Ouseph v State of Queensland (Queensland Health)
[2021] QIRC 104
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- Ouseph v State of Queensland (Queensland Health)[2021] QIRC 104
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Ouseph v State of Queensland (Queensland Health)[2021] QIRC 104
Ouseph v State of Queensland (Queensland Health)[2021] QIRC 104
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ouseph v State of Queensland (Queensland Health) [2021] QIRC 104 |
PARTIES: | Ouseph, Tintu Kunnathu (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2021/26 |
PROCEEDING: | Public Service Appeal – Fair Treatment Decision |
DELIVERED ON: | 26 March 2021 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
DATES OF WRITTEN SUBMISSIONS: | Respondent's written submissions filed on 4 February 2021 and Appellant's written submissions in reply filed on 23 February 2020 |
ORDERS: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
|
CATCHWORDS: | INDUSTRIAL LAW – public service appeal – appellant qualified as a Registered Nurse in India – appellant required to undertake a bridging course before appellant could be registered in Australia by the Australian Health Practitioner Regulation Agency – appellant registered in Australia – appellant commenced employment with the State of Queensland where the Nurses and Midwives (Queensland Health) Award – State 2015 applied to appellant's employment – appellant requested her nursing experience in India be recognised for the purposes of determining her classification paypoint pursuant to cl 12.6(a) of the Award – respondent decided to refuse appellant's request because all Hospital and Health Services had determined that, where an overseas trained nurse was required to undertake a bridging course in Australia prior to registration, overseas nursing experience would not be recognised for the purposes of determining paypoint – whether decision was fair and reasonable – whether decision applied the terms of cl 12.6(a) of the Award – decision did not apply the terms of cl 12.6(a) of the Award – decision not fair and reasonable – decision set aside and returned to the decision maker with a copy of the decision on appeal and a direction that the appellant's request be reconsidered by applying the provisions of cl 12.6(a) of the Award |
LEGISLATION: | Health Practitioner Regulation National Law (Queensland), s 53 Industrial Relations Act 2016, s 451 and s 562 Nurses and Midwives (Queensland Health) Award - State 2015, cl 12.6 Public Service Act 2008, s 194 |
CASES: | Brisbane City Council v Queensland Services, Industrial Union of Employees [2021] QIRC 005 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 |
Reasons for Decision
Introduction
- [1]Ms Tintu Kunnathu Ouseph is employed as a Registered Nurse ('RN') at the Bundaberg Hospital which is operated by the Wide Bay Hospital and Health Service ('the Health Service').
- [2]Ms Ouseph is employed by the State of Queensland through Queensland Health ('the Department'). Ms Ouseph completed a Bachelor of Science in Nursing at the Pondicherry University, India, in 2008 and she then worked as a RN in India between 2009 and 2019.
- [3]In 2018, Ms Ouseph sought registration in Australia as a RN. For that to occur, Ms Ouseph was required, by the Australian Health Practitioner Regulation Agency ('AHPRA'), to complete a bridging course. Ms Ouseph completed the bridging course, consisting of 360 attendance hours, in August 2018. Subsequently, Ms Ouseph was registered as a RN by AHPRA from 10 September 2018.
- [4]Ms Ouseph commenced employment with the State as a RN in the Central West Hospital and Health Service in September 2019. From 27 April 2020, Ms Ouseph worked as a RN in the Health Service.
- [5]The Nurses and Midwives (Queensland Health) Award - State 2015 ('the Award') applies to Ms Ouseph's employment. Clause 12.6(a) of the Award relevantly provides that in determining the applicable paypoint for an employee, an employee is to be given credit for all previous nursing experience at the relevant nursing level or higher. The Award classification of Ms Ouseph's position is Nurse Grade 5. There are seven paypoints in that classification.
- [6]In October 2020, Ms Ouseph sought recognition of her previous service in India as a RN for the purposes of determining her Nurse Grade 5 paypoint which, at that time, was paypoint 2. By letter dated 16 November 2020, the Health Service denied this request for the reason that because Ms Ouseph was required to complete the bridging course in Australia prior to being registered with AHPRA, her prior nursing experience abroad would not be recognised for the purposes of determining her paypoint.
- [7]Following that, the Queensland Nurses' and Midwives Union ('the Union'), on behalf of Ms Ouseph, pursued her claim, contending that other staff with similar experience to Ms Ouseph were receiving remuneration at paypoints which took into consideration the work those employees had completed in India. The subsequent written decision of Mr Peter Heinz, Executive Director, Human Resource Services of the Health Service, dated 17 December 2020, rejected Ms Ouseph's claim for the same reasons given by the Health Service in November 2020 ('the decision').
- [8]By appeal notice given by Ms Ouseph on 8 January 2021, she appeals against the decision as a fair treatment decision within the meaning of s 194(eb) of the Public Service Act 2008 ('the PS Act'). The order sought by Ms Ouseph is that the decision be set aside. The Health Service does not dispute that Ms Ouseph's appeal is competent.
- [9]The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.[1]
- [10]The parties exchanged written submissions in accordance with a Directions Order dated 12 January 2021. The Union was Ms Ouseph's agent. Pursuant to s 451(1) of the Industrial Relations Act 2016 ('the IR Act') the appeal was determined on the papers.
- [11]For the reasons that follow, the decision was not fair and reasonable.
Ms Ouseph's grounds of appeal and submissions
- [12]In her appeal notice, Ms Ouseph contended:
- Eligibility for recognition of previous nursing experience
- 2.1 The Appellant refers to Human Resources Policy C59 Determining Salary Levels Upon Appointment (the Policy) clause 7.11.2 and notes there is nothing to indicate prior international nursing service cannot be recognised where a bridging course has been undertaken prior to AHPRA registration.
https://www.health.qld.gov.au/_data/assets/pdf_file/0031/395806/qh-pol-123.pdf
- 2.2The Applicant maintains the Respondent has provided no authority under which to reject this service.
- 2.3The Policy relevantly states:
7.11.2 Interstate and international nursing and midwifery experience
Interstate and international nursing and midwifery experience is recognised if a nurse or midwife was employed in accordance with a relevant nursing Award or industrial instrument, or a licence to was required.
Equivalence of the level of the interstate or overseas nursing and midwifery experience with the Queensland nursing career structure is to be made with reference to the generic level statements contained within attachment 2 of the Nursing and Midwifery Classification Structure HR Policy 87.
- 2.4To practice in India as a RN, the Appellant required a licence to practice - a nursing registration recognised by the relevant registration board.
- 2.5The Appellant's tertiary training in India and registration was sufficient to make her eligible to complete the bridging course and obtain AHPRA registration in Australia.
- Bridging Course
- 3.1The bridging course undertaken by the Appellant to gain registration in Australia was undertaken in 360 hours, with 200 of those hours constituting "Professional Experience Placement" (Attachment C). This placement could not have been undertaken if the Appellant had not already completed nursing training and obtained suitable qualifications in India.
- 3.2This course prepared the Appellant for work within the Australian health system, it did not train her to become a nurse. Entry into the course required a suitable overseas nursing qualification. In the case of the Appellant, this was a Bachelor of Science in Nursing, Pondicherry University.
- 3.3The purpose of the bridging course was to enable AHPRA registration. It is not a requirement of Queensland Health or the Respondent.
The Department's submissions
- [13]The Department submitted that:
- because Ms Ouseph, upon her seeking registration in Australia as a RN, did not qualify for such registration in Australia, she was required to complete a bridging course approved by the Nursing and Midwifery Board of Australia ('NMBA');
- the requirement to complete such a bridging course was because, pursuant to s 53(b) of the Health Practitioner Regulation National Law (Queensland),[2] Ms Ouseph's qualifications were not considered to be 'substantially equivalent' or 'based on similar competencies' to an approved qualification;
- it was the position of all Hospital and Health Services, adopted from the unanimous decision of the Executive Directors of Nursing and Midwifery Forum (a State‑wide committee of the Department), that if an overseas trained nurse was required to complete a bridging course prior to registration with AHPRA, then prior nursing experience abroad would not be recognised for paypoint purposes[3] ('the HHS position');
- the rationale for the HHS position was that if a nurse was required to complete a bridging course, they were not working at the same knowledge and experience level as a RN in Australia or a RN from the United Kingdom, Canada or other country of which AHPRA deemed their qualification to be equivalent for registration purposes;
- cl 12.6(a) of the Award requires that the previous experience be at the 'relevant nursing/midwifery level or higher' and as Ms Ouseph's qualification was not considered to be 'substantially equivalent' or 'based on similar competencies' to an approved qualification by AHPRA and required Ms Ouseph to undertake further study and assessment before she could practice in Australia, it '… therefore follows that the Appellant's prior experience cannot be "at the relevant nursing/midwifery level or higher" in accordance with the Award.';
- cl 12.6(b) of the Award has no application to Ms Ouseph's classification level and is not applicable;
- the departmental Human Resources Policy entitled 'Determining Salary Levels Upon Appointment' No. C59 ('the Policy') relevantly provides:
7.11.2 Interstate and international nursing and midwifery experience
Interstate and international nursing and midwifery experience is recognised if a nurse or midwife was employed in accordance with a relevant nursing Award or industrial instrument, or a licence to practice was required.
Equivalence of the level of the interstate or overseas nursing and midwifery experience with the Queensland nursing career structure is to be made with reference to the generic level statements contained within attachment 2 of the Nursing and Midwifery Classification Structure HR Policy B7; and
- both paragraphs of cl 7.11.2 of the Policy must be read together and they are not mutually exclusive, such that while Ms Ouseph had a licence to practice in India, it was not recognised for registration purposes in Australia, and it follows that there cannot be an equivalency with generic level statements in HR Policy B7, where Ms Ouseph's overseas qualification was not considered to be 'substantially equivalent' or 'based on similar competencies' to be an approved qualification in Australia.
- [14]The Department concluded by submitting:
- The decision not to recognise the Appellant's international service was fair and reasonable, firstly; because it was logical as it reflected AHPRAs decision not to recognise the Appellant's qualification for registration purposes, secondly; because it followed the determination of members of the EDNMS Forum having turned their minds to the issue approximately two years prior and determined unanimously to interpret and apply the provision in a way so as to ensure consistency for all overseas qualified Registered Nurses across the 16 hospital and health services; thirdly because neither the Award or the Policy provided an entitlement to the Appellant for the service in question (based on the Respondent's interpretation of the relevant provisions), and fourthly, because the reasoning contained within the decision was sufficient. For all the above reasons the Respondent respectfully submits the decision should be confirmed.
Ms Ouseph's submissions in reply
- [15]In reply, Ms Ouseph relevantly submitted:
- the requirement for her to complete the bridging course to gain an NMBA registration is not relevant;
- the bridging course is essentially the method by which the NMBA ensures all overseas trained applicants for nursing registration meet the standard for such registration, and the course does not teach the skills and knowledge obtained in a nursing course such as a Bachelor of Nursing;
- the Department unreasonably assumes that her previous nursing work (overseas) could not be relevant by the mere fact that she had to undertake the course for NMBA determination about her qualifications;
- the NMBA determination has no relevance to her overseas experience;
- the completed bridging course and subsequent registration was because her skills and knowledge were ascertained to be equivalent to that of an Australian trained RN;
- pursuant to cl 12.6(a) of the Award, the Department should have assessed that her overseas experience and skill level were relevant and equivalent to the appropriate nursing paypoint; rather, the Department incorrectly assumed she did not meet the relevant experience for a higher paypoint simply because of the NMBA registration requirements;
- cl 12.6(b) of the Award is relevant because she was required to obtain '… a licence in India to practice as a registered nurse' and once her '… overseas experience had been assessed as relevant as per clause 12.6(a), clause 12.6(j) should have been applied to determine her paypoint in line with clause 12.6(b).';
- the HHS position is not clearly reflected in the Policy or in the Award; and
- since she has commenced work as a RN at the Bundaberg Hospital, she has utilised her skills and prior overseas experience to the benefit of the Health Service, such that '… it is unfair and unreasonable to refuse to consider paying her appropriately.'
- [16]By way of summary, Ms Ouseph submits:
- The bridging course was undertaken for the purposes of registration with NMBA and is irrelevant to the Appellant's prior experience. It was not a requirement of Queensland Health or the Respondent.
- The decision not to recognise the Appellant's overseas service was based on a Direction determined by the EDNMS group without any consultation and is not reflected in the Award or Queensland Health policy.
- The Respondent merely relies on this Direction and there is no evidence there was any consideration given to the Appellant's individual experience in line with paragraph two of clause 7.11.2 of HR Policy C59 and the generic level statements in HR Policy B7.
- The Respondent has relied on and is benefiting the Appellant's prior overseas experience in her daily work. She was commenced on the same pay point as a new graduate nurse yet the work she undertook from the start was far in advance of the level expected of a new graduate.
The decision was not fair and reasonable
- [17]In my view, having regard to the submissions made by Ms Ouseph and by the Department, the determination of whether or not the decision was fair and reasonable requires consideration of cl 12.6(a) of the Award. That is to say, the parties did not dispute that cl 12.6(a) of the Award is the relevant provision that requires an assessment to be made, of an employee's nursing experience, for the purposes of determining the classification paypoint of an individual employee.
- [18]In Brisbane City Council v Queensland Services, Industrial Union of Employees,[4] I set out the principles in respect of the construction of an award made by the Queensland Industrial Relations Commission. The first of those principles is that the task of construction begins with the consideration of the ordinary meaning of its words.[5]
- [19]Clause 12.6 of the Award relevantly provides:
12.6 Recognition of previous nursing experience
- (a)For the purpose of determining the applicable paypoint, an employee is to be given credit for all previous nursing/midwifery experience at the relevant nursing/midwifery level or higher. This will include time spent in obtaining additional nursing/ midwifery certificates/qualifications other than the general nursing certificate/qualification.
- [20]It seems to me that having regard to the ordinary words of cl 12.6(a) of the Award, it is mandatory for an employee to be given credit for all previous nursing/midwifery experience at the relevant nursing/midwifery level or higher. Mr Heinz, in his decision dated 17 December 2020, relevantly stated:
The view of the WBHHS is that the advice provided to Ms Ouseph on 16 November 2020, from Ms Fiona Sewell, Executive Director Nursing and Midwifery Services remains.
As Ms Ouseph was required to complete a Bridging Course by the Australian Health Practitioner Regulation Agency (AHPRA) in 2018, prior to being registered as a Registered Nurse within Australia, the WBHHS are unfortunately unable to recognise Ms Ouseph's previous experience as [sic] Registered Nurse in India, for the purposes of increasing her increment.
As Ms Ouseph was previously advised, the advice provided within the correspondence from Ms Sewell on 16 November 2020 was clarified and confirmed with Employment Relations Corporate, Department of Health. I have provided a direct quote from the Principal Advisor, Employment Relations, Human Resources Branch, Corporate Services Division below:
'If an overseas trained nurse is required to complete a Bridging Course in Australia, prior to being able to be registered with AHPRA, then prior nursing experience abroad will not be recognised for the purposes of the paypoint they are appointed to'.
I trust this provides clarity to your query.
- [21]Having regard to this decision, it seems to me that Mr Heinz did not turn his mind to the matter that cl 12.6(a) of the Award required him to consider in determining whether Ms Ouseph's service as a RN in India would be recognised for the purposes of determining her paypoint in the Nurse Grade 5 classification. As referred to above, cl 12.6(a) requires that an employee is to be given credit for all previous nursing/midwifery experience at the relevant nursing/midwifery level or higher.
- [22]The decision was based upon a broad determination made by the Executive Directors of Nursing and Midwifery Forum (which was adopted as the HHS position), that if an overseas trained nurse was required to complete a bridging course in Australia, prior to being able to be registered with AHPRA, then prior nursing experience abroad will not be recognised for the purposes of determining the employee's paypoint. That is not what cl 12.6(a) of the Award requires the employer to consider in the application of that provision.
- [23]Mr Heinz, in his decision, does not dispute that Ms Ouseph had previous experience as a RN in India. However, in coming to his decision, there is no indication, on the face of Mr Heinz' decision, that he gave consideration to the precise nature of Ms Ouseph's previous nursing experience in India in making his decision not to recognise that service for the purposes of determining Ms Ouseph's paypoint. Such a consideration could not take place due to Mr Heinz' observance of the HHS position which, due to its very nature, does not permit a consideration of an individual's nursing experience.
- [24]As best as I can make out from the material submitted by the Department, the HHS position does not take into account the previous nursing experience of an individual; rather, it focuses on the fact that if a nurse was required to complete a bridging course in Australia, for the purposes of that person's registration with AHPRA, then for that reason alone, the employee's previous (overseas) nursing experience is not to be taken into account for the purposes of determining the employee's paypoint.
- [25]The Department submitted that cl 12.6(a) of the Award required that the previous experience be at the 'relevant nursing/midwifery level or higher' and as Ms Ouseph's qualification was not considered to be 'substantially equivalent' or 'based on similar competencies' to an approved qualification by AHPRA - which required Ms Ouseph to undertake further study and assessment before she could practice in Australia - it followed that her prior experience could not be at the relevant nursing/midwifery level or higher in accordance with the Award.
- [26]With respect, this submission conflates the issue of the recognition of a qualification for registration as a RN by AHPRA, with the relevant consideration in cl 12.6(a) of the Award, namely, previous nursing experience at the relevant nursing level. Having regard to the clear purpose of cl 12.6(a) of the Award, such previous nursing experience can only be assessed on an individual by individual basis. It seems to me that cl 7.11.2 of the Policy provides the process by which the employer is to make that assessment.
- [27]In my view, the material consideration in cl 12.6(a) of the Award - an individual's nursing experience at the relevant nursing level - was not taken into account by Mr Heinz because of the distraction of the HHS position.
- [28]For these reasons, my view is that Mr Heinz' decision was not fair and reasonable. Mr Heinz failed to take into account the material consideration in the application of cl 12.6(a) of the Award, namely, Ms Ouseph's previous nursing experience. The AHPRA requirement that Ms Ouseph complete the bridging course to be able to be registered as a RN in Australia is a different issue to that expressly referred to in cl 12.6(a) of the Award. The former concerns the requirement for registration as a RN in Australia. The latter is about an assessment of previous nursing experience at the relevant nursing level.
- [29]In these circumstances, the appropriate order that I should make is:
- the decision is set aside;
- the matter is returned to Mr Heinz, with a copy of this decision on appeal; and
- that Mr Heinz be directed to reconsider Ms Ouseph's request, for her previous nursing experience in India to be taken into account in determining her paypoint, by applying the provisions of cl 12.6(a) of the Award.
Conclusion
- [30]The question of this appeal was whether Mr Heinz' decision was fair and reasonable.
- [31]For the reasons given above, Mr Heinz' decision was not fair and reasonable.
Orders
- [32]I make the following orders:
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
- (a)the decision is set aside;
- (b)the matter is returned to the decision maker with a copy of this decision on appeal; and
- (c)the decision maker is directed to reconsider Ms Ouseph's request, for her previous nursing experience in India to be taken into account in determining her paypoint, by applying the provisions of cl 12.6(a) of the Nurses and Midwives (Queensland Health) Award - State 2015.
Footnotes
[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7].
[2] Section 53 of the Health Practitioner Regulation National Law (Queensland) relevantly provides:
53 Qualifications for general registration
An individual is qualified for general registration in a health profession if-
…
- (b)the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification;
[3] The HHS position was set out in an email, attached to the Department's submissions, from Mr Andrew Stevens, Principal Advisor, Employment Relations of the Department, to Ms Connie Hansen, Senior Employment Relations Adviser, Bundaberg Hospital, dated 9 September 2020, which relevantly stated:
I can confirm that the 16 Executive Directors of Nursing have agreed as a group, that if an overseas trained nurse is required to complete a Bridging Course in Australia, prior to being able to be registered with AHPRA, then prior nursing experience abroad will not be recognised for the purposes of the paypoint they are appointed to.
[4] [2021] QIRC 005, [35]-[42].
[5] Ibid [35].