarification it proposes, focussed as it is on the service, department, unit of program of the employer as opposed to the duties of the individual employee, expressly seeks to recognise that organisational reality without impacting the status quo. The VHIA also relies on Aerocare and its position is that the proposed definitions of coverage are intended to clarify ambiguities in the current wording of the coverage definitions to make clear that the status quo applies (i.e. coverage is based on the way in which the work is organised and not on the duties performed by an individual employee).

[434] We are not persuaded, in this case, that resolving the question of whether the employees proposed to be covered by the Replacement Nurses Agreement and the Replacement Mental Health Agreement are fairly chosen is a question to be answered by reference to the nature of the work they perform, their qualifications or their classification. We would observe that with the exception of Ms Gallaher, it is agreed amongst the parties that the HSU witnesses work in the provision of specialist and discreetly delivered mental health services (for example, one witness works in an EPS team, others in a PARC, a CCU and a CAT team etc) and that they are appropriately covered by the Mental Health Agreement. With this, we agree. They are working in organisationally distinct settings. We also believe they, and other employees in similar circumstances, will continue to be fairly chosen because of the reference in the proposed Replacement Mental Health Agreement to “mental health services” as being organisationally distinct services, departments, units or programs, thereby not disturbing the status quo. The position is the same for the Replacement Nurses Agreement, with its references to “public mental health services”. As such, we are satisfied the proposed definitions of coverage of the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate.

Discrimination

[435] The HSU has also submitted the Replacement Nurses Agreement discriminates against mental health nurses by changing the criteria for coverage from one which operates by reference to the duties performed to one operated by reference to location. The HSU says that by doing so, the Replacement Nurses Agreement discriminates against mental health nurses by treating them differently to other nurses and this is to their detriment because they are deprived of the classification structure in the Mental Health Agreement and those provisions setting out their duties. The HSU submits this detrimental outcome demonstrates that the employees proposed to be covered by the Replacement Nurses Agreement have not been fairly chosen. The ANMF and VHIA submit the proposed coverage clauses do not result in any change in coverage or the status quo. Their position is that the proposal is consistent with the historical approach to coverage that has been determined by the organisational test. We agree and are satisfied no issue of discriminatory treatment arises.

(b) whether the proposed coverage in each of the replacement agreements will promote the fair and efficient conduct of bargaining in relation to each of the replacement agreements

[436] To recap, the HSU has advanced the following propositions:

(a) As the proposed coverage is uncertain, it is difficult to bargain and this does not promote the fair and efficient conduct of bargaining;

(b) If the proposed coverage is found to be appropriate, there will be the need to address the provisions set out in clause 99 of the Mental Health Agreement and relativity issues between them and the conditions applying to nurses who are not mental health nurses;

(c) If the proposed coverage is found to be appropriate, and the HSU made a claim for the equivalent classifications as those applying under the Mental Health Agreement to be included in the Replacement Nurses Agreement, subsequent negotiations would likely delay the finalisation of the Replacement Nurses Agreement; and

(d) The claims made by the ANMF and VHIA regarding current confusion, disputation and a “demarcation culture” are devoid of merit.

[437] By way of contrast, the VHIA’s position is:

(a) If the Commission answers the agreed questions in the positive, all bargaining representatives will have a clear understanding of the scope of both Replacement Agreements and this will promote the fair and efficient conduct of bargaining;

(b) The Nurses Agreement already provides for the employment of any nurse, including a registered nurse with post-registration qualifications in mental health;

(c) A claim for the inclusion of clause 99 would merely convert the Nurses Agreement into the Mental Health Agreement, would go against the organisational distinction warranting the mental health exclusion and is inappropriate because it is inevitable any nurse in an ED Hub will need to work across an entire department and be flexible in the duties they undertake when doing so; and

(d) A negative answer to the questions posed would risk ongoing disputation (a view shared by the ANMF).

[438] Similarly, the ANMF submits that despite the previously clear historical demarcation, confusion and consequent disputation have arisen but this will be eliminated by the proposal for coverage clarification and allow the Replacement Nurses Agreement to be put out to a vote. The ANMF contends that there will be a flow-on effect for the Mental Health Agreement and if its proposal for coverage clarification is accepted, the interests of promoting fair and efficient bargaining with respect to the replacement agreements will have been served.

[439] The ANMF also refutes the suggestion its proposed coverage clarification is unclear. It says that the HSU has neither identified a problem with it nor suggested an alternative means of resolving potential disagreements about coverage. The ANMF submits the HSU’s position regarding clause 99 and relativities is merely speculative.

[440] In summary, the ANMF and VHIA submit that a finding that the proposed definitions are appropriate will promote the fair and efficient conduct of bargaining because it will clarify coverage and enable the Replacement Agreements to be put to a vote. However, the HSU contends that such a finding will prolong bargaining as it will seek the inclusion of clause 99 of the Mental Health Agreement into the Replacement Nurses Agreement and a discussion regarding relativities. This in turn has resulted in the ANMF and VHIA submitting that the advancement of such claims would simply be an attempt to convert the Nurses Agreement into the Mental Health Agreement when the Nurses Agreement already provides for the employment of any nurse.

[441] It is apparent that each of the parties holds the view that acceptance by us of their position will clarify and resolve all matters. The parties’ respective assertions and submissions indicate there will, depending on the outcome we determine, either be a threat of ongoing disputation (the contention of the ANMF and VHIA if its position is not accepted) or the requirement for further, involved bargaining (the contention of the HSU, if its position is not accepted). We do not consider the various positions the parties have advanced are determinative either way.

(c) in relation to each of the replacement agreements, the interests of the employers and the employees proposed to be covered by that replacement Agreement

[442] The HSU contends that the evidence before the Commission illustrates the high value its members place on the Mental Health Agreement. The HSU emphasised testimony going to the use of the Mental Health Agreement by employees in their day-today work to ensure they are operating within the agreed role responsibilities. In particular, it was said that employees consider the Mental Health Agreement recognises their skills and defines their roles, responsibilities and duties. The HSU dismissed the suggestion that a ‘demarcation culture’ would pervade the ED Hubs if different agreements were to cover the employees and submits that that Monash Hospital/Monash Health considers it most appropriate to employ the mental health nurses who work in its ED Hub under the Mental Health Agreement.

[443] The ANMF submits that certainty regarding coverage both in the immediate and longer term is in the interests of employees covered by both agreements, as is being able to work under the same agreement in a cohesive, multi-disciplinary environment with nurses of different specialities. Further, the ANMF contends that that clarification of coverage will avoid measuring and assessing each employee’s job, work and time spent performing mental health duties, which it says is the outcome contended for by the HSU.

[444] The ANMF also submits the HSU’s duties-based approach has constructional issues to which the HSU has not adequately responded, namely:

•  all those employees who are not engaged in direct care as a “mental health nurse” would be excluded from the definition of “Employee” in the Replacement Mental Health Agreement; and

•  “mental health nurses” not employed by one of the Employers party to the Mental Health Agreement would be excluded from the coverage of both Replacement Agreements.

[445] The ANMF emphasised that throughout Australia outside of Victoria, public-sector nurses with different specialisations are covered by a single enterprise agreement.

[446] The VHIA says it is the position of each of the Health Services that coverage is determined by an organisational test. It submits that its interpretation will enable employers to administer the agreements with greater confidence, absent inevitable disputes. It maintains the duties-based construction of the HSU is unworkable. The VHIA contends the ED Hub service delivery model requires clinicians to work collaboratively, flexibly and closely with one another and submits, having regard to evidence from HSU witnesses, the application of multiple enterprise agreements poses a risk of engendering a demarcation culture, which is inherently inconsistent with this requirement.

[447] The VHIA also raises issues with clauses 91 and 99 of the Mental Health Agreement. As to clause 99, the VHIA position is that, of itself, it neither creates nor protects mental health nursing positions and nor does it provide a form of accreditation, registration, specialist recognition or status for mental health nursing. The VHIA’s issue with clause 91 is that if the HSU’s construction was adopted, it would require the appointment of prescribed positions and numbers which would be unworkable where non-mental health services already have established reporting and staffing structures. In the alternative, the VHIA submits the purported “protections” the HSU says are afforded by the references to minimum staffing levels in “inpatient services” and “inpatient units” in clause 91 have no application to the ED Hub operating model. The VHIA also criticises the descriptors in the Mental Health Agreement on the basis that their detail and volume are not consistent with promoting modern and efficient organisational structures or work practices and notes clauses 96 and 14 of the Agreement requires them to be modernised.

[448] As outlined above, our evaluation of the evidence of the HSU witnesses is that while some gave evidence that they use the Mental Health Agreement as a point of reference in relation to their tasks, responsibilities and duties, they also said the Mental Health Agreement does not speak to their clinical practice and decision-making. We consider the clause 99 ‘point of reference’ and skills recognition and definition of role contentions are diluted by further observations we have made above:

•  That the substance of clause 99 of the Mental Health Agreement has remained virtually unchanged over the years;

•  The Mental Health Agreement classifies nurses covered for industrial purposes and does not imply specialist registration;

•  The NMBA, which sets a nurse’s scope of practice and grants the authority to practice, only recognises Registered Nurses and Enrolled Nurses; and

•  The standards and policies that all nurses must meet and comply with are set by AHPRA.

[449] We further observe that the qualification prerequisites in clause 99 are virtually static. The RPN 3 definition states that, effective from 1 July 2005, the “holding a postgraduate diploma in psychiatric/mental health nursing or of having completed a specialist undergraduate psychiatric nursing program or a specialist post basic course of training which lead to registration as a Division 3 Nurse” has been desirable. Where this morphs into a requirement to hold qualifications in each of the RPN4 – RPN7 classifications, the qualification prerequisites are specified in identical terms to the RPN3 definition.

[450] Additionally, we consider the fact that all other Australian States and Territories in Australia cover public-sector nurses with different specialisations via a single enterprise agreement without separate mental health agreements further dilutes the skills recognition and definition of role contentions of the HSU.

[451] Finally, with the exception of Ms Gallaher, the proposed definitions of coverage will not have an impact on the HSU witnesses themselves, in terms of agreement coverage due to the service, department, unit or program in which they are employed. As we have stated, we consider they and other employees in similar circumstances will continue to be fairly chosen because of the proposed Replacement Mental Health Agreement’s references to “mental health services” as being organisationally distinct services, departments, units or programs. Further, we observe the Replacement Nurses Agreement would cover both Registered Nurses and Enrolled Nurses and that the proposed coverage definitions for both Replacement Agreements will not alter the status, powers or responsibilities that exist pursuant to the Mental Health Act as far as employees who are registered nurses are concerned.

[452] In approaching the question of whether the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate having regard to the interests of the employees to be covered by each of the replacement agreements, we are not persuaded it is appropriate for there to be a requirement to determine whether am individual employee is engaged solely or predominantly in the provision of mental health services by reference to their duties/job. Further, we consider that avoiding the uncertainty and practical challenges of undertaking such analysis is in the interests of both employees and employers. There are a range of considerations we have taken into account:

•  In multi-disciplinary, integrated service delivery models such as an ED Hub, there is a need for flexibility, cohesion and collaboration;

•  In such settings, a requirement to assess and determine what proportion of a nurse's duties are responsive to a particular patient's mental health condition as opposed to other presentations would be difficult and problematic, particularly if the nurse is engaged in work across the service, department, unit or program in which they are employed;

•  The duties of the nurses may change from day to day, depending on the presentation of the patients who fall within their care; and

•  There are practical considerations such as on-the-job supervision and administrative requirements of time recording and payroll to take into account.

[453] Accordingly, we are, on balance, satisfied that the proposed definitions of coverage for the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate having regard to, in relation to each of the Replacement Agreements, the interests of the employers and the employees proposed to be covered by that Replacement Agreement.

(d) the existing coverage of the Nurses Agreement and the Mental Health Agreement

[454] It is uncontroversial amongst the parties that Victorian nurses working in public hospitals are covered by either the Nurses Agreement or the Mental Health Agreement. Further, there are 17 employers listed in Schedule 1 to the Mental Health Agreement. These employers are “designated mental health services” under the Mental Health Act and are also included within the list of Employers in Appendix 1 to the Nurses Agreement (which lists 125 health sector agencies). Clearly the two Agreements differ in a number of respects and there has been particular focus on clause 99 of the Mental Health Agreement, for which there is no equivalent in the Nurses Agreement. The parties have referred us to both the Mental Health Act and the Safe Patient Care Act as part of the arguments regarding existing coverage that they have advanced.

[455] As regards the Nurses Agreement:

(a) It covers the Employers as defined in clause 4.1(p), all Employees as defined in clause 4.1(o) and each of the Unions named by the Commission as covered;

(b) The “Employers” are listed in Appendix 1 to the Nurses Agreement;

(c) “Employees” are defined in clause 4.1(o) to include "Enrolled Nurse" and "Registered Nurse”;

(d) An “Enrolled Nurse” is defined in clause 4.1(q) by reference to Division 2 Enrolled Nurses of the Register of Nurses under the Health Practitioner Regulation National Law 2009 but excludes “a person employed solely or predominantly in the provision of public mental health services”; and

(e) A “Registered Nurse” is defined in clause 4.1(ii) by reference to Division 1 on the Register of Nurses under the Health Practitioner Regulation National Law 2009 but does not include “a Registered Nurse who is employed solely or predominantly in the provision of public mental health services.”

[456] The term “public mental health services” is not defined. Each of the parties have submitted this term must be defined by reference to the Mental Health Agreement. We prefer the interpretation advanced by the ANMF and VHIA.

[457] We consider the references to the provision of “public mental health services” must be construed as a reference to the provision of services in a discrete organisational sense by the employer, as distinct from the duties of the employees. The inclusion of the word “public” in the term “public mental health services” is significant because when used in the health sector, “public” is used in reference to the nature of a service in an organisational sense, rather than an occupational sense. We consider the use of the word “provision” is also significant. Whereas a person performs duties, an organisation provides services.

[458] As regards the Mental Health Agreement:

(a) It covers the Employers as defined in clause 9.1(j), all Employees as defined in clause 9.1(i) and the Unions named by the Commission as covered;

(b) The 17 “Employers” covered are listed in Schedule 1 to the Mental Health Agreement; and

(c) “Employee” is defined in clause 9.1(i) to mean a person employed by an Employer and “engaged solely or predominantly in the provision of Mental Health Services” in classifications/occupations within the Agreement such as a PEN and RPN.

[459] In clause 9.1(t), “Mental Health Services/ Psychiatric Services” is defined as follows:

“The delivery of human services concerned with the prevention of mental illness and the assessment, rehabilitation, maintenance and support of those persons who may be at risk of or suffering from mental illness or psychiatric disability by employers listed in Schedule 1.”

(our emphasis)

[460] We consider the use of the words “delivery of human services” and “by employers” covered by the Agreement is significant. They speak to an organisational provision/delivery of the Mental Health Services described within clause 9.1(t) by the employers listed in Schedule 1, each of which is a “designated mental health service” under the Mental Health Act. To be covered by the Mental Health Agreement, a nurse must be employed by a Schedule 1 employer and engaged solely or predominantly in the delivery of the Mental Health Services it provides, in a PEN or RPN classification. That there is a nexus in the definition of “Mental Health Services/Psychiatric Services” between the delivery of the human services it outlines and an employer falling within Schedule 1 of the Mental Health Agreement lends weight to our interpretation. The “Mental Health Services/ Psychiatric Services” that are defined are not duties at large.

[461] We have had regard to the references made by both the ANMF and VHIA to the use throughout the Mental Health Agreement of the term “services” in a range of contexts and references to working within “mental health settings”, “as part of the specialist mental health team”, “bed based services”, “in-patient services”. We consider this use lends weight to the interpretation they advance. We have also noted the various identifiable services, departments, units or programs sitting within the organisational structures of Schedule 1 employers in which the various HSU witnesses are employed, which are properly covered by the Mental Health Agreement.

[462] We have taken into account the fact that the existing coverage of the Mental Health Agreement includes classifications that extend beyond nurses; for example Health Professionals, Health and Allied Services Employees and Management and Administrative Employees. This supports the interpretation of coverage that has the Mental Health Agreement covering employees in organisationally distinct Mental Health Services, as opposed to just those employees engaged in Mental Health Services involving direct care. We do not consider the submissions of the HSU provided an answer on this aspect of coverage. Further, we have noted that it is not in contest that a mental health nurse engaged solely or predominantly in mental health duties but not employed by an employer listed in Schedule 1 of the Mental Health Agreement, cannot be covered by the Mental Health Agreement and we consider this weighs in favour of the proposed definitions of coverage.

[463] We have also considered the HSU submission that the Mental Health Act provides the distinguishing feature necessary for delineating coverage for employers covered by both the Mental Health Agreement and the Nurses Agreement because it imposes a separate organisational structure. However, we are not persuaded that the Mental Health Act imposes a discrete organisational structure with respect to the provision of Mental Health Services by a “designated mental health service” (defined by s 3 of the Mental Health Act). The chief psychiatrist position under the Mental Health Act, for example, is an employee of the Department with no apparent organisational responsibilities within the 17 designated mental health services. The authorised psychiatrist position, while required to be the subject of appointment by a designated mental health service, seems to us to be a position of oversight in relation to the exercise of certain powers provided for in the Mental Health Act. The powers are able to be delegated and it is possible for there to be multiple appointees.

[464] Ultimately, having reviewed the ordinary meaning of the words of both the Nurses Agreement and the Mental Health Agreement as a whole and in context and having regard to the applicable industrial context and reality, we consider the existing coverage of the Nurses Agreement and the Mental Health Agreement is determined by reference to the way in which the work is organised. Similarly, we consider the proposed definitions of coverage of the Replacement Agreements determine coverage in the same way. As such, we are satisfied the proposed definitions of coverage of the Replacement Nurses Agreement and the Replacement Mental Health Agreement are appropriate.

(f) the desirability that coverage of the respective replacement agreements be mutually exclusive

[465] The parties agree that it is desirable that coverage of the respective replacement agreements be mutually exclusive. We are satisfied that this is appropriate and consider the proposed coverage provisions deliver this. We consider the duties-based construction proffered by the HSU suffers from a potential to exclude certain nurses from coverage of both Replacement Agreements.

(g) any other matters that the Commission deems relevant

[466] The HSU contends that a consequence of a finding that the proposed definitions for coverage for the Replacement Agreements are appropriate would be mental health nurses being covered by the Nurses Agreement. We are not persuaded the transitioning issues that have been assumed by the HSU will materialise. This is because we have not been persuaded the agreement coverage for mental health nurses working in organisationally distinct settings providing specialist and discreetly delivered mental health services will change. We also do not accept the proposition of the HSU that determining the coverage question in the affirmative will sideline the application of the Mental Health Act. We are satisfied the Mental Health Act will continue to operate on its terms as far as registered nurses working within designated mental health services are concerned.

[467] The ANMF and VHIA made submissions to the effect that it is in the public interest that the question regarding coverage is resolved because if resolved in the affirmative, the establishment of the ED Hubs will be able to continue and the community will then be able to experience their benefits.

[468] Clearly it is in the public interest for the dispute between the parties to be resolved.

5. Conclusion

[469] The agreed questions for arbitration require us to determine whether the proposed definitions of coverage for the Replacement Agreements are appropriate having regard to seven considerations. For the reasons given above, the agreed questions for arbitration are answered in the following way:

1. Is the proposed definition of coverage of the Replacement Nurses Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

Answer: Yes

2. Is the proposed definition of coverage of the Replacement Mental Health Agreement appropriate having regard to the matters in paragraph 9 of the Arbitration Agreement?

Answer: Yes.

DEPUTY PRESIDENT

Appearances:

Mr H Borenstein QC and Ms K Burke for Health Services Union
Mr E White and Ms E Levine for Australian Nursing and Midwifery Federation
Mr J Bourke QC and Ms F Leoncio for Victorian Hospitals’ Industrial Association

Hearing details:

2020.
Melbourne, by Microsoft Teams.
5, 6, 16, 17 and 30 November.

Printed by authority of the Commonwealth Government Printer

<PR730865>

 1   See [9] of the Arbitration Agreement; DCB6921.

 2   Now the Department of Families, Fairness and Housing.

 3   [2020] FWC 5314.

 4   Healey witness statement 19 August 2020 at paragraph 10; DCB41.

 5   Ibid at paragraph 14, DCB42; and DCB57.

 6   Transcript 6 November 2020 at PN633-634.

 7   Ibid at PN526-530.

 8   Ibid at PN533-534.

 9   Ibid at PN535.

 10   Ibid at PN612-614.

 11   (1997) 79 FCR 43.

 12   Transcript 16 November 2020 at PN1949-1953.

 13   Ibid at PN1936.

 14   Transcript 6 November 2020 at PN883-884.

 15   Transcript 6 November 2020 at PN806.

 16   (1997) 79 FCR 43.

 17   Gilbert witness statement 23 September 2020 at paragraph 46; DCB3588.

 18   Ibid at paragraph 36; DCB3586.

 19   Transcript 17 November 2020 at PN2505.

 20   Transcript 17 November 2020 at PN2521.

 21   Transcript 17 November 2020 at PN2523.

 22   Gilbert witness statement 23 September 2020 at paragraph 75; DCB3594.

 23   Ibid at paragraph 77; DCB3595.

 24   Ibid at paragraph 78; DCB3595.

 25   Ibid at paragraph 80; DCB3595.

 26   Ibid at paragraph 89; DCB3597.

 27   Ibid at paragraph 93; DCB3597.

 28   Annexure PH-3l; DCB57.

 29   Transcript 17 November 2020 at PN2928.

 30   Transcript 17 November 2020 at PN2873.

 31   Transcript 17 November 2020 at PN2875.

 32   O’Hara witness statement 23 September 2020 at paragraph 56; DCB3612.

 33   Transcript 17 November 2020 at PN3022-3023.

 34   DCB5391.

 35   DCB5954.

 36   Transcript 17 November 2020 at PN3019.

 37   Transcript 17 November 2020 at PN2079-2080.

 38   Nagle witness statement 23 September 2020 at paragraph 32; DCB7305.

 39   Monash Health, Peninsula Health, Western Health, Barwon Health, St Vincent’s Hospital and Melbourne Health.

 40   Nagle witness statement 23 September 2020 at paragraph 45; DCB7308.

 41   Crowe witness statement 19 August 2020 at paragraphs 48-49, DCB219; Darmanin witness statement 19 August 2020 at paragraphs 27-29, DCB233; Gallaher witness statement 19 August 2020 at paragraphs 27-31, DCB206-207; Healey witness statement 19 August 2020 at paragraph 55, DCB50; Hamilton witness statement 19 August 2020 at paragraphs 40-42, DCB227; Murphy witness statement 19 August 2020 at paragraphs 31-32, DCB240-241; and Rebis witness statement 19 August 2020 at paragraphs 45-51, DCB191-192.

 42   Nagle witness statement 23 September 2020 at paragraph 64; DCB7311.

 43   Ibid at paragraph 65; DCB7312.

 44   Annexures TN-8 and TN-9 (SCB8774-8775) to the Nagle supplementary witness statement 4 November 2020.

 45   Darmanin witness statement 19 August 2020 at paragraphs 8-16, DCB229-230; paragraphs 19-22, DCB231; Hamilton witness statement 19 August 2020 at paragraph 15, DCB222.

 46   Murphy witness statement 19 August 2020 at paragraphs 11-16; DCB236-237.

 47   Rebis witness statement 19 August 2020; DCB182-200.

 48   Crowe statement 19 August 2020 at paragraphs 16-24; DCB214-215.

 49   Ibid at paragraphs 25-36; DCB215-217.

 50   Gallaher witness statement 19 August 2020 at paragraph 5; DCB201-202.

 51   Ibid at paragraphs 5-7; DCB201-202.

 52   Crowe witness statement 19 August 2020 at paragraphs 37-44; DCB217-218.

 53   See Nurses (Victorian Health Services) Award 1992 and the definition of Registered Nurse at Part B, clause 3(r).

 54   McCullough witness statement 23 September 2020 at paragraph 42; DCB6989.

 55   Section 4, schedule 7.

 56   Section 3, schedule 5.

 57   Section 5, schedule 6.

 58   McCullough witness statement 23 September 2020 at paragraph 52(a); DCB6991.

 59   See clauses 96 and 14; McCullough witness statement 23 September 2020 at paragraph 51, DCB6991.

 60   Transcript 16 November 2020 at PN1633-1634.

 61   McCullough witness statement 23 September 2020 at paragraph 56, DCB6992; McCullough supplementary witness statement 4 November 2020 at paragraph 8, DCB8710.

 62   McCullough supplementary witness statement 4 November 2020 at paragraph 13, DCB8711-DCB8712.

 63   [2017] FWCFB 5826 at [27], see also Aerocare Flight Support Pty Ltd t/as Aerocare Flight Support v Transport Workers’ Union of Australia [2018] FCAFC 74 at [12] in which the Full Court describes the guidance summarised by the Full Bench at [27] as persuasive.

 64   VHIA Closing submissions dated 26 November 2020 at [62] and references therein.

 65   Transcript 17 November 2020 at PN2636.

 66   Ibid at PN2292.

 67   In the DHHS Guidelines starting at DCB120, see the last paragraph in section 1 on page 1: “The guidelines will also be shaped by advice from existing models including Psychiatric Assessment and Planning Units (PAPUs) in Victorian EDs. Other issues may also be identified during the development and implementation process which may also contribute to further refinements in the service model”; see also the last sentence in section 6.2 (CB 125): “Each health service formulates its own model of care for commonly presenting patient cohorts”.

 68   Per Jones v Dunkel (1959) 101 CLR 298, 321. See also Huang v Rheem Australia (2005) 141 IR 310 at [32]-[34].

 69   SCB8776.

 70   Transcript 16 November 2020 at PN1885-1888; PN1960.

 71   Ibid at PN1906-1913; PN1937-1947.

 72   Transcript 17 November 2020 at PN2180; PN2210-2218, especially PN2218.

 73   Ibid at PN2294.

 74   See DCB108, and Transcript 16 November 2020 at PN1678–1694 (McCullough XXN) and PN2257 (Nagle XXN).

 75   SCB8760–61.

 76   Cf UFUA v MFESB (2010) 193 IR 293, [60] (FWAFB).

 77   There are 125 health services (employers) listed in Appendix 1 to the General Nurses Agreement. All of the 17 employers in Schedule 1 to the Mental Health Agreement are included in that list of 125.

 78   The designated mental health services in Victoria are listed in Schedule 1 of the Mental Health Regulations. They are the same 17 entities as the 17 employers in Schedule 1 to the Mental Health Agreement. Fourteen are public health services listed in Schedule 5 to the Health Services Act 1988 (Vic). Two (Mildura Base Hospital and South West Healthcare) are public hospitals listed in Schedule 1 to the Health Services Act, and two (Mercy Public Hospitals Inc and St Vincent’s Hospital (Melbourne) Ltd) are denominational hospitals listed in Schedule 2 of the Health Services Act.

 79   A designated mental health service is obliged to have regard to the mental health principles in s 11(1) of the Act when providing mental health services, per s 11(2) and (3).

 80   Mental Health Agreement at Clause 99.15(c)(vii).

 81   Transcript 25 September 2020 at PN533-534; see also PN518 and PN524.

 82   Rebis reply witness statement 19 October 2020 at paragraphs 5-7; DCB7592-7593; Transcript 6 November 2020 at PN880-883.

 83   Darmanin reply witness statement 19 October 2020 at paragraph 7; DCB7603; Transcript 6 November 2020 at PN944-948.

 84   Application by CPSU, the Community and Public Sector Union [2020] FWC 265 at [52] (DP Kovacic).

 85   Transcript 16 November 2020 at PN1708-1712.

 86   Transcript 17 November 2020 at PN2317-2319.

 87   Ibid at PN2715-2719.

 88   Transcript 16 November 2020 at PN1746.

 89   See ANMF submissions, [102], at DCB3575; VHIA submissions, [84], at DCB6964.

 90   McCullough supplementary witness statement 4 November 2020 at paragraph 13; SCB8711-12.

 91   Transcript 17 November 2020 at PN2538.

 92   Ibid at PN2538-2543; PN2734-2737.

 93   Ibid at PN2296.

 94   Gilbert witness statement 23 September 2020 at paragraph 114; DCB3602.

 95   See Gallaher witness statement 19 August 2020 at paragraph 27, DCB206; Crowe witness statement 19 August 2020 at paragraph 48, DCB219; Rebis witness statement 19 August 2020 at paragraph 49, DCB192; Murphy witness statement 19 August 2020 at paragraph 32, DCB241.

 96   The HSU submits the only witness who was asked about the interaction between the Standards and the Agreement was John Murphy and he agreed that the two did not overlap. See Transcript 6 November 2020 at PN798–801.

 97   DCB6644.

 98   The HSU relies on the definition of ‘Scope of Practice’ in the DMF at CB 6657 and submits that Ms O’Hara in cross-examination did not dispute that matters that fall within the definition of scope of practice may be included in an enterprise agreement: PN2829-2835; PN2838-41.

 99   Transcript 6 November 2020 at PN792.

 100   Murphy witness statement 19 August 2020 at paragraphs 31–32, DCB 240–241; Transcript 6 November 2020 at PN701, PN717, PN719.

 101   Rebis witness statement 19 August 2020 at paragraphs 45–48, DCB 191–192; Transcript 6 November 2020 at PN846-851, PN881.

 102   Darmanin witness statement 19 August 2020 at paragraph 27, DCB233; Transcript 6 November 2020 at PN925-926, PN947.

 103   See Gilbert witness statement 23 September 2020 at paragraph 71, DCB3593; see also ANMF Tender Bundle, documents 39-44, 48 and 49 (DCB5981-6587, DCB6731 and DCB6809).

 104   Transcript 17 November 2020 at PN2303-2306; see also PN2570.

 105   Transcript 17 November 2020 at PN2285-2286 and PN2339.

 106   Transcript 6 November 2020 at PN702-704, PN844-846, PN849, PN852, PN881, and PN 925-928.

 107   Transcript 6 November 2020 at PN693, PN697, PN698; Transcript 16 November 2020 at PN1932-1933.

 108   Transcript 17 November 2020 at PN2637-2639.

 109   At SCB8741 and SCB8748.

 110   Transcript 6 November 2020 at PN513-518.

 111   Transcript 17 November 2020 at PN3009-3010.

 112   Transcript 16 November 2020 at PN1100.

 113   Transcript 16 November 2020 at PN1102.

 114   Mental Health Agreement, clause 19.12(b)(ii) and subsequent classifications which refer back to this requirement by the use of the phrase “within the context of the definitions above”: clauses 99.5 99.13; 99.14(b); 99.15(b); 99.16(b); 99.17(b), 100.1(a) [SCB8457-8458, 8460-8461, 8465, 8467, 8836].

 115   See relevant extracts at SCB8823, 8824, 8825.

 116   See relevant extracts at SCB8825.

 117   See relevant extracts at SCB8833.

 118   Clause 99.16(c) extracted at SCB8834.

 119   See relevant extracts at SCB8837.

 120   See relevant extracts at SCB8838.

 121   Clauses 196.3(j) and 229.4 extracted at SCB8838-8839.

 122   Schedule 3, cl 2.4, 3.4 extracted at SCB8841

 123   Schedule 3, cl 3.5 extracted at SCB8841-8842.

 124   Schedule 7 extracted at SCB8844-8846.

 125   HSU Submissions at [68]; DCB18.

 126   Gallaher witness statement 19 August 2020 at paragraph 13, DCB203; Hamilton witness statement 19 August 2020 at paragraphs 18-19, DCB222-223.

 127   Darmanin witness statement at paragraph 2 and 22, DCB228, 231-232; Transcript 6 November 2020 at PN931-936; McCullough witness statement 23 September 2020 at paragraph 35(a), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(a), DCB7303.

 128   Transcript 6 November at PN935-936.

 129   Hamilton witness statement 19 August 2020 at paragraphs 14-15, DCB222; McCullough witness statement 23 September 2020 at paragraph 35(a), DCB6987.

 130   Murphy witness statement 19 August 2020 at paragraph 20, DCB238; McCullough witness statement 23 September 2020 at paragraph 35(b), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(c), DCB7304.

 131   Transcript 6 November 2020 at PN711-714.

 132   Crowe witness statement 19 August 2020 at paragraph 17, DCB214; McCullough witness statement 23 September 2020 at paragraph 35(d), DCB 6987; Nagle witness statement 23 September 2020 at paragraph 30(g), DCB7304.

 133   Crowe witness statement 19 August 2020 at paragraphs 27-28, DCB215; Transcript 16 November 2020 at PN1048-1062; McCullough witness statement 23 September 2020 at paragraph 35(e), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(d), DCB7304.

 134   Rebis witness statement 19 August 2020 at paragraph 29, DCB187; McCullough witness statement 23 September 2020 at paragraph 35(e), DCB 6987; Nagle witness statement 23 September 2020 at paragraph 30(e), DCB7304.

 135   Morgan witness statement 23 September 2020 at paragraph 9, DCB3621.

 136   Gallaher witness statement 19 August 2020 at paragraph 6, DCB202; McCullough witness statement 23 September 2020 at paragraph 35(g), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(f), DCB7304.

 137   Rebis witness statement 19 August 2020 at paragraph 2, DCB182; Transcript, 6 November 2020 at PN870-874; McCullough witness statement 23 September 2020 at paragraph 35(c), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(h), DCB7304.

 138   Gallaher witness statement 19 August 2020 at paragraph 5, DCB201-202; McCullough witness statement 23 September 2020 at paragraph 35(f), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(b), DCB7303; Morgan witness statement 23 September 2020 at paragraph 9, DCB3621.

 139   Crowe witness statement 19 August 2020 at paragraph 12 and 37-44, DCB213, 217-218; McCullough witness statement 23 September 2020 at paragraph 35(h), DCB6987; Nagle witness statement 23 September 2020 at paragraph 30(h), DCB7304.

 140   Attachment KG-1, DCB210.

 141   Attachment KG-1, DCB211.

 142   Nagle supplementary witness statement 4 November 2020 at paragraph 11, DCB8765; Attachment TN-9, SCB8775.

 143   Gallaher witness statement 19 August 2020 at paragraphs 16-17, DCB204.

 144   Transcript 16 November 2020 at PN1875-1881.

 145   Transcript 17 November 2020 at PN2347.

 146   Transcript 16 November 2020 at PN1885-1888.

 147   HSU Reply Submissions at paragraph 26, DCB7578.

 148   Transcript 16 November 2020 at PN1313, PN1316-1321.

 149   Which was defined in s.3 of the Mental Health Act 2014 (Vic) as “a ward, unit, department or component of a hospital managed by a nurse or midwife who is undertaking…the role of a nurse or midwife unit manager or equivalent”.

 150   DCB3744.

 151   DCB3810.

 152   DCB4100.

 153   DCB243.

 154   (1997) 79 FCR 43.

 155   DCB4405.

 156   DCB4436.

 157   DCB152.

 158   DCB4457.

 159   DCB479.

 160   DCB663.

 161   DCB829.

 162   DCB8321.

 163   DCB827.

 164   DCB4440.

 165   Ibid at Clause 2.1.

 166   DCB5031.

 167   DCB5182.

 168   DCB5464.

 169   VHIA Closing submissions dated 26 November 2020 at [62] and references therein.

 170   Final Submissions of the HSU dated 26 November 2020 at [46].

 171   DCB479.

 172   Rebis reply witness statement 19 October 2020 at paragraphs 5-7, DCB7592–7593; Transcript 6 November 2020 at PN880-PN883; Darmanin reply witness statement 19 October 2020 at paragraph 7, DCB7603; Transcript 6 November 2020 at PN944-948.

 173   [2017] FWCFB 5826.

 174   Ibid at [26].

 175   [2017] FWCFB 5826 at [27], see also Aerocare Flight Support Pty Ltd t/as Aerocare Flight Support v Transport Workers’ Union of Australia [2018] FCAFC 74 at [12] in which the Full Court describes the guidance summarised by the Full Bench at [27] as persuasive.