Dec 1559/97 S Print P7638

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.99 notification of industrial dispute

s.107 reference of notification to Full Bench

Health Services Union of Australia

and

Kindilan Society

(C No. 34926 of 1995)

s.113 applications for variation

s.107 reference of applications to Full Bench

Health Services Union of Australia

(C No. 11398 and 11440 of 1995)

HEALTH SERVICES UNION OF AUSTRALIA (VICTORIA - PRIVATE SECTOR) INTERIM AWARD 1993

(ODN C No. 31827 of 1992)

[Print L0831 [H0154]]

Health Services Union of Australia

(C No. 32662 of 1996)

HEALTH AND ALLIED SERVICES - PRIVATE SECTOR - VICTORIA

AWARD 1995

(ODN C No. 33278 of 1994)

[Print M6132 [H0488]]

Health Services Union of Australia

(C No. 32706 of 1996)

HEALTH (RESIDENTIAL CARE - VICTORIA) AWARD 1995

(ODN C No. 30578 of 1991)

[Print M6133 [H0370]]

Health workers Health and welfare services

SENIOR DEPUTY PRESIDENT MACBEAN

SENIOR DEPUTY PRESIDENT WATSON

COMMISSIONER O'SHEA MELBOURNE, 22 DECEMBER 1997

Award provisions

DECISION

These matters have been the subject of numerous proceedings before this Commission. Some of the issues canvassed were also in contention before the Industrial Relations Commission of Victoria up to a decade ago. A number of the issues are complex and result from different views which are strongly held by one or another party.

The background and conduct of the present proceedings are detailed in the Report prepared by Commissioner O'Shea pursuant to s.107(10) of the Workplace Relations Act 1996. We have attached this Report to our decision [Annexure A] and therefore do not consider it necessary to set down separately the detail of the Report. It is sufficient to say that we have considered all the evidence and submissions before us and this decision contains our findings on the applications made by the Health Services Union of Australia (HSUA).

In summary, the HSUA applications are intended to:

· Bring the substantive coverage of the disability services sector in Victoria within the Health and Allied Services - Private Sector - Victoria Award 1995 (HASA Award);

· Remove access to a 24 hour roster arrangement under this Award;

· Introduce a defined Disability Services Stream within that Award.;

· Make provision for a sleepover allowance of $60 per sleepover;

· Make provision for a certificate allowance; and

· Restrict the coverage of the Health (Residential Care - Victoria) Award 1995 (Resicare Award) to "Cottage Parents".

In support of its applications, the HSUA relies predominantly on the special case, work value and structural efficiency principles of the Commission's Wage Fixing Principles, as well as legislative objects which go to the provision of secure, relevant and consistent wages and conditions of employment. The joint employer parties oppose the HSUA applications.

In determining the matters before us, we have applied the relevant provisions of the Act and the current Statement of Wage Fixing Principles. On the evidence and material before us, the Commission is not satisfied that an argument has been made out that these applications should be treated as a special case within the terms of the wage fixing principles. On the basis of what we have been told there would seem to be room for continued discussions between the parties to secure enterprise bargaining agreements.

We do, however, accept that the HSUA's applications, based on work value and structural efficiency principles, can be dealt with and determined on merit under the principles without a finding of a special case being made.

We also accept that there are issues which have impeded the parties' capacities to reach agreement within the enterprise bargaining framework and our determination of these issues is designed to assist the parties in this regard. So that our purpose in the remainder of this decision is clearly understood, we refer the parties to the Introduction of the current Statement of Principles and state that our findings are consistent with the legislative framework and role of the Commission outlined therein.

"1. Introduction

The Commission's findings in the matters before it in these proceedings are as follows:

1. On the evidence and the material before us, we are is satisfied that the disability services sector in Victoria covered by the awards which are the subject of these HSUA applications should not be the subject of significantly different pay rates and conditions for work of a similar nature.

2. It is our view that this disability services sector award should be a "stand alone" award providing common rates and conditions for employees who are employed by employers who are currently respondent to the HASA and/or the Resicare Awards and which are encompassed within the present applications made by the HSUA. This is our view with one important proviso. That proviso is that we have concluded that a case has been made out for some additional flexibility to be available to the providers of the smaller residential services. Within the award that we propose, therefore, there will be a separate category for providers of residential services within the sector at the smaller end of the scale. This category will provide those smaller providers of residential services with the capacity to use a 24 hour roster as an alternative to roster patterns generally set by the award.

3. Within the disability services sector award which is proposed, there shall be a single classification structure. This classification structure will need to have regard to s.88B(3)(a) of the Act and be consistent with the requirements of the Commission's August 1988, August 1989 and subsequent National Wage Decisions.

4. On the issue of sleepover allowance, we have concluded that no case has been made out for the amount sought by the HSUA. The current provision and amount in the Resicare Award should be retained as the award safety net, subject to any adjustment that might be warranted in accordance with principle 3.2.3. The matter of sleepovers and arrangements at particular workplaces are more appropriate to be dealt with by way of individual negotiations, given the emphasis in the Act and the wide range of practices which are apparent within the sector.

5. We do not accept that part of the HSUA claim which goes to a claim for a qualifications allowance based on ACRACS. We determine that the classification structure should be graded as to recognise additional qualifications in the award rate. On this matter we agree with the submissions of the employers.

6. In determining that smaller providers should have the ability to engage workers on a 24 hour roster model, we are also satisfied that the rate of pay for employees engaged on a 24 hour roster needs to be reviewed as part of the exercise of applying structural efficiency and minimum rates adjustment. The evidence before the Commission was that a 24 hour roster can be onerous and may limit an employee's family and social activities to a greater degree than an eight hour roster. We note that the Resicare Award currently provides a rate of $515.30 per week for a 24 hour worker [First Year Care Worker - CSV Funded] against $399.70 per week for the eight hour worker. This is a premium of about 29%. The premium for First Year Assistant Care Worker is about 29-30%. The premium for a Grade 1 Supervisor after three years of experience is over 28%.

The parties to these proceedings are directed to confer and submit a draft disability services sector award to give effect to the Commission's determination of these applications. As well as conferring on the classification structure as specified earlier in this decision, the parties are also to confer on suitable provisions for inclusion in the award. The award to be made will need to meet the requirements of the Act (for example, s.88B(3)(a), s.89A and s.143) and the Commission's Wage Fixing Principles.

The parties are also required to confer on an incidence/scope clause for the new award which will give effect to the intention of the HSUA that the outcome of its applications do not extend coverage beyond that presently held by the HSUA in this sector.

We will list this matter again following the lodgement of a draft order by the parties. In those proceedings, we will determine any outstanding matters, including operative date.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.99 notification of industrial dispute

Health Services Union of Australia

and

Kindilan Society

(C No. 34926 of 1995)

s.113 applications for variation

Health Services Union of Australia

(C No. 11398 and 11440 of 1995)

HEALTH SERVICES UNION OF AUSTRALIA (VICTORIA - PRIVATE SECTOR) INTERIM AWARD 1993

(ODN C No. 31827 of 1992)

[Print L0831 [H0154]]

Health Services Union of Australia

(C No. 32662 of 1996)

HEALTH AND ALLIED SERVICES - PRIVATE SECTOR - VICTORIA

AWARD 1995

(ODN C No. 33278 of 1994)

[Print M6132 [H0488]]

Health Services Union of Australia

(C No. 32706 of 1996)

HEALTH (RESIDENTIAL CARE - VICTORIA) AWARD 1995

(ODN C No. 30578 of 1991)

[Print M6133 [H0370]]

Health workers Health and welfare services

COMMISSIONER O'SHEA MELBOURNE, 4 JULY 1997

Report pursuant to s.107(10)

REPORT

Contents

Part 1 Process

Part 2 Background

Part 3 The Applications

Part 4 Material before the Commission

Part 5 Issues for Consideration

In this Report the following abbreviations are used:

HSUA = Health Services Union of Australia

VECCI = Victorian Employers' Chamber of Commerce and Industry

VICSEA = Victorian Community Services Employers' Association

HASA Award = Health and Allied Services - Private Sector Victoria Award 1995

Resicare Award = Health (Residential Care - Victoria) Award 1995

AEU = Australian Education Union, Victorian Branch

CSW = Community Support Worker

SEP = Structural Efficiency Principle

IRCV = Industrial Relations Commission of Victoria

ACRACS = Advanced Certificate in Residential and Community Services

ASF = Australian Standards Framework

ASU = Australian Municipal, Administrative, Clerical and Services Union.

Part 1 Process

In proceedings on 10 May 1996 in matters C Nos 34926/95, 11398/95 and 11440/95, the Health Services Union of Australia (HSUA) made application for these matters to be referred to a Full Bench under s.107 of the Act. On 15 May 1996, the President decided, under s.107 of the Act, to grant the application and constituted a Full Bench to hear these matters.

In proceedings before the Full Bench on 21 May 1996, the HSUA referred to a further application under s.113 (C No. 32662/96) and made application for this matter to be referred to a Full Bench under s.107 of the Act. On 21 May 1996, the President decided, under s.107 of the Act, to grant this application and referred this matter to the Full Bench constituted to deal with matters C Nos 34926/95, 11398/95 and 11440/95.

On 23 May 1996, the HSUA lodged an application under s.113 of the Act to vary certain provisions of the Health (Residential Care - Victoria) Award 1995. This is matter C No. 32706/96. In proceedings on 31 May 1996, the HSUA made application for this matter also to be referred to a Full Bench under s.107 of the Act. On 4 June 1996, the President decided, under s.107 of the Act, to grant this application and referred this matter also to the Full Bench constituted to deal with C Nos 34926/95, 11398/95 and 11440/95 and 32662/96.

On 22 May 1996, the Full Bench constituted to deal with these matters decided, pursuant to s.107(10), to direct Commissioner O'Shea to provide a report to the Full Bench on the various applications by the HSUA before the Bench in C Nos 34926/95, 11398/95, 11440/95 and 32662/96 [Print N1858].

On 14 June 1996, the Full Bench constituted to deal with these matters decided, pursuant to s.107(10), to direct Commissioner O'Shea to provide a further report to the Full Bench in respect of matter C No. 32706/96 [Print N2566].

On 4 December 1996, the Full Bench granted leave to the HSUA to amend its application in C No. 32662/96.

While these matters have been before the Full Bench for the preparation of this Report, and by agreement of the parties, enterprise bargaining discussions between the parties have also been continuing. The Commission chaired enterprise bargaining discussions between the parties on the following dates:

· 20, 24 and 31 May 1996;

· 7 and 17 June 1996;

· 3 and 19 July 1996;

· 1, 14 and 30 August 1996;

· 17 December 1996; and

· 19 May 1997.

Part 2 Background

Before dealing with the current issues the parties have placed before the Bench, a brief summary of the background to these matters is provided.

On 27 June 1995, the Victorian Employers' Chamber of Commerce and Industry (VECCI) notified a dispute pursuant to s.99 of the Act (C No. 34926/95). The notification was said to concern demands made by HSUA members employed by Kindilan Society. The dispute notification was listed for 3 August but this hearing was deferred indefinitely at the request of the notifier. On 1 December 1995, VECCI sought the urgent hearing of the matter. Its concern was the proposed commencement of industrial action, in the form of bans by the HSUA and its members in support of industrial demands. Industrial action was to commence on 6 December 1995.

There were proceedings in the Commission on 4 December 1995 and the Commission made a series of recommendations.

On 5 December 1995, VECCI made application for the insertion of a stand-down clause in the award (C No. 11301/95). The Commission chaired a conference of the parties on 7 December and made further recommendations as to how the matters at issue between the parties might be dealt with. The application for a stand-down clause was adjourned indefinitely.

On 11 December 1995, the HSUA lodged an application under s.113 of the Act to vary the Health Services Union of Australia (Victoria - Private Sector) Interim Award 1993 "by the improvement of wages and conditions, the full details of which will be provided to the relevant employer representatives by Tuesday 12 December 1995". This is the application in C No. 11398/95.

On 12 December 1995, the HSUA lodged an application under s.113 of the Act to vary the Health Services Union of Australia (Victoria - Private Sector) Interim Award 1993. The variations sought were is some detail and went to, inter alia, wage rates, certificate allowance, sleepovers and definitions. A number of grounds relied upon by the HSUA was lodged with the application. This is the application in C No. 11440/95.

The Commission chaired a further conference of the parties on 12 December 1995. Now in receipt of the applications to vary the award, the Commission listed these various matters on 21 December 1995 for programming and directions. (On 21 December 1995, the Commission also listed C No. 10099/95 which was a s.99 dispute notification concerning the HSUA and the Deaf-Blind Association. That matter has subsequently been the subject of separate proceedings in the Commission before Commissioner O'Shea and then Senior Deputy President MacBean.)

At the conclusion of proceedings on 21 December 1995, the Commission joined C Nos 34926/95, 11398/95 and 11440/95 and issued directions for the lodgement of written submissions by the parties. The joined matters were adjourned to 4 March 1996.

The hearing scheduled for 4 March 1996 was vacated by the Commission due to written submissions not being available as anticipated. HSUA written submissions were received on 22 February 1996 and joint Victorian Community Services Employers' Association (VICSEA)/VECCI written submissions were received on 4 March 1996.

These matters next came before the Commission on 7 May 1996. The Commission was informed of the imposition of work bans. In proceedings on 10 May 1996, the Commission received an application under s.107, chaired a conference of the parties and issued recommendations about industrial action. Following further proceedings in the Commission on 13 May and 14 May, and advice that HSUA Shop Stewards had resolved on 14 May to continue industrial action, the Commission made a direction, on 14 May, for the cessation of industrial action [Print N1690]. Following further negotiations between the parties, the VICSEA and VECCI reached a memorandum of understanding with the HSUA on 16 May. This agreement between the parties resulted in the suspension of industrial action, a commitment by all parties to enter into enterprise bargaining discussions and the pursuit of claims before a Full Bench. This agreement between the parties led to the applications made by the HSUA in C Nos 32662/96 and 32706/96 being lodged subsequently and these matters are now the subject of consideration and determination by the Full Bench.

The substantive matters before the Bench are now found in matters:

· C No. 32662/96 (an application by HSUA to vary the Health and Allied Services - Private Sector Victoria Award 1995 (HASA Award) re wages and working conditions); and

· C No. 32706/96 (an application by HSUA to vary the Health (Residential Care - Victoria) Award 1995 (Resicare Award) re wages and conditions).

C No. 32662/96 replaces the HSUA's application in C No. 11440/95 (and in turn in C No. 11398/95) and C No. 32706/96 complements the application in C No. 32662/96. While C No. 34926/95 is before the Bench, it is a matter confined to a dispute concerning industrial action and can be treated as supplementary to the substantive applications.

For all practical purposes then, the matters for consideration and determination by the Full Bench are the applications found in C Nos 32662/96 and 32706/96 (and the parties have incorporated some material before the Commission in the previous matters into these applications) and the remainder of this Report deals with the evidence and issues put before the Commission in relation to these applications.

In relation to C No. 10099/95 (the s.99 dispute between the HSUA and the Deaf-Blind Association), the matter was before Commissioner O'Shea again on 10 January 1996 when an objection under s.105 of the Act was made. The matter was subsequently the subject of proceedings before Senior Deputy President MacBean but was adjourned indefinitely by His Honour following the constitution of the Full Bench dealing with these instant matters. The parties represented in the proceedings before the Full Bench have been given the opportunity to supplement their evidence and submissions on the basis of the matters in dispute in C No. 10099/95 being adjourned.

Part 3 The Applications

(a) The HSUA application to vary the Health and Allied Services - Private Sector Victoria Award 1995 (C No. 32662/96) is at Attachment A to this Report. On 4 December 1996 the Full Bench gave the HSUA leave to amend its application. The amendment to the application to vary is at Attachment B to this Report.

The HSUA application, if granted, would effect, inter alia, the following changes to the relevant award:

(b) The HSUA application to vary the Health (Residential Care - Victoria) Award 1995 (C No. 32706/96) is at Attachment C to this Report.

The HSUA application, if granted, would effect, inter alia, the following changes to the relevant award:

Part 4 Material Before The Commission

This section of the Report provides a summary of the material before the Commission in proceedings to date. For easier reference, the material has been classified as follows:

· Witness evidence.

· Inspections.

· Exhibits.

· Parties' submissions.

(a) Witness evidence

The HSUA has led evidence from the following witnesses:

· Joan Ann Bruntflett. Ms Bruntflett is an employee of the Spastic Society - Glenhuntly Residential Unit. A statement of her evidence is at Exhibit HSUA 11. A record of her evidence is at pages 357 to 386 of transcript. Other statements from Ms Bruntflett taken during inspections on 19 June 1996 are at pages 151 to 158 of transcript.

· Sandra Marie Clarke. Ms Clarke is an employee of St John of God Services, Victoria - Roseman Road and Polaris. A statement of her evidence is at Exhibit HSUA 14. A record of her evidence is at pages 387 to 420 of transcript.

· Frances Margaret Schulz. Ms Schulz is a cottage parent employed by St John's Homes for Boys and Girls. A statement of her evidence is at Exhibit HSUA 15. A record of her evidence is at pages 421 to 429 of transcript. Other statements from Ms Schulz taken during inspections on 29 June 1996 are at pages 203 to 219 of transcript.

· Ashley Albert Cadd. Mr Cadd is an employee of Wesley Youth Services - Dandenong House. A statement of his evidence is at Exhibit HSUA 16. A record of his evidence is at pages 429 to 447 of transcript.

· Ann-Maree Starr. Ms Starr is an employee of Berry Street Inc - Calloway Cottage Diamond Creek. A statement of her evidence is at Exhibit HSUA 17. A record of her evidence is at pages 452 to 480 of transcript. Other statements from Ms Starr taken during inspections on 29 June 1996 are at pages 179 to 202 of transcript.

· Robert Wynter Beddome. Mr Beddome is an employee of The Christian Brothers Child/ Youth Family Services - South Melbourne. A statement of his evidence is at Exhibit HSUA 18. A record of his evidence is at pages 481 to 501 of transcript. Other statements from Mr Beddome taken during inspections on 19 June 1996 are at pages 160 to 176 of transcript.

· Brenda Forbath. Ms Forbath was employed as an organiser and industrial officer of the (HSUA) Victorian No. 1 Branch from 1986 to 1990. A record of her evidence is at pages 502 to 525 of transcript.

· Pamela Maree McCulloch. Ms McCulloch is employed as the Human Resources Manager of Melbourne City Mission. A record of her evidence is at pages 528 to 550 of transcript.

· Anne Louise Monk. Ms Monk is an employee of the Kindilan Society, Red Hill. A statement of her evidence is at Exhibit HSUA 19. A record of her evidence is at pages 550 to 562 of transcript. Other statements from Ms Monk taken during inspections on 19 June 1996 are at pages 119 to 128 of transcript.

· Elizabeth Margaret Brodie Cross. Ms Cross is employed as Director of Services at E.W. Tipping Foundation. A record of her evidence is at pages 564 to 569 of transcript.

· Barbara Donovan. Ms Donovan is employed as Director of Residential Services of Karingal (Geelong). A record of her evidence is at pages 572 to 579 of transcript.

VICSEA has led witness evidence from:

· Neil Headford. Mr Headford is employed by Chase Personnel, which is part of the Silver Chain Group in Western Australia. He is used as a consultant on competency based training and sits on training boards/committees. Documentation prepared by Mr Headford is at Exhibit VICSEA 11. A record of his evidence is at pages 584 to 631 of transcript.

· Ian Aubery Dodds. Mr Dodds is an employee of Canterbury Family Centre (Uniting Church). He is also President of VICSEA. A statement of his evidence is at Exhibit VICSEA 12. A record of his evidence is at pages 680 to 716 of transcript.

The VECCI led witness evidence from:

· Janet Hillary Hausler. Ms Hausler is an employee of Harrison Community Services, Mitcham. A statement of her evidence is at Exhibit VECCI 1. A record of her evidence is at pages 632 to 651 of transcript.

· Peter David Shaw. Mr Shaw was employed as Manager/Secretary of the Woodbine Central Inc. (Warracknabeal) from May 1987 to December 1995. A statement of his evidence is at Exhibit VECCI 2. A record of his evidence is at pages 655 to 679 of transcript.

· Roger Frederick Gough. Mr Gough is the Director of Harrison Community Services, Wantirna (Uniting Church). A statement of his evidence is at Exhibit VECCI 3. A record of his evidence is at pages 716 to 726 of transcript.

The VECCI also seeks to rely on a statement by John Edward Annison and provided to the Commission under cover of VECCI correspondence of 4 June 1996. Mr Annison states he is the acting head of the School of Studies in Disability, Burwood Campus, Deakin University. Mr Annison was not available for cross-examination on his statement.

(b) Inspections

In the course of proceedings, the Commission visited a number of workplaces nominated by the parties. Statements as to the nature of the work and the role of the agency, etc by various management and staff members are recorded.

A summary of the inspections conducted by the Commission is as follows:

(i) Kindilan Society - Red Hill. 19 June 1996. See transcript pages 103 to 128.

(ii) Kindilan Society - Mt Eliza Residential Unit. 19 June 1996. See transcript pages 128 to 135.

(iii) South East Industries (A workshop operated by the Spastic Society of Victoria) Clayton. 19 June 1996. See transcript pages 135 to 145.

(iv) Glenhuntly Residential Unit (operated by the Spastic Society of Victoria). 19 June 1996. See transcript pages 145 - 160.

(v) St Vincents Boys Home, South Melbourne (a home operated by the Christian Brothers Child/Youth Family Services). 19 June 1996. See transcript pages 160 to 176.

(vi) Berry Street/Sutherland Homes Units, Diamond Creek. 29 June 1996. See transcript pages 179 to 202.

(vii) Group Family Home, Heidelberg West (operated by St John's Homes for Boys and Girls). 29 June 1996. See transcript pages 203 to 219.

(viii) Woodbine Centre, Warracknabeal. 4 July 1996. See transcript pages 254 to 265.

(ix) Keilor Day Centre (operated by the Spastic Society of Victoria). 4 July 1996. See transcript pages 266 to 276.

(x) Keilor Centre, Residential Accommodation (operated by the Spastic Society of Victoria). 4 July 1996. See transcript pages 277 to 296.

(xi) Youth Residential Unit (operated by Wesley Central Mission in Mitcham). 5 July 1996. See transcript pages 298 to 308.

(xii) Residential Units operated by Melba Centre, Mt Evelyn. 5 July 1996. See transcript pages 309 to 323.

(xiii) Yarra-Me Centre, Croydon (operated by the Para-Quad Association). 5 July 1996. See transcript pages 324 to 339.

(xiv) Residential Units, Yooralla Society, Box Hill. 5 July 1996. See transcript pages 340 to 352.

(c) Exhibits

Exhibits were tendered by HSUA, VICSEA, VECCI and Vicraid. A full list of exhibits before the Commission is set out at Attachment D to this Report.

The Commission was also provided with correspondence dated 14 June 1996 from the Australian Education Union, Victorian Branch (AEU).

(d) Submissions

(i) HSUA

The HSUA provided a written outline of its submissions (in relation to C Nos 34926/95, 11398/95 and 11440/95) on 22 February 1996. This outline was accompanied by other documentation, including draft witness statements.

The HSUA adopted its earlier outline of submissions in later proceedings which include C Nos 32662/96 and 32706/96. The Union presented its opening submissions on 17 June 1996 (see pages 37 to 86 of transcript).

Following inspections and taking of witness evidence, the HSUA made submissions to the Commission on 14 August. These submissions were largely a summary of the HSUA's views on the evidence before the Commission.

These oral submissions on 14 August were supplemented by further written submissions from the HSUA on 6 September 1996. These submissions were in two parts:

- HSUA reply to VICSEA opening submission; and

- HSUA submissions.

These written submissions have been marked as Exhibit HSUA 23.

Further written submissions were received from the HSUA on 18 October 1996. These are submissions made in reply to submissions of VICSEA, VECCI and Vicraid. Final written submissions were received from the HSUA on 7 February 1997, these submissions are in response to submissions made by employer groups on 7 January 1997.

(ii) VICSEA / VECCI

An outline of submissions was received on 14 March 1996. This was in relation to proceedings in C Nos 34926/95, 11398/95 and 11440/95.

Following the lodgement of applications in C Nos 32662/96 and 32706/96 and the convening of the Full Bench by Her Honour the President, a written outline of opening submissions on behalf of VICSEA/VECCI was received by the Commission on 29 May 1996.

VICSEA opening submissions were put on 17 June and 3 July 1996. These submissions can be found at pages 86 to 101 and 221 to 248 of transcript. On 3 July, VECCI supported those submissions of VICSEA and adopted them as their own (transcript, page 248).

On 4 June 1996, the Commission received correspondence from VICSEA/VECCI. This correspondence attached a number of draft witness statements.

Further written submissions on behalf of VICSEA and VECCI were received by the Commission on 24 September 1996. These written submissions have been marked as Exhibit VICSEA 14. Final written submissions were received on 7 January 1997.

(iii) VICRAID

The VICRAID made brief submissions of general support for the VICSEA/VECCI position on 3 July 1996 (transcript, page 248). Written submissions from VICRAID were received by the Commission on 20 September 1996. These written submissions have been marked as Exhibit VICRAID 1.

Part 5 Issues for consideration

Rather than attempt to reproduce or summarise the evidence and the parties' detailed submissions, it is proposed, in this Report, to identify a number of issues which have been raised in the course of proceedings, and to refer the Bench to the main points made by each party in relation to each issue. Given the nature of the applications before the Commission and the cases presented, there is inevitably some overlap between these issues but it is considered that separating the issues this way offers the best means of concentrating attention on the more significant matters to be addressed.

1. Special Case?

The HSUA contends that pursuant to paragraph 2.1.(b).(ii).(B) of the Commission's Wage Fixing Principles, the decision by the President to refer the matters to a Full Bench is a decision that a special case exists. The HSUA points out that all parties to the proceedings supported the s.107 application which led to the President's decision to have these matters dealt with by a Full Bench.

The VICSEA/VECCI argue that the question of whether or not a special case exists or not must be a decision reserved to the Full Bench to which the matter is referred by the President. A determination that the matter constitutes a special case is a determination based upon the substance and merits of the case. A decision is yet to be given as to whether the matters before the Full Bench constitute a special case. The HSUA has provided no material justifying this to be a special case. Support by employer parties for the s.107 application is not to be taken to infer that there is no opposition to a finding that the matters constitute a special case. It is argued that there is nothing so special, isolated, unique or extraordinary that to grant the applications would not create pressure for flow-on. It would be contrary to the provisions of s.88A of the Industrial Relations Act 1988 and it would be wrong and contrary to the spirit and intent of the Act and the Commission's Wage Fixing Principles to conclude that this is a special case.

The HSUA responds to the employer submissions with arguments that the applications referred by the President to the Full Bench have had a long history of failed negotiations. There had been prior agreement that HSUA claims should be arbitrated. There have been continuing attempts to reach agreement through enterprise bargaining. Wage Fixing Principle 2.1.(b).(ii) only requires that the Commission be satisfied that the parties remain in disagreement and that there is no prospect of agreement being reached. The HSUA also refers the Commission to Principle 2.1.(c) and puts the submission that a significant part of the HSUA case relates to reviewing the awards pursuant to s.150A of the Industrial Relations Act 1988.

2. Provisions of the Act and Wage Fixing Principles relied upon

In the course of supporting its applications, the HSUA relies on the following provisions of the Industrial Relations Act 1988. In general terms, the HSUA argues that the granting of its applications would be consistent with these provisions and the schema set out in the legislation.

· s.3(b)(ii) ensuring that labour standards meet Australia's international obligations;

· s.88A(a) employees are protected by awards that set fair and enforceable minimum wages and conditions of employment that are maintained at a relevant level; and

· s.89 The functions of the Commission are:

· s.90 In the performance of its functions, the Commission shall take into account the public interest, and for that purpose shall have regard to:

· s.90AA

· s.93A In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

· s.150A(1) [Conditions warranting review] Each award in force (other than a certified agreement or enterprise flexibility agreement) must be reviewed by the Commission for the purposes of this section.

The HSUA also relies on, inter alia, the following principles of the Australian Industrial Relations Commission.

· 1988 and 1989 National Wage Cases re structural efficiency principles;

· Wage Fixing Principle 3.2.3 concerning the claim for adjustment of sleepover allowance; and

· Wage Fixing Principle 3.2.4 (work value changes).

The VICSEA/VECCI, by the content of their submissions and their opposition to the applications, contest the construction placed by the HSUA on the provisions of the Act and the Wage Fixing Principles. The employers ask the Commission to have regard to s.90AA(3)(a) of the Industrial Relations Act 1988, which reads:

The employers also say that the Commission is required to have regard to the provisions of s.90 of the Industrial Relations Act 1988, in particular the likely effects on the level of employment.

3. Rates of pay / classification structure / career path

This part of the HSUA application seeks to vary the HASA Award as follows:

(i) The deletion of specific rates of pay for certain employees of the Spastic Society (Vic);

(ii) The inclusion of a Disability Services Stream in the HASA Award as follows-

(iii) The inclusion in the HASA Award of Skill Level descriptions/definitions for Community Support Workers (CSW) Grade 1, 2, 3, 4 and 5 within Skill Levels 1, 3, 7, 9 and 11 respectively.

(iv) By virtue of the nature of the joint applications in C Nos 32662/96 and 32706/96, to have these wage rates apply generally to workers in the disability and youth welfare sectors (other than "cottage parents" as defined) who are employed by employers who are currently named respondents to both the HASA and Resicare Awards.

The rates of pay and classification structure sought by the HSUA are based on three broad grounds:

(a) to give effect to an earlier agreement to apply the Structural Efficiency Principles (SEP) established via previous National Wage Cases by establishing skill related career paths and to create appropriate relativities between different categories of workers within the award;

(b) increases in rates of pay are justified on the grounds of work value changes (Wage Fixing Principle 3.2.4); and

(c) granting the application would be consistent with s.90AA(2) and s.150A of the Industrial Relations Act 1988.

The HSUA develops its arguments for the rates of pay and classification structure set out in the applications by taking the Commission to the 1988 and 1989 National Wage Case decisions, specifically concerning SEP. It says that its rates and structure give effect to SEP; that they apply the terms of agreements reached by the Union and the broad employer parties in the industry before the Industrial Relations Commission of Victoria (IRCV) in 1991; that these agreements were consistent with SEP, they were intended to create a five-level skill related career path and create appropriate relativities within the award and across the industry. The HSUA says it seeks to finalise all outstanding SEP matters within these applications.

In referring the Commission to the agreements it says were reached before the IRCV during the earlier SEP process, the HSUA relies on Exhibits HSUA 3, 4, 5, 6 and 7 and the evidence given by Ms B Forbath. The HSUA submits further that the evidence of Mr Dodds is not at odds with its position.

The HSUA submits that as the wage rates that now apply in the residential care sector of the industry have not been determined by any form of SEP process, then the adoption of the new classification structure will not interfere with other award relativities. The refusal of the employer parties, it is submitted, to meet their commitments and implement a new five-level structure should now be remedied in the manner sought. The question for the Commission to determine in this matter is not whether a new structure should be approved but rather the rates that should be awarded.

In terms of this - the appropriate pay rates - the HSUA refers to the multi-skilling and broadening of the tasks performed. Based on its preferred classification structure and its assessment of the value of the work performed it goes on to propose rates which are aligned with the skill groups already fixed in the HASA Award. It says these latter rates have been properly fixed in accordance with SEP, so the disability services stream it proposes can be included in the HASA Award with confidence.

As to the pay rates proposed, the HSUA uses a number of reference points. The HSUA identifies a number of current classifications (at various skill levels) which it says encompass the full range of duties of care workers engaged in the disability/youth welfare sector. It then makes a number of classification/function comparisons. It proposes an "entry" classification CSW Grade 1 at the Wage/Skill Level 1. The Nursing Attendant classification is in this Level currently in the HASA Award. The HSUA proposes the alignment of CSW Grade 2 with Personal Care Worker Grade 1, within the Wage/Skill Level 3. HSUA then proposes the CSW Grade 3 be placed in Wage/Skill Level 7 which is the "trades" level. It is proposed that the CSW Grade 3 classification would apply to holders of a certificate level qualification. The HSUA says this qualification is found in the sector and is generally known as the Certificate in Residential and Community Services. This is a level below the advanced level qualification (ACRACS).

The HSUA application defines a CSW Grade 4 as an employee ". . . who is competent to perform work within the scope of this level, or has an advanced certificate, eg. ACRACS . . ." The Union submits that this can be aligned with the classification of Personal Care Worker Grade 2, found within Wage/Skill Level 9 in the HASA Award. It is argued that such an alignment is logical, represents a consistent approach to qualifications and creates appropriate relativities based on skill. It also submits again that it give effect to agreements reached with employers in 1990 and 1991, which, the HSUA says, had the ACRACS qualification as the "cornerstone" of a skill-based classification structure. Information on the detail of the ACRACS is tendered as Exhibit HSUA 8.

The CWS Grade 5 is proposed by the HSUA to be a supervisory level. It submits an appropriate, like with like, alignment to be with the Supervisor Level - Wage/Skill Level 11 in the HASA Award.

In summary, the HSUA says the Commission is entitled to rely on the SEP decision of the IRCV and the stability of the structure in the HASA Award as evidence that the rates are properly set in that award. The inclusion of a disability services stream, within the wage/skill levels proposed, is sustained on SEP and work value grounds and would not interfere with or break relativities within this award or across other awards within the industry.

The VICSEA/VECCI mount a series of arguments which oppose the Commission granting this part of the HSUA application. Firstly, the employers dispute the basis of the HSUA's submission that the classification structure it seeks is based on an earlier "agreement" between the Union and the industry employers before the IRCV as part of the SEP processes.

The employers submit that there was agreement reached on a new structure that the parties had agreed to refine and test; it was not an agreement as to implementation of a new structure; another element of the agreement was that it be implemented at no more than minimum cost; and that the classification structure did not proceed because the Union sought at that time to have a qualification allowance applied on top of a skill-based structure - a claim the employers described as double counting.

The employers go on to submit that the evidence of Mr Dodds makes it clear that the proposals being discussed in August 1991 failed to achieve any level of agreement; accordingly, it is submitted, the Commission should pay little if any regard to the HSUA arguments on this ground.

The employers also contest the justification for the translation of pay rates from the Resicare Award to the HASA Award has not been made out. They say this on two grounds. Firstly, they give a series of examples which, it is said, demonstrate significant increases in actual rates of pay should the Union's applications be granted. They then go on to say that with such significant increase, and no reasonable assurances about lack of flow-on, then the tests to be applied in the Wage Fixing Principles have not been met.

Secondly, the VICSEA/VECCI say that the Resicare Award sets out rates of pay which are clearly and unambiguously minimum rates. The rates have been set by industrial tribunals according to proper wage fixing principles and must be taken to reflect a properly fixed minimum wage rate. The HASA Award, however, it is submitted, provides rates of pay and service payments which for many years were paid for all purposes. There is a historical link asserted with the State Incremental Payment Scheme (SIPS) and it is submitted that the rates in the HASA Award are overstated in work value terms. If the Commission were to apply the HSUA award changes, rates in this award would need to be "discounted". An example is given of about $48.00 per week on the rate for Nursing Attendant. A comparison of rates on this premise leads to a conclusion, it is submitted, that no increase in rates of pay is warranted for employees under either the Resicare or the HASA Award.

As to the classification structure itself, the employers say that it is not sustained on work value grounds and that if the Commission were inclined to the view, the HASA Award currently has classifications which are capable of adaption for providing a career path without the formation of a disability services stream in the manner and with the Wage/Skill Level alignments proposed by the HSUA.

The employers say that what the applications seek to do is to introduce a competency-based classification structure. It is submitted that the classification structure is vague and uncertain and that there are currently proposed but not endorsed national disability competencies, so it would be improper to impose the classification structure sought, which may subsequently require change if and when such competencies are agreed. Industrial disputation would be likely in the process of translation and in the assessment of competency of individual employees.

The employers go to some of the detail of the work descriptions and job content of the classification structure being proposed and then rely on the evidence presented by Mr Headford for the proposition that his evidence clearly demonstrates that by way of comparison with the Australian Standards Framework (ASF) levels and descriptors, the CSW structure mixes and mismatches the competencies in such a way that any attempt to meaningfully classify people is impossible. To grant the HSUA application, it is submitted, would create many more problems than it would solve.

In more general terms, VICSEA/VECCI also seek the Commission to consider the cost impacts of this element of the applications, and refer to the funding parameters within which the industry operates.

VICRAID supports the VICSEA/VECCI submissions and contends further that, at present, an employee can progress from Assistant Care Worker to Executive Officer under the one award if the employee is talented enough.

In response to these employer submissions, the HSUA argues as follows:

· The argument (see Mr Headford's evidence) that the CSW Grade 1 is "non functional" is wrong. The indicative tasks proposed include a range of active duties. The inclusion of an "entry" level classification is entirely appropriate to the classification structure and consistent with the approach in many industries;

· ASF levels do not exist for the disability sector. Mr Headford gave evidence which went to the employer's preferred position, which is not agreed. There are no finalised ASF levels, and the finalisation of ASF alignments are not a necessary precursor to settling pay rates and definitions. The approach advanced through Mr Headford's evidence is at odds with the Joint Industry Training and Education Council Agreement [see Exhibit HSUA 20];

· Employer submissions as to a mismatch of ASF levels and descriptions is wrong. Translation from the current structure to the new will require little more than a full consideration of the duties, skills and relevant experience of care workers and reference these to detailed descriptions and indicative tasks in the CSW classifications;

· The minimum rates or "safety net" adjustments which have been applied to the Resicare Award do not reflect the magnitude or work value change. The rates are not properly fixed in accordance with wage fixing principles. The SEP principle has not been applied in full to this award;

· The HASA Award has not at any stage been determined, or agreed, as a minimum rates award. This remains in contention between the parties. The service payments provided for in the HASA Award are not SIPS payments. SIPS payments have never applied to private sector employees, hence the employers' comparative analysis is flawed.

4. Award structure

One stated purpose of the applications made by the HSUA is to rationalise the present award structure by bringing those employees in the disability and youth welfare sector in Victoria who are currently employed under the Resicare Award and the HASA Award under one award - the HASA Award - with a single set of award wages and conditions. The exception is the classification of "cottage parent" as defined in the HSUA proposal for variation to the Resicare Award. It is proposed to achieve this outcome by the combination of variations to both operative award provisions and employer respondency schedules in matters C Nos 32662/96 and 32706/96.

In prefacing its submissions, the HSUA gives the Commission the following description of the industry and the types and nature of services provided across the sector:

The HSUA describes the present award coverage as follows:

In support of its applications, the HSUA relies on the following points:

· The rationalisation of the award structure in the manner proposed is consistent with the provisions of s.150A of the Industrial Relations Act 1988.

· The current provisions of the Resicare Award do not provide relevant and consistent wages and conditions of employment and allow for discrimination against workers (ref s.90AA(2) and s.93A of the Industrial Relations Act 1988).

· The existence of the two awards in the industry and employees being moved from one award to another, and the lower rates of pay and inferior conditions in the Resicare Award have led to industrial disputation which will be settled by the variations proposed. An accelerating trend has been the deinstitutionalising of large residential settings into smaller settings with less than nine clients.

The HSUA refers to details of the evidence which it submits bear out the above arguments. These can be found at pages 37 to 47 of Exhibit HSUA 23. The Union further submits that granting its applications will ensure fairness and justice for care workers and give effect to s.3(b)(ii) of the Industrial Relations Act 1988 and Schedule 5 generally (Article 3 in particular) to the Act.

The VICSEA/VECCI submissions describe the activities under consideration as follows:

The employers go on to submit:

The employers further submit that the current award structure and provisions meet the objects of the Industrial Relations Act 1988 and s.88A of the Industrial Relations Act 1988.

As well as relying upon the distinctions between the rates of pay in the two awards outlined under the discussion of Rates of pay/classification structure/career path above, the employers also submit that the rationalisation of the two awards would have cost impacts in relation to a number of award provisions, eg. allowances, overtime, compassionate leave.

The VICSEA/VECCI take the Commission in some detail to a history of the two awards and developments prior to 1993 before the IRCV. The employers put Exhibits VICSEA 9 and VICSEA 10 which are decisions of the IRCV in 1988 and these are relied on for the proposition that the IRCV - based on the evidence and material before it - had decided what the incidence of the respective awards ought to be on the basis of the areas of care which were required to be given. The Australian Industrial Relations Commission has now made final awards which express the jurisdictions which were determined by the IRCV and the Commission, in these proceedings, should be reluctant to interfere with those jurisdictions.

The employers also refer the Commission to Exhibit VICSEA 15 in support of its submissions.

The VICRAID relies upon the VICSEA/VECCI submission and argues, further, that the characteristic of employer respondents to the Resicare Award is that they are small organisations and that it is appropriate that they have an award which is specific to their operations and that is expressed as simply as possible. It is also argued that the Resicare Award in its present form is a better basis from which to negotiate enterprise bargaining agreements.

In response to the employer submissions, the HSUA reiterates that a significant part of its case relates to reviewing the awards pursuant to s.150A. The HSUA does not accept the construction of the employers that the current form of the awards is the result of the application of arbitral principles and should not be altered.

5. Work value changes

A major element of the HSUA case in these proceedings is reliance on work value change. The Union takes the Commission to Wage Fixing Principle 3.2.4 and s.88A of the Industrial Relations Act 1988 and submits that the evidence demonstrates that the relevant terms have been met. Specifically:

· Changes in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification;

· Commission to be assured of no flow-on as a result of award/classification changes on work value grounds; and

· The entirety of the workforce for whom the increase is sought is affected by the changes; that the changes post-date the date of operation of the second SEP and were not taken into account at that time.

The HSUA provides a detailed assessment of the evidence provided by way of formal witness evidence, exhibits and inspections. The HSUA's assessment is found at pages 731 to 816 of transcript [August 1996] and Part 1 of its main written submissions [Exhibit HSUA 23].

Based on its analysis of the evidence, the HSUA argues that within the datum period, workers in the disability and youth welfare sector have broadened their duties, learnt and applied new skills and accepted higher levels of responsibility. A major source of change, it is submitted, is a widening of focus to include the developmental needs of clients. This has resulted in workers learning a new and complex range of skills, and applying these to their everyday work.

Change has also resulted from other sources such as change to Government legislation and policy and staff reductions as a result of funding cuts. The consequences, it is argued, are changes such as:

· Transition from a medical model to a disability model;

· Clients with more challenging problems;

· Care workers contributing to client case plans;

· An emphasis on formal qualifications being required or preferred;

· With less input from professional case workers, care workers are exercising much higher levels of responsibility in a range of areas.

The HSUA argues that the evidence as to the extent of work value change comes from both workers and managers in the various services.

The VICSEA/VECCI submits that the Union has failed to meet the tests of demonstrated work value change. The evidence falls short of demonstrating a "significant net addition to work requirements". There is a failure to assure the Commission that there would be no flow-on. The Union fails to provide evidence of changes affecting the entirety of the workforce and does not address the specified datum period.

It is submitted that the evidence of all the HSUA witnesses is evidence of the work performed rather than evidence of change in the nature of the work. The evidence shows that in addition to the functions traditionally performed by carers, employees under the Resicare Award have been required to take on additional functions such as cooking and cleaning. It is submitted that this only demonstrates additional functions or skills of a lower order or quality - it does not meet the accepted principle of wage fixing that in measuring work value, regard is had for the development and acquisition of skills at a greater level or quality.

The employers also argue that the witness evidence called by HSUA relates to employees covered by the Resicare Award. The Commission should be cautious in the way it treats statements taken in the course of inspections; it is submitted that this does not constitute evidence in the normally accepted sense. There is no evidence of change in the nature of work of employees under the HASA Award (eg. Nursing Attendants and classifications specifically engaged by the Spastic Society of Victoria).

It is argued further that the classification structure proposed in the Union's applications would provide substantially greater wage increases to some current employees where there has been no evidence to satisfy the requirements of the work value principle.

VICRAID generally supports these submissions, arguing that the changes cited are more examples of an incremental type, occurring in small steps, rather than "step change" requiring quite different skills across the industry. This incremental changes, it is argued, has been compensated for in National Wage Cases over the years.

In response to these submissions, the HSUA argues that the evidence is against the employers. The evidence demonstrates profound change to the work of care workers across the disability and youth welfare sector. The evidence gained from inspections is extensive and conclusive. This evidence is properly before the Commission. The Union's evidence goes to areas of employment under both the HASA and Resicare Awards. The greatest magnitude of change, consistently throughout the sector is in duties which require more skill or are of a higher order.

6. 24 hour roster

At present, workers employed under the Resicare Award can be required to work a 24 hour roster.

A central element of the HSUA application is to eliminate employer access to using a 24 hour roster, except for "cottage parents". The HSUA says that granting its applications in this matter will mean that the award provisions revert to the original intention of the award. The HSUA says the implementation of the 24 hour roster in this sector has been the subject of misuse.

At page 3 of its written submissions the HSUA makes the following statement:

The HSUA identifies the 24 roster model in the Resicare Award as an inferior award condition which creates an anomalous situation in the workplace. The Union submits that the hourly rate for a care worker engaged on a 24 hour roster model is less than half the rate of a care worker engaged on an eight hour roster model. The incidence of 24 hour rosters and the existence of both models has led to a great deal of industrial disputation and conflict.

The abolition of the 24 hour roster, it is argued, is consistent with the objects and provisions of the Industrial Relations Act 1988. The Commission must set "fair" rostering practices which suit the efficient performance of work.

The HSUA takes the Commission to the evidence of witnesses which it says shows that there is no difference in the work of an eight hour worker and a 24 hour worker. Duties are the same, skills are the same and levels of responsibility and accountability are the same. It is an anomaly and the cause of significant disputation for the award not to provide a consistent weekly rate for care workers determined by the work performed.

The HSUA also makes the following submissions. Reference to the evidence in support of these submissions is at pages 32 to 47 of Exhibit HSUA 23:

· Contrary to employer arguments that the 24 hour roster is necessary for better care through continuity of contact, the HSUA has shown through evidence that continuity of contact between a client and the care worker is the same in the roster sought by the HSUA, i.e. an eight hour roster model and sleepover arrangement;

· References to provisions of the Resicare Award clearly demonstrate that the 24 hour roster was meant to be applied to a worker whose workplace is the same as their home. The use of the roster for other workers is unfair, unreasonable and onerous;

· Evidence demonstrates the difficulties of workers engaged on a 24 hour roster reconciling work and family responsibilities;

· The 24 hour roster model, inter alia, is responsible for high staff turnover, recruitment difficulties and low morale among workers in the industry;

· Evidence was presented that as part of the SEP agreement in 1990, employers in this industry agreed to an examination of the 24 hour roster model;

· The devolution of services from the public sector to the private sector and the deinstitutionalisation of the industry is creating a higher incidence of use of this model; and

· The Commission should be cautious about evidence given on behalf of the employers as to costs.

On this point, the HSUA puts the position:

The VICSEA/VECCI argue for the retention of the 24 hour roster within the Resicare Award because it enables employers to give the best possible service to clients. The employers argue that the onus rests with the HSUA to prove the 24 hour model should be discarded. It says the inspections and witness evidence is against the HSUA on this point. The employers refer the Commission to instances of evidence and in the course of inspections which, they say, demonstrate the benefits of the 24 hour model. These references can be found at pages 9 to 12 of Exhibit VICSEA 14.

It is argued that the HSUA applications would diminish the client-care benefits of the 24 hour roster model. Continuity of care of clients is seen as very important. Rapport with clients is also seen as an important outcome. It is argued that the evidence is that the definition proposed by the HSUA for "cottage parent" is what is considered as 24 hour model work by current employees.

The employers contend that the HSUA is wrong in seeking to compare hourly wage rates. A 24 hour worker is not engaged "by the hour" but rather for a 24 hour shift where they perform various duties within that period. Furthermore workers do not work 24 hours a day.

The employers ask the Commission to prefer evidence that residential homes operated on a 24 hour roster creates a more stable and secure environment for clients. It is more like a normal living situation.

As well as arguing that the 24 hour model should be available to employers from the viewpoint of quality of care, the matter of the 24 hour roster model is the focus of attention for submissions on funding.

The VICSEA/VECCI submit that the provision of the services which are the subject of these applications rely totally or substantially on funding provided by Government. The impact which would result from the granting of the claims would most likely lead to the discontinuance of services and loss of jobs.

Aside from this general submission on funding, the employers make specific submissions on the cost of abolishing the 24 hour roster model. The employers submit that the cost of abolishing the 24 hour model would be "astronomical". Some cost calculations are presented [Appendix A to Exhibit VICSEA 14] which estimate the cost of transferring staff from a 24 hour model to an eight hour model to be to increase costs by between 60% and 124%.

The employers also submit that the Commission should be extremely cautious about making an assumption that Government will fund the cost of any departure from the 24 hour model. If funding is not forthcoming, then there may be impact on service delivery, clients and jobs.

In response to the employer submissions, the HSUA disputes the employers' assessment of the evidence. The Union reiterates that client contact and client/care worker rapport would not suffer from the adoption of its alternative of an eight hour roster with sleepover. The Union also disputes the employers' interpretation of the distinctions proposed for "cottage parent".

The HSUA attacks the cost calculations advanced by the employers; these are not based, it is said, on the roster proposed by the Union. The Commission should lean towards dealing with the unfairness of the 24 hour model and protect the welfare of the workers.

The HSUA argues, further, that the evidence demonstrates that the State Government will fund costs associated with changing roster models. The State Government has a responsibility to fund services to a level which will ensure reasonable and fair wage rates and conditions of employment. The HSUA submits that the employers' capacity to pay submissions are intended to create doubt in the mind of the Commission about granting the roster applications. The HSUA submits the Commission's responsibility is to consider these applications on their merit and to give fair consideration to the interests of workers.

7. Sleepover allowance

The HSUA says that an increase in the current award allowance for sleepover, from $22.61 to $60.00 per shift should be granted. It submits that this is justified under Wage Fixing Principle 3.2.3(c) which provides for the same tests to be met as those applied to increases above the safety net as a result of changes in work value.

The evidence is, the Union submits, that a significant change to work has occurred from a new client type and the requirement is on employees on sleepover to rise and tend clients more frequently. The HSUA maintains that the current payment is "no longer appropriate" [s.150A(2)(a)] nor "fair" [s.88A(a)] and has not been maintained at a relevant level.

The HSUA also says that sleepover, with the eight hour roster, is an important component of its alternative rostering arrangement to maintain continuity of care without recourse to the use of a 24 hour roster model.

The VICSEA/VECCI submit that the Commission has been given no evidence that the nature of the work involved in the performance of work on sleepover has changed, or that the conditions attaching to sleepover warrant the increase sought. There would need to be an enormous increase in the work performed on sleepover for that claim to succeed; no such evidence is before the Commission. For comparison, the employers refer the Commission to the Charitable Sector Aged and Disability Care Services (State) Award in New South Wales [see Exhibit VICSEA 16] which, it is submitted, provides a sleepover payment of $25.20 per night. It is submitted that that award is a minimum rates award and covers a similar area of care.

In response, the HSUA argues that the private sector (including the subject area of these applications) is being required to take on a greater role on transfer from the public sector. Such transfers have included Community Residential Units, which are covered by the Victorian Health and Community Services (Psychiatric, Alcohol and Drug and Disability Services) Award 1995, which prescribes a sleepover allowance of $50.00 per night.

8. Qualifications allowance [ACRACS]

The HSUA applications seek the inclusion in the HASA Award of a clause to provide additional allowances as follows:

· 5% for the holder of the Stage 1 certificate;

· 10% for the holder of an Advanced Certificate in Residential and Community Services [ACRACS] or equivalent;

· 15% for the holder of a related tertiary qualification.

The Union says there is a training culture within the industry which is emphasising qualifications and skill upgrading. The evidence is that ACRACS is either a preferred or required qualification for employment. Details of the ACRACS is presented in Exhibit HSUA 8.

At present, the Union submits, many workers who hold ACRACS receive little or no financial reward. Some employers pay 3.4% or 6.8% allowance pursuant to Clause 21(b) of the Resicare Award but many do not. Employers respondent to the HASA Award generally do not make any additional payment as the award does not contain a certificate allowance.

The HSUA submits this is anomalous as the qualifications and skills of ACRACS holders should be recognised within the HASA Award, offering an incentive to train for the qualification with a properly fixed relativity and wage rate.

The HSUA argues that the employers recognised the validity of ACRACS during the earlier SEP discussions.

The VICSEA/VECCI submissions on this point of the application is that the inclusion of a qualifications allowance in the award, as well as a classification structure which provides wage rates based on the possession of the same qualifications, is double-counting.

The employers take the Commission to the definitions proposed by the HSUA for the classification of CSW Grade 3 and CSW Grade 4. They say these classifications are qualification driven and the further certificate allowance sought would be paid for precisely the same courses.

It is further argued that the classification structure in the HASA Award, determined in 1991, do not provide certificate allowances because the classification definitions themselves recognise qualifications. The employers give, as an example, the classification of Personal Care Worker Grade 2, who is defined as:

To provide an additional qualifications allowance, the employers argue, would be entirely inconsistent with the nature and structure of the HASA Award. The element of double-counting which the employers say is present here is also, they say, behind the lack of the 1990/1991 classification structure being implemented. The HSUA's claims for a qualifications allowance at that time, on top of the classification structure agreed upon, led to a break-down in negotiations and an abandonment of action to bring the new classification structure into the award.

It is argued the HSUA claim cannot be supported as meeting the requirements of Principle 3.2.4 and the Commission cannot be satisfied as to any justification for granting this part of the applications.

In its response to the employers' submissions, the HSUA argues that its claim to have qualifications allowances paid in addition to the classification structure is not unprecedented in the HASA Award [e.g. Interpreter (Qualified)].

The HSUA rejects the submissions that its applications represent a case of double-counting.

9. Area and incidence of award coverage

During the course of proceedings in C Nos 32662/96 and 32706/96, the employers mounted extensive argument to the effect that the form and content of the HSUA's applications, if granted, would extend the incidence and coverage of the HASA Award beyond the combined areas of coverage of the current HASA and Resicare Awards. It was argued that such scope and incidence would extend into areas covered by the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the AEU. Further, that the incidence clause proposed by the HSUA for the HASA Award would cause it to collide with the Social and Community Services Interim Award 1995 and the Disability Services Award (Victoria) 1993.

Such an outcome, it was argued, would create serious anomalies, confusion and unrest within the disability and youth services sector; this clearly militates against the Commission granting the applications in the form made by the HSUA. The employers' submissions on this point are at pages 86 to 99 of transcript.

In the course of these proceedings intervention was made by the ASU and the AEU. The AEU wrote to the Commission on 14 June 1996. This correspondence was tendered by the employers on 4 December 1996 [Exhibit VICSEA 17] in the course of the Full Bench consideration of the HSUA's application for leave to amend its application in C No. 32662/96.

In the course of the proceedings [see Exhibit HSUA 23] the HSUA argued that the granting of its applications would not create the "confusion" that the employers predict. The Union said that it was not the intention of the applications by the HSUA to widen the incidence of the award and that these matters could be accommodated in the drafting of orders. The employers continued to see this as unsatisfactory, arguing that the application, as it stands, is seriously flawed, and it would not be in the public interest to grant it.

The HSUA subsequently informed the Commission of agreements it had reached with the ASU and the AEU in relation to these matters [see Exhibits HSUA 21 and HSUA 22]. The HSUA was then given leave of the Commission to amend its application in C No. 32662/96 in the form set out at Attachment B to this Report.

All parties were given a further opportunity to bring evidence or make submissions on the HSUA applications as amended.

By submissions dated 7 January 1997, the employers argue there remain flaws in the HSUA amended application. It is submitted that the form of the application still constitutes an extension of the incidence provisions of the Award. It is also argued that the granting of the applications would create inconsistencies and anomalies.

The employers also contend that as the classification descriptions for CSW grades have not been amended, the earlier concern expressed by the AEU [Exhibit VICSEA 17] continues to be relevant. The Commission should approach these matters with caution.

In response, the HSUA in written submissions of 7 February 1997, argues that the employers' position is a deliberate obfuscation of the unambiguous differences between the awards. The Union maintains the application does not alter the incidence/scope of the award and the employers' submission shows a complete misunderstanding of the nature of the application and its actual effect on the incidence clause. The HSUA submits that the employers lead no evidence to support their position. It is also submitted that the application in its current form gives effect to agreements made and confirmed between the HSUA, AEU and ASU.

J P O'Shea

COMMISSIONER

Decision Summary

   

Award - new award - various, health and welfare services - union sought to bring disability services within public sector award - sought removal of access to 24 hour roster arrangement, $60 sleep-over allowance, certificate allowance, new classification structure - claimed application consistent with special case, work value and structural efficiency principles - employers opposed claim - Commission not satisfied application should be treated as a special case - room for continued discussion on some issues to secure enterprise bargaining agreements - held rates of pay for disability services sector should not be significantly different from work of a similar nature - single award should apply - disability sector should be `stand alone' providing common rates of pay regardless of previous award coverage - should be additional flexibility for providers of small residential services - award to contain separate category for such providers ( workplaces providing for nine or fewer clients) - 24 hour roster system should be retained for small providers - award will contain single classification structure - parties directed to finalise structure and descriptors - certificate qualification to be considered as a relevant factor - claim for sleep-over allowance refused - qualifications allowance refused - classification structure should be graded to recognise additional qualifications - strong equity argument that employees on 24 hour roster should attract a 40% premium above the award classification fixed for standard rosters - matter to be relisted when draft orders lodged.

Health services Union of Australia and Kindilan Society.

C No 34926 of 1995 and Others

Print P7638

MacBean SDP

Watson SDP

O'Shea C

Melbourne

22 December 1997

Printed with the Authority of the Australian Industrial Relations Commission

<Price code I>

** end of text **