N0175 Dec 1079/00 M Print S9958

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.99 notification of industrial dispute

Victorian Hospitals' Industrial Association

and

Australian Nursing Federation

(C No. 35605 of 2000)

NURSES (VICTORIAN HEALTH SERVICES) AWARD 1992

(ODN C No. 00606 of 1983)

[Print K6359 [N0175]]

Nurses

Health and welfare services

   

COMMISSIONER BLAIR

MELBOURNE, 31 AUGUST 2000

Threatened industrial action.

DECISION

[1] This matter, C No. 35605 of 2000, arose out of a s.99 notification of an industrial dispute by the Victorian Hospitals' Industrial Association ("VHIA") against the Australian Nursing Federation ("ANF"). The matter is now being dealt with under s.111AA of the Workplace Relations Act 1996 (the "Act").

[2] The parties seek to have the recommendations that flow from this decision certified as a three year multi employer certified agreement.

[3] At a hearing on 21 August 2000, following a number of conciliation conferences, the ANF put the following position: the various 1997 public sector agreements had a common expiry date of 30 September 2000 and allowed the parties to commence negotiations six months prior to that date. Various meetings have taken place between the parties to discuss the 2000 Public Sector log of claims that had been developed and endorsed by the ANF job representatives on 22 March, 2000. On or about 22 March 2000, the ANF initiated discussions with the VHIA and the Department of Human Services ("DHS"). Since the initiation of that meeting, numerous meetings have taken place, but the issues arising from the log of claims have not been resolved. A mass meeting of ANF members was held at the Dallas Brooks Hall on 9 August 2000 to discuss the offers made by VHIA and DHS. That offer was issued on 8 August 2000 and rejected by ANF members. This Commission, as currently constituted, issued a confidential statement, dated 14 August 2000 and a further statement, also dated 14 August 2000, was made by the Commission and a further meeting was held by ANF members on 17 August 2000 where the process outlined in the statement issued by the Commission was accepted and work bans were lifted.

[4] At a hearing on 17 August 2000 the parties gave the following commitments on transcript:

SUBMISSIONS:

[5] The ANF stated that in relation to the claims outlined in exhibit ANF2, the ANF will be relying on a number of witness statements, including that from an ANF federal industrial officer, the Victorian branch secretary and a Victorian branch industrial officer. Witness statements and evidence from other branch employees and nurses would also be provided to the Commission. The ANF indicated that they would also be relying on documents which have already been tendered as exhibits number ANF 1 to 11 and further exhibits which will presented to the Commission.

[6] The ANF argued that in relation to s.111AA recommendations, these are recommendations by consent which have the following key features:

[7] It is contended, and not disputed by the parties, that the prerequisites for the Commission to proceed have been satisfied.

[8] The ANF further submitted that the Commission, in exercising its powers of conciliation are not powers of arbitration under the Act. They also state that, unlike arbitral proceedings, the outcome of the Commission's recommendations in this context are to be given legal effect, not by an order or award of the Commission arising from the arbitration but by the parties agreeing to accept the terms of the recommendation and for themselves to give effect to the recommendation by using the machinery available to them under the Act; ie. a certified agreement, in this case a multi employer certified agreement.

[9] The ANF further stated that the form of the hearing to be conducted by the Commission under s.111AA is largely a matter for the discretion of the Commission. The form of hearings does not necessarily have to accord with the customary practice adopted by the Commission in arbitral proceedings. The concept of the hearing in the context of s.111AA necessitates an opportunity for each of the parties to put their case, subject to such directions as the Commission may give in relation to each of the aspects of the matter about which they are unable to reach agreement.

[10] The Health Services Union of Australia, Victoria No. 1 Branch ("HSUA") indicated to the Commission that they are respondent to the awards and to the various agreements. The HSUA state that in August they wrote to the Commission asking for assistance in the negotiating process between the parties. As part of this process, the HSUA gave a commitment to s.111AA proceedings and that process was endorsed at a meeting of its members held on 17 August 2000, for all matters to be dealt with through the s.111AA process.

[11] The HSUA indicated that they would be relying on a number of witness statements which will be forwarded to the Commission. They also indicated that the HSUA would be drawing up a formal document identifying the differences between the ANF and the HSUA log of claims.

[12] The VHIA, as part of their submissions, indicated that the process that the parties were going through was unprecedented in the public sector. Fundamentally, what is before the Commission is an industrial inquiry and determination that relates to the public hospital sector. The matter currently before the Commission is even more important than the matter that was before the Commission in 1986, arising out of the 1986 nurses' dispute.

[13] The VHIA indicated that, although the outcome of this s.111AA process would have significant cost implications, that is not the major factor. The VHIA contended that what is before the Commission is the issue of the fundamental way in which nursing work is carried out and implemented.

[14] The VHIA indicated that a reversion to the old model, that is the 1986 model, in their view, is not an option available to the Commission for it is a retrograde step.

[15] The VHIA also indicated that in order to do justice to the issues before the Commission and the parties, the complexities of the claim and issues is a daunting one. And in order for the complexities of the claim and issues to be addressed properly, rules that apply in public arbitrations should not be ignored in private arbitrations (s.111AA). It is in the public interest test, according to the VHIA, that equity and good conscience and the merits of the case are to be addressed.

[16] It is the VHIA's submission that public interest is paramount. They emphasised that what is before the Commission are not just claims for better entitlements. The claims go to the fundamentals of how nursing services should be controlled and delivered. The VHIA emphasise that during this process of s.111AA further conciliation is more than beneficial.

[17] The VHIA further submitted that they would be bringing evidence on a range of matters relating to the organisation of work at the workplace and the organisation of labour.

[18] The DHS, as part of their submissions, indicated that what was before the Commission was the crytalisation of division of labour and costs. The DHS emphasised that they would be accepting the outcome from the Commission under s.111AA.

[19] The DHS submitted that the Commission must take into account the framework of the Act and that the wage fixing principles should not be ignored.

[20] These proceedings, according to the DHS, cannot be dealt with in a vacuum. The DHS emphasised that the Commission recommendations will form the basis of a certified agreement.

[21] The DHS said that there are nine points that the Commission should take into account:

[22] The DHS further submitted that:

[23] The DHS indicated that the claim for parity by the ANF, in their view, was a claim for comparative wage justice, which has been rejected by the Commission for some years.

[24] The DHS emphasised that the Commission must take into account the public interest test and this would also be taken into account by any multi-employer agreement being presented to a full bench where, in the full bench's view, if the public interest test is not being met, the full bench may reject the multi-employer certified agreement.

[25] The DHS also indicated that there would need to be serious consideration by the Commission as to the length of the agreement. Also, whether or not there should be inserted into the agreement a no extra claims clause.

[26] Finally, the DHS had no objections to any further conciliation processes in order for the Commission to inform itself of the merits and the detail of the claim.

[27] A further commission hearing was held on 22 August 2000. The DHS drew the Commission's attention to the relationship between a s.170MX and s.111AA proceedings. It generally was accepted that the recommendations of the Commission under s.111AA and the decision of a full bench under s.170MX provides the Commission with discretion at large. However, the DHS did indicate that in dealing with s.111AA the Commission should have regard to s.170MX(5) [matters to be considered by a full bench]. They are:

[28] The DHS further emphasised that the Commission should ensure that there is a fair result and that the Commission should be assisted in this process by s.170MX(5).

[29] The DHS further submitted that the Commission should also seriously consider the relevant factors that have been determined by previous s.170MX decisions. In this regard the DHS referred the Commission to what was referred to as the P&O Case [Print R2643] page 18, where it states, at paragraph 41:

[30] As part of the ANF's argument, they submitted an additional 50 exhibits. Those exhibits include witness statements from Belinda Morieson, the Victorian state secretary of the ANF, a statement from Paul Gilbert, a Victorian industrial officer and a statement from Nick Blake a Federal industrial officer.

[31] Also, as part of those exhibits, the ANF tendered a range of recommendations which appeared to have been derived from what is now known as the Bennett Report. This is a report compiled by an expert committee dealing with the issues for recruitment and retention of nurses within the public health sector.

[32] The DHS raised with the Commission, the proposed recommendations and what weight the Commission should give those recommendations. The Commission, for its part indicated that the Commission was aware of the Bennett Report, however, it had not seen the report as such. The Commission was also aware that the report had not been finalised, nor had it been presented to, nor accepted by, the Victorian state government. The Commission did, however, indicate that it was prepared to accept the exhibit on the basis that it would give the Commission some indication as to the issues that were being considered as part of the Bennett Report and what weight the Commission gives that is a matter for the Commission, considering that a number of the recommendations cover a number of the items in the ANF's and the HSUA's logs of claims.

[33] Because of the volume of exhibits that were tendered by the ANF, the parties sought some additional time (24 hours) in order to digest and analyse the material provided by the ANF.

[34] The Commission did seek from the parties their view as to an expectation they may have from the Commission in providing reasons for each and every one of its recommendations, understanding that the matter was being dealt with under s.111AA, therefore the recommendations were binding and non-appealable.

[35] The parties did indicate that they did not expect from the Commission a detailed reasons for each recommendation; however, they did expect (and rightly so) that on the core issues that go to recruitment and retention and the issues of workload that proper and full reasons be provided by the Commission so that the parties understand how the Commission came to its conclusion. The Commission concurred with that view.

[36] As part of proceedings on Thursday 24 August 2000 Ms Belinda Morieson, the Victorian branch secretary of the Australian Nursing Federation submitted her affidavit and gave the following evidence, which related to, in her view, the measures required to improve the recruitment and retention of nurses within the Victorian public hospital system.

[37] Ms Morieson referred to exhibit ANF15, which is a document headed "Issues Arising From Public Forums in June 2000". In particular she referred to the conclusion, which states:

[38] Ms Morieson also referred to exhibits ANF5, ANF6 and ANF19, which is a document headed "Reduced Hours of Work".

[39] In referring to exhibit ANF27, which is a letter from Mr David White, Minister for Health addressed 8 May 1987. Ms Morieson indicated that these matters referred to in that correspondence had been agreed matters since that date.

[40] Ms Morieson also referred to exhibit ANF30, which is a document headed "Results of Career Pathway Survey for Nurses Positions". In particular, the overall conclusion states:

[41] Finally, Ms Morieson referred to exhibit ANF55, which is a copy of a letter addressed to Ms Morieson from the Premier of Victoria, dated 17 August 2000 enclosing a Media Release, which in part states:

[42] Evidence and a witness statement was then provided by Mr Paul Gilbert, an industrial officers of the Victorian branch of the Australian Nursing Federation. As part of his evidence, Mr Gilbert endorsed the evidence of Ms Morieson. Mr Gilbert then referred to Clause 12 of his statement, which reads:

[43] Mr Gilbert also referred to exhibit ANF29, which is the Women's and Children's Health Care Network and Health Services Union of Australia (Health Professionals) Enterprise Agreement 1997, Clause 11.2, which states:

[44] In Clause 18 of Mr Gilbert's statement he states:

[45] Again, Mr Gilbert refers to exhibit ANF29, Clause 12, which states:

[46] In Clause 22 of Mr Gilbert's statement, he states the following:

[47] Mr Gilbert then referred to exhibit ANF31, a letter from the then Department of Labour to the VEF dated 29 September 1988, which states in part:

[48] Mr Gilbert also referred to a number of other exhibits.

[49] After presenting the evidence of both Ms Morieson and Mr Gilbert, the VHIA and the DHS reserved their positions in terms of cross-examination. The Commission then adjourned to allow the parties to participate in further conciliation.

[50] At the hearing held on 26 August 2000, the government, through the DHS, as part of their submissions, indicated to the Commission what the DHS believes the Commission should take into account in addressing the issues in the ANF and the HSUA log of claims.

[51] The key issue, according to the DHS, is what salary outcome there will be as part of these s.111AA proceedings. The DHS emphasised again the relationship between the approach taken between a s.170MX proceeding and s.111AA. As part of their submissions, the DHS referred to relevant s.170MX decisions.

[52] The DHS referred to the Australian Education Union and Minister for Public Sector Administration (Tasmania) [Print Q0785]. In that decision, the full bench stated under "Comparisons with Government Teachers' Salaries in the Other States and the Territories":

[53] Further, the full bench stated under "'Reasonable' settlements elsewhere":

[54] The DHS further referred to the above decision where the full bench stated under "Salary Structures of Government School Teachers in the States and Territories":

[55] In referring to the previous decision, the DHS indicated that the Commission should take a similar approach in these s.111AA proceedings.

[56] The DHS then referred to a decision by Commissioner Laing, the Metropolitan Health Service Board and Australian, Liquor, Hospitality and Miscellaneous Workers Union [Print S3305], where Commissioner Laing stated:

[57] Further, at paragraph 10 of that decision, Commissioner Laing states:

[58] Further, in the decision of Australian Nursing Federation and Metropolitan Health Services Board [Print Q4225] by Senior Deputy President MacBean, he states:

[59] In that case the Western Australian government funding was set at 3.5% per year. Senior Deputy President MacBean did not determine the issue on comparative wage justice principles. In [Print S5517], a decision by Commissioner Hoffman in Australian Nursing Federation and Ministry of Justice, Commissioner Hoffman stated at paragraph 16:

[60] In regards to the wage fixation decision, the DHS emphasised that the proceedings should not be considered in a vacuum.

[61] The DHS also, under the heading of wage fixation decisions, referred to a decision of a full bench in [Print G2250], which was a matter involving the Royal Australian Nursing Federation and the Hospital Employees Federation to vary to the Private Hospitals' and Doctors' Nurses (ACT) Award 1972 in relation to rates of pay.

[62] The DHS referred that decision to the Commission for its consideration concerning wage fixation principles.

[63] The DHS referred extensively to various decisions of State and Federal commissions indicating that classifications differ from state to state and that there has been a move away from arbitrated outcomes and this has occurred since the early 1990s.

[64] On the issue of parity of wages in other states, the DHS indicated that there has always been a differential between the Victorian nurses and nurses in other states. This has occurred for a number of reasons. Some of those relate to outcomes from the various tribunals. There has also generally been a difference in the states due to basic cost of living etc.

[65] More recently those differences have related to the outcomes due to enterprise bargaining. The DHS emphasised that nursing rates have not been set in vacuums. There has been a view of career structures in other states.

[66] The DHS then referred to a decision of the Federal Commission by a five person full bench in [Print J4011], which stated at page 9:

[67] The DHS, as part of their submissions, indicated that each of the various tribunals made their decisions, not on the basis of the same rates of pay across all states but there was consistency in the national outcomes.

[68] The DHS then provided a graph (Attachment 1) indicating the interstate comparisons for Registered Nurse Grade 2 Year 6, which indicates that currently nurses at that level are equivalent to the South Australian level, but with the projected increase this will take their pay rates to within the top four.

[69] Equally, interstate comparisons of Grade 4B Year 2 Charge Nurses (Attachment 2), indicates that their rates of pay are currently within the top two and with the projected increase they would remain in the top two.

[70] The DHS emphasised that if granting pay rates similar to those of the New South Wales nurses then that simply would provide an opportunity for leap frogging and in comparing rates with other states then the Commission should give serious consideration to what has been achieved through enterprise bargaining.

[71] The DHS provided a document (Attachment 3) headed "Interstate Nurse Wage Comparisons and a document (Attachment 4) headed "Interstate Wage Comparisons - Comparison of Weekly Rates".

[72] The DHS, as part of their submissions, said that the Commission should not only look at prevailing rates in other states, but what nurses have accepted in salary outcomes and compare the Victorian government offer in that context considering that the Victorian government have offered an additional increment at Grade 2 level. When looked at as a whole, a significant proportion of the nurses would receive, in the DHS's submission, "a significant increase". In comparison, the DHS emphasise that if the Commission granted the ANF's claim at entry level for Nurses then that would mean an additional $100 per week, if parity to entry level Nurse in New South Wales would mean an additional $130 per week and if parity with Medical Scientist it would mean an increase of $153 per week.

[73] In referring to public sector outcomes, the DHS presented a document headed "Trends in Enterprise Bargaining - June Quarter 2000". At page 5 of that, headed "Public Sector Wage Trends" it states:

[74] It further states:

[75] It stated further:

[76] On the issue of parity with other health professionals, the DHS gave extensive submissions on this issue indicating that major decisions had been handed down by various tribunals between 1986 and 1989. In that period there was a decision from the Victorian Industrial Relations Commission, commonly referred to as the No. 1 Case, which, once handed down, led to disputation. This led to what is referred to as the No. 2 Case, which dealt with the anomalies arising from the No. 1 Case. Out of all this the DHS emphasised that pushing the argument of parity with other health professionals would simply provide for a leap frogging process. For example, the DHS indicated that nurses undertake a three year degree whilst other health professionals undertake a four year course. It is not an "apples and apples" comparison with other health professionals. There would arise from any parity with other health professionals an argument by those professionals about loss of various relativities.

[77] The DHS submitted that it is simply an argument for comparative wage justice which has been and should be rejected.

[78] The DHS referred to a document headed "Review of Victorian Public Health Sector Nursing Rates of Pay". In that, the executive summary states:

[79] Over the last several years, according to the DHS, enterprise bargaining has been the vehicle for wage movements. Even if there is to be a comparative movement, the DHS emphasise there has to be a nexus between the nurses and other health professionals and, at this stage, none has been established.

[80] The DHS could not emphasise enough, as part of their submissions, that these proceedings currently before the Commission could set the framework for wage claims to be dealt with for other health professionals. The DHS then went to recent agreements with other HSUA branches, which indicated that over a three year period commencing mid-1999, there has been overall a 9 per cent outcome and what the government is offering in terms of a settlement with the ANF and the HSUA, in this particular matter, is favourable with other agreements reached with other health professionals.

[81] The DHS then provided a table which indicated the wage increases for various health professionals.

[82] Further on the comparative wage justice argument, the DHS referred to various decisions of the Commission indicating that comparative wage justice arguments are no longer permissible under wage fixing principles.

[83] The DHS referred to the following cases:

[84] On the issue of costings, the DHS presented the Commission with two tables (Attachment 5 and Attachment 6) indicating the impact that the proposed increases would have. DHS then, as part of their submissions, went through how they came to the costings of the overall impact of the ANF/HSUA logs of claims and in doing so they emphasised that the costings were only on major items, so therefore the costings overall were incomplete. The DHS did stipulate that they believe that the total cost of the ANF would be in excess of $400 million.

[85] The ANF, continuing their submissions, provided five witness statements to the Commission. Each of the nurses swearing their statement, provided oral evidence in support of their statements. The Commission does not intend to name those who gave evidence in this matter.

[86] It would be fair to say that each one of those statements endorsed the ANF's log of claims and sought favourable outcomes from the Commission on each and every point in that log. The major concern of those giving evidence went to:

indicating quite forcefully, as part of their submissions, that nurses, at their own expense, obtain additional qualifications without any financial reward thereby not providing any incentive for nurses to undertake additional training and therefore undermining nursing professionalism.

[87] It was emphasised that the decline of experienced and qualified nurses in the specialty areas such as critical care, and pre-operative nursing is a sad indictment on current recruitment and remuneration arrangements.

[88] Each one of the witnesses, as part of their witness statement, supported the nurse/ patient ratio of 1:4, as identified in the ANF Claim. Currently, the advice to the Commission is that specialist units operate on less than 1:4 but other areas operate 1:5, 1:6, 1:8, possibly up to 1:10 on the nurse patient ratio mix.

[89] There was also strong support for the introduction of a night duty allowance indicating that the introduction of such allowance would encourage more qualified nurses to work night shift, thereby reducing the workload of those that are forced to work a one in four night shift roster.

[90] There was overall unanimity in that drastic measures needed to be taken to, not only encourage the approximately 20,000 registered nurses who are not actually nursing to get back into the workforce, but to encourage those nurses that are leaving the hospital system because of being totally disillusioned to stay.

[91] The information provided to the Commission indicated that although there appeared to be lines of communication between the nurses at, what the Commission would consider the "shop floor level", and those within the senior management structure, including DoNs and ADoNs, although open, the views of the nurses that may be expressed through those lines of communication are either not considered in a proper context of being constructive and informative, or at worst, totally ignored, with a view being expressed by some at a senior level that those that are expressing a view through the lines of communications which may be different to their own are generally not interested in nursing or, as the Commission terms it, "rebel rousing".

[92] On Sunday 27 August 2000, the HSUA made submissions which outlined the events culminating in their being prepared to accept recommendations under s.111AA. The HSUA presented material, including witness statements, from twelve Division 2 Nurses. Verbal evidence was provided by two of those twelve Division 2 Nurses.

[93] Primarily the evidence provided on behalf of Division 2 Nurses went to the issues of:

[94] Due to the restrictions placed on the role and functions of Division 2 Nurses, Division 2 Nurses primarily worked within the aged care sector, which limited their potential, further development and the development of an appropriate career structure.

[95] It was indicated that Division 2 Nurses in aged care could look after somewhere between seven to 15 residents.

[96] There was also submissions made regarding Division 2 Nurses performing non-nursing duties. An example would be cooking meals, cleaning duties and doing laundry. The HSUA indicated that it was a desire for Division 2 Nurses to be able to administer certain levels of medication. This was identified in a submission to Miss Glenys Sawyer, Manger of Accreditation and Practice Standards, Nurse Board of Victoria, in a letter dated 17 April 2000, attaching submissions in this regard.

[97] Apparently this issue is currently being considered by the Nurses Board of Victoria.

[98] The HSUA further submitted that Division 2 Nurses would like to go beyond paypoint 5 and use skills and knowledge that would allow them to work in the acute sector and not necessarily be limited to aged care.

[99] On the issue of Division 2 Nurses exiting the nursing profession, the HSUA submitted that the level of Division 2 Nurses leaving is comparable to that of Division 1 Nurses which, in the Commission's view, is quite serious. HSUA did, however, emphasise, that a number of Division 2 Nurses did move on to university in order to be able to practice as a Division 1 Nurse.

[100] The ANF made a brief submission concerning Division 2 nurses, indicating that they supported a role for Division 2 nurses within the acute sector as long as that role was within the skills and the knowledge of Division 2 nurses.

[101] At the hearing held on 28 August 2000, the VHIA presented their submissions by indicating that they would deal with their matters in two parts. Firstly, there would be eight witnesses provided and secondly, on Tuesday 29 August 2000 they would deal with other matters by way of submission and closing submission.

[102] The VHIA confirmed their commitment to the proceedings under s.111AA because of the severe industrial action that was in place, action, which the VHIA reminded the Commission, was unlawful as there was still in place an existing workplace agreement.

[103] The VHIA emphasised that whilst they were commited to enterprise bargaining, the public health sector is not like other sectors of industry. It is, by its very nature, vulnerable more so than other industries to any industrial action given that it is dealing with the health and welfare of people.

[104] The VHIA have consistently expressed concern about the timelines in which the Commission and the parties are having to deal with these matters under the process of s.111AA.

[105] The VHIA emphasised that the log of claims by the ANF and the HSUA goes to the fundamental issues of employment of nurses beyond the year 2000. The VHIA state that the nature of the claim by both unions is not a forward looking document but a document that, if implemented in its entirety, would take the parties backwards.

[106] The VHIA, along with the DHS, have reminded the Commission of the precedent this process under s.111AA will have in other public sectors. Therefore, the VHIA supported the submission of Mr Lee, representing the DHS. The VHIA emphasised that they wanted these proceedings to be thorough and detailed as there are a number of people watching this process; not only those affected by its outcome but the public in general and, in particular, the media.

[107] The VHIA, in reference to the industrial action which they allege to be unlawful, indicated to the Commission the options available to them under the Act were not the same options available to other forms of industry eg. lock out.

[108] The VHIA emphasised that they were not adverse to s.111AA processes per se but any future process could not be constrained by inappropriate time frames, as the current matter before the Commission is.

[109] The VHIA supported the DHS's submissions concerning the matters that the Commission, as currently constituted, should consider under s.111AA and s.170MX proceedings.

[110] The VHIA also indicated that no other nursing awards in Australia have a nurse patient ratio as that wanted by the ANF Victorian branch.

[111] In dealing with some of the merits of the case, the VHIA acknowledged that there were not insignificant workforce problems, that there was a great degree of stress, there were workload problems and there were perceptions of workload problems.

[112] The VHIA acknowledged that major measures were required and the Victorian government recognised that major measures were required, for they acknowledged the problems in the public health sector.

[113] The VHIA, in acknowledging that there were difficulties within the public health sector, believe that the simplistic position of the ANF will not fix all of the problems and nurses will not come flocking back to the public health system. There needs to be, according to the VHIA, a genuine commitment from all the parties and a strong desire to turn the current problems around, but that can only be done by not dealing with crude solutions.

[114] The VHIA believe that the career structure is less relevant today because of changes that have occurred in the workplace since 1986. They emphasised that there needs to be a major review.

[115] On the ANF claim of 1:4 nurse patient ratio, the VHIA believe that that is not a solution to workload problems, but in fact would create more problems than what it is intended to fix.

[116] The VHIA identified that if a strict 1:4 nurse patient ratio were implemented it would require an additional 800 to 1200 EFT nurses.

[117] The VHIA, in dealing with the ANF claim of an 8, 8, 10 roster, emphasised that that proposal is not conducive to what a lot of the nurses currently in the workplace require. The VHIA state that short shifts can and are utilised by nurses. There needs to be confidence on the part of the nurses to negotiate shorter hours rather than have fixed 8, 8, 10 rosters.

[118] The VHIA emphasised that one size model in terms of rosters does not fit all of the public health sector.

[119] In terms of career structure, the VHIA submitted that the career structure should be reviewed and remain in the purview of s.111AA proceedings, for they believe the Commission can play a constructive role if any impasses occur.

[120] A number of witness statements were provided, along with verbal evidence by those submitting the witness statements.

[121] As with the evidence and witness statements provided by the ANF and the HSUA, the Commission does not intend to name those that have provided evidence. It will, however, give a broad summary of the evidence that has been provided. That summary of the evidence goes to a belief that the Victorian health industry has undergone significant change since the mid 1980s when the current framework for Victorian nurses' terms and conditions of employment and career development were set.

[122] The evidence to the Commission indicates that the change is ongoing and the impact of work processes and content at the individual level would be considerable for the foreseeable future. Therefore, the evidence suggests that the parties must endeavour to equip those participating or entering into the work force to expect change and to respond positively to it. They state that artificial protection against the impact of change appears futile and doomed to failure.

[123] Evidence also went to increased specialisation of the medical workforce, growth in under-graduate course commencement in majority of non-medical, non-nursing health professionals compared with decline in both basic and post basic nursing enrolments.

[124] Further evidence went to

[125] The overall conclusion on the points above are:

[126] Some of the responses proposed to deal with the conclusions referred to above are:

[127] In dealing with specific issues raised by the ANF and the HSUA logs of claims, the witnesses provided the following evidence:

[128] The evidence that was provided went to metropolitan and country public hospitals, were evidence indicated to the Commission that if a strict 1:4 nurse patient ratio mix was put into place the difficulty in attracting nurses back into the public hospital system would be magnified several times over to the extent where, in not being able to attract sufficient nurses, in some hospitals it would lead to up to 57 beds being closed.

[129] It was also suggested on the 8, 8, 10 roster, that the 8, 8, 10 roster is only one of a number of rosters that could be put in place. The evidence before the Commission indicates that in some hospitals up to 20 rosters operate within the workplace.

[130] There appeared to be considerable support for the developing of a template for nurse staffing for each ward or unit. That template would:

[131] Submissions were also made on what could be considered as a priority list of equipment which will, in the witnesses' view, make a tangible difference to nursing workloads, including, but not confined to:

[132] Further, the following could also assist with nursing workload:

[133] The witnesses also provided a document to the Commission, exhibit VHIA8, headed "Terms of Reference for a Career Structure Review". The Commission understood this to be a draft proposal. The document refers to the following:

[134] For its part, the ANF indicated that they are not opposed to a review but the parties would collectively need to develop their own terms of reference.

[135] In regards to the re-introduction of the accrued day off ("ADO"), evidence provided to the Commission indicated that the shift to part-time hours and greater flexibility in the working hours generally is part of a global shift towards part-time and flexible working hours.

[136] Material was provided to the Commission which indicated that, after a comparison of full time part time mix in hospitals with ADOs versus those without, the results indicated that there is no difference in the proportion of nurses electing to work full time between the two groups.

[137] A study was also done on the impact on vacancy rates. The results indicated that there was no difference in vacancy rates between hospitals who had retained ADOs and those that had not.

[138] The evidence also provided to the Commission indicated that following a survey to determine the cost of re-introducing the ADO, the Directors of Nursing indicated the replacement cost would be approximately $9 million. The cost was based on existing full time and part time staff being utilised for ADO replacement. They emphasised that the reality, however, was given the shortage of nurses, it means the replacement cost would be greater based on the need to use casual and agency staff, further compounding workplace stress.

[139] On the issue of a qualifications allowance, the witnesses indicated that any introduction of a qualification allowance must observe the principle of equity for all nurses. This should include access and availability of courses and rewards for alternative forms of professional development. There were, according to the evidence, a number of objections to the claim as presented by the ANF. They were:

[140] As an alternative, the following was proposed:

[141] On Tuesday 29 August 2000 evidence was provided by Ms Hannah Sellers, Assistant State Secretary of the Australian Nursing Federation Victorian Branch. Attached to the witness statement of Ms Sellers were an additional 38 witness statements. At proceedings held on Saturday 26 August 2000, the Commission and the parties accepted the evidence provided by five ANF witnesses as being largely representative of the evidence the ANF was proposing to present to the AIRC.

[142] Ms Sellers's statement indicated that the witness statements reveal the following:

FINAL SUBMISSIONS:

[143] The parties briefly went over material already put to the Commission indicating their support or opposition to the various claims, as well as ensuring that the Commission understood the practical and financial implications of its recommendations.

FINAL OUTCOMES:

[144] The Commission, after having considered all the arguments of the parties would provide the following recommendations on the very clear understanding that what is now the outcome of these proceedings is a package, a package that is designed to deal with the acknowledged crisis within the public hospital sector. It is true that there is some argument by some parties that a crisis does not exist. However, the overwhelming evidence before this Commission is that there is a crisis in nurse recruitment and retention and workload to the extent that if it is not addressed now with measures to deal with the short term issues as well as providing some measures to deal with the long term issues, then the nursing crisis will get worse. Those who choose to say that there is not a nursing crisis, in the Commission's view, are in a state of denial.

[145] Through this decision there is mention of the Bennett Report. The Bennett Report derives from a committee that was established by the Minister for Health in Victoria to look at issues relating to nurse recruitment and retention. Representation on the committee consist of representatives from the following organisations:

and a number of nurse clinicians. Professor Margaret Bennett, president of the Nurses Board of Victoria, was appointed as an independent chair person.

[146] Arising from that committee there were a number of sub-committees (three) that were established, namely:

[147] Terms of reference were established.

[148] The Commission notes that the report is still in draft form and as yet has not been presented to the State government. Once presented to the State government in final form, it is entirely a matter for the government whether they accept the recommendations arising from the report.

[149] The Commission does acknowledge that, because the report is still in draft form, some of the final recommendations may, in fact, change. The Commission makes mention of the Bennett Report, not to rely on its outcome, but to indicate that a number of the issues that are currently before the Commission have been dealt with by an expert committee under Professor Bennett's chairmanship. Some reference may be made to those interim findings in the Bennett Report by the Commission.

[150] Whilst all matters emanating from these s.111AA recommendations are binding and should be contained in a certified agreement, there are nevertheless, by definition, two separate areas. Firstly, matters which are primarily addressed as recruitment and retention issues and secondly, issues which are more traditionally viewed as industrial.

RECOMMENDATIONS

[151] The Commission now makes the following recommendations:

1. SALARIES

[152] The Commission determines that a one off special payment of 3.5% on all salaries contained in the 1997 Public Sector Agreement should occur as from 1 October 2000. The Commission does so to ensure the Victorian public health agencies are in a position to attract and retain the highest quality and most suitably qualified nurses and to ensure the provision of high quality patient care to the Victorian community.

[153] The Commission emphasises that this should not be regarded as a salary flow on to the rest of the health industry or to the public sector, for it is specifically one of the issues necessary to attract and retain nurses in this State, given to what the Commission referred to earlier as the crisis within the nursing industry.

[154] Given the one off 3.5% payment, the Commission is satisfied on the submissions before it that it should not deviate from wage outcomes that have applied to the public sector in line with Victorian government policy. The Commission is mindful that there could be serious flow on effects and a series of leap frogging claims if the Commission were to grant any more than what is already applying in the public sector.

[155] With that in mind, the Commission would determine that the following shall apply to the wages and allowances payable as follows:

[156] The Commission would add that if increases in the CPI are greater than the compensation contained in the GST tax offset package, the parties will confer to seek to address that matter.

[157] For Registered Nurse Division 1 the following shall apply:

[158] The Commission would also add that employees will translate to the increment that reflects their experience (as defined by the Award) including experience prior to 1 October 2000. The following are some translation examples:

Current Increment

Experience at Grade 2 Year 6

New Increment at 1/10/00

Grade 2 Year 6

8 years or more

Grade 2 Year 8

Grade 2 Year 6

7 years

Grade 2 Year 7

Grade 2 Year 6

6 years

Grade 2 Year 6

[159] Further, in order to attract and retain nurses in the public hospital sector, the Commission would also determine the following:

[160] In regards to the claim for salary packaging to be made available in all public health facilities, given that a number of these claims go to a process of implementation, the Commission as part of this overall recommendation has recommended the establishment of an agreement implementation committee which shall be Appendix 1 to this Agreement.

[161] Therefore, in regards to the salary packaging arrangements to be made in public health facilities, this matter is to be referred to the implementation committee.

[162] In ensuring continuing access to HESTA and HOSFund, the Commission would recommend that employees covered by the proposed agreement would have continuing access to HESTA and Health Super.

[163] The default fund on commencement of the agreement shall be Health Super. In determining the default fund following the commencement of the agreement, the parties will have regard to the membership numbers in each of these funds at twelve monthly intervals throughout the life of this agreement. The default fund shall become the fund with the most employees as members at a particular workplace. The Commission would emphasise that nothing in this clause affects the rights of current employees to remain in their current fund, for example, ComSuper.

[164] The Commission has come to the above conclusion based on the experience it had in negotiations with the various parties, that were involved in the 1999 negotiations concerning the proposed privatisation of the Austin and Repatriation Medical Centre.

2. STAFFING AND RECRUITMENT

[165] There has been much debate about the log of claims that refers to a 1:4 nurse patient ratio on day and evening shifts. The claim also relates to night shift to be one nurse to each eight patients and in other areas the nurse patient ratio will be relative to the nurse patient ratio as outlined above.

[166] The claim then refers to possible bed closures due to the inability to meet the nurse patient ratio as mentioned above. The claim under staffing and recruitment also refers to the skill mix in all acute general surgical and medical wards, re-introduction of not less than 5 EFT of ACNs appointed to each 24 hour 7 day week ward/unit, filling of vacancies, employment status and night duty.

[167] This claim, in particular, is strongly opposed by the VHIA and the DHS on the following grounds:

[168] For its part, the unions argue that a nurse patient ratio is essential for the following reasons:

[169] The Commission understands that the current position is that the public hospital system has ratios ranging from 1:1 in critical areas, 1:4, 1:6, 1:8 and 1:10.

[170] The Commission accepts the argument by the VHIA and the DHS that to impose a strict 1:4 nurse patient ratio is not sustainable nor is it workable and would provide for greater stress in the workplace than what currently exists now. Additionally, it would also provide for increased bed closures.

[171] The ratios that currently exist that range from 1:1 to 1:8 or 1:10, generally relate to whether the hospital is a major hospital in the metropolitan area, a smaller hospital in the metropolitan area, a rural hospital or aged care facility. The Commission does accept the principle that nurse patient ratio mix is a prerogative of the government; however, all parties emphasised that the matters before the Commission must be dealt with as a package. Therefore, the Commission cannot ignore the issue of nurse patient ratio mix. It is obvious to the Commission that whatever measures (if any) that have been put in place by the hospital networks to address the recruitment and retention issues, have failed. During the s.111AA process and the conciliation conferences, there was ample opportunity for the hospital networks to provide alternatives to the nurse patient ratio mix proposed by the ANF and this did not eventuate.

[172] There were some suggestions to deal with the long term strategy but not the short or medium term, despite the VHIA encouraging its constituents to do so. Therefore, the Commission would recommend that the following ratios apply:

A Hospitals (identified in Appendix 2)

Current Ratios

Proposed Ratios

a.m. shift

1 : 3.4/5 + In Charge

a.m. shift

1 : 4 + In Charge

p.m. shift

1 : 3.4/6 + In Charge

p.m. shift

1 : 4 + In Charge

ND shift

1 : 6/10

ND shift

1 : 8

 

B Hospitals (identified in Appendix 2)

Current Ratios

Proposed Ratios

a.m. shift

1 : 4.5/6 + In Charge

a.m. shift

1 : 5 + In Charge

p.m. shift

1 : 4.6/6

p.m. shift

1 : 5 + In Charge

ND shift

1 : 8/10

ND shift

1 : 10

 

C Hospitals (identified in Appendix 2)

Current Ratios

Proposed Ratios

a.m. shift

1 : 4/7 + In Charge

a.m. shift

1 : 6 + In Charge

p.m. shift

1 : 5/8

p.m. shift

1 : 7 + In Charge

ND shift

1 : 10/14

ND shift

1 : 12 + In Charge

     

(Use floater if required)

 

D Aged Care Facilities

(identified in Appendix 2)

Current Ratios

Proposed Ratios

a.m. shift

1 : 5.5/8 + In Charge

a.m. shift

1 : 7 + In Charge

p.m. shift

1 : 8/10

p.m. shift

1 : 8 + In Charge

ND shift

1 : 15

ND shift

1 : 15

 

Accident & Emergency Department

Current Ratios

Proposed Ratios

a.m. shift

1 : 5/6 + In Charge + Triage

a.m. shift

1 : 3 + In Charge + Triage

p.m. shift

1 : 5/6 + In Charge + Triage

p.m. shift

1 : 3 + In Charge + Triage

ND shift

1 : 6/8 + In Charge + Triage

ND shift

1 : 3 + In Charge + Triage

 

Midwifery

Current Ratios (Labour Ward)

Proposed Ratios

a.m. shift

1 : 1

a.m. shift

1 : 1

p.m. shift

1 : 1

p.m. shift

1 : 1

ND shift

1 : 1

ND shift

1 : 1

 

Ante Natal

Current Ratios

Proposed Ratios

a.m. shift

1 : 5/7 + In Charge

a.m. shift

1 : 5 + In Charge

p.m. shift

1 : 5/7 + In Charge

p.m. shift

1 : 5 + In Charge

ND shift

1 : 8

ND shift

1 : 8

 

Post Natal

Current Ratios

Proposed Ratios

a.m. shift

1 : 5/7 + In Charge

a.m. shift

1 : 5 + In Charge

p.m. shift

1 : 5/7 + In Charge

p.m. shift

1 : 5 + In Charge

ND shift

1 : 8

ND shift

1 : 8

 

Operating Rooms

General

Current Number

Proposed Number

3 per theatre

3 per theatre

 

Operating Rooms

Complex

Current Number

Proposed Number

3 per theatre

(require an additional 30 nurses)

4 per theatre

[173] In order to ensure a smooth transition to the recommendation on nurse patient ratios, the following implementation dates should apply:

[174] The Commission also believes that it is appropriate that the following safeguards be put in place:

Example:

Ward Size

Ratio

Nurses Required

Patients above ratio

Option 1

Option 2

30

1:4

7 for 28 beds

2

Appoint an extra nurse or floater

Appoint 7 nurses to 30 patients as <50%, if patient care would not be compromised

29

1:5

5 for 25 beds

4

Appoint an extra nurse as >50%

  

[175] The minimum skill mix that the employer parties aim to achieve during the life of the agreement in all acute general surgical and medical ward areas is as follows:

[176] In all 24 hour, 7-day week areas 5 EFT of Associate Charge Nurses are to be rostered. Of those 5 EFT, not less than 4 EFT are to be permanently appointed with not less than 1 EFT to be used on an acting up, shift by shift basis. The 4 EFT permanent ACNs are to be appointed by 1 January 2001 where this is not alreay in place.

[177] The extra EFT in rural areas arising from the 1997 Public Sector Agreement is to be maintained and funded on an ongoing basis.

[178] In order to assist full time nurses to manage work and professional development, commencing from 1 January 2001, all full time nurses shall be entitled to three days' paid professional development leave per year (in addition to other leave entitlements in the Award and agreements) which may be utilitsed for but not limited to research, home study, attendance at seminars and conferences.

3. FILLING OF VACANCIES

[179] Given that the claim is for the development of an appropriate agreed process for advertising and filling of vacancies, the Commission believes that this matter is appropriately referred to the Agreement Implementation Committee.

[180] On the issue of annual leave relief to be built into all ward/department budget/EFT, the Commission would recommend that provision be made for annual leave relief in all ward/department budgets.

[181] On the issue of extended leave (long service leave, maternity leave etc.) to be fully replaced, the Commission would, on the evidence before it, recommend that in order to maintain nurse patient ratios, extended leave will be fully replaced. Extended leave includes long service leave, parental leave and long term workcover.

4. EMPLOYMENT STATUS

[182] Part of the union claim goes to every employee receiving a letter of appointment stating a single workplace, weekly hours, classification, job title, award, relevant EBA, and days and shifts to be worked.

[183] It is appropriate, given the evidence before this Commission on the number of disputes that have arisen due to the lack of clarity on the status of each nurse within the workplace, that this matter is referred to the Agreement Implementation Committee.

[184] On the issue of each health facility to return to not less than 60% full time and 40% part time, this data is to be made public annually. The Commission believes that it would be in the public's interests and would be prepared to recommend accordingly, that the DHS will collect workforce data and provide to the ANF annual reports including details of the number full time and part time nursing staff.

[185] On the issue of agency employment being strictly limited to unexpected roster vacancies, the Commission believes in granting that claim it would be restrictive and would not assist in dealing with the current crisis within the public health sector. The Commission would be prepared, however, to recommend that employers should endeavour to meet the ratio through the employment of permanent staff. Where this is not possible, bank staff may be used in the interim. Agency staff should only be used for unexpected absences, such as sick leave.

[186] On the issue of no fixed term employment contracts (except graduate nurse programmes or to cover the temporary absence of a permanent staff member, eg. due to maternity leave, workcover etc.) the Commission would be prepared to recommend that fixed term employment will only be used for true fixed term arrangements, including special projects, post graduate training, graduate year positions, maternity leave and long service leave relief.

5. NIGHT DUTY

[187] The material provided to the Commission indicates that there is a severe difficulty in attracting Division 1 Nurses to work on night duty. This has resulted in a number of instances where the nurse in charge on night duty has, in fact, been a Year 1 Nurse. This is due to (a) the lack of experienced nurses wanting to work night duty and (b) agency nurses working night duty but because a directly employed nurse was also working the same shift, although a junior nurse, that nurse was technically in charge.

[188] In order to attract experienced nurses to work night duty, the Commission would recommend that as from 1 October 2000, the night duty allowance be increased in the following terms

[189] In order to ensure that staff that are working permanent night shift continue to work permanent night shift, the Commission would further recommend that as from 1 October 2000 the night duty allowance for permanent night duty staff be increased in the following terms:

6. CAREER STRUCTURE

Grade 7

[190] On the issue as to whether every agency must employ a full time Director of Nursing (DoN) on each campus, the parties' positions are as follows.

[191] ANF stated that almost every agency does have a full time DoN. The ANF emphasised that the shared view of nursing professionals, eg. Directors of Nursing and Deans of Nursing is that DoNs full time should be appointed in accordance with the award on each campus. They argued that to do so would endorse the position that the major business of hospitals is nursing and therefore they need a DoN to manage nursing and also to ensure that professional standards are met.

[192] The ANF further emphasised that the private hospital regulations ensure that a DoN has to be appointed on each campus.

[193] For its part, the employers argued that there was no obligation under the award to appoint a DoN at each campus, that in the smaller hospitals the DoNs are only located on one campus but service a number of other smaller campuses and that there was no evidence before the Commission that it was not working effectively. The VHIA also argued that instead of DoN, a number of campuses have Charge Nurses.

[194] Based on the information provided to the Commission, the Commission recommends that each health agency have appointed a full time dedicated DoN that is classified in accordance with the award on each campus. It does so on the basis that a DoN and the authority a DoN is required to oversee nurses on a day to day basis.

[195] In regards to the other points raised under Career Structure; that is, the DoN be an ex-officio member of the Board, that the Executive Director of Nursing shall be classified at Grade 7 and that where a DoN also undertakes the role of the Chief Executive Officer, they shall receive an additional 75% loading on their salary, the Commission would make the following points.

[196] On whether or not the DoN should be an ex-officio member of the Board, it is the Commission's view that the make-up of the executive management committee is a decision for the hospital and is not prepared to interfere with that.

[197] On the other two outstanding issues, the Commission does not have sufficient material before it to indicate that what the ANF seeks is warranted.

Grade 6

[198] In regards to a Grade 6, the Commission, on this issue, would be prepared to recommend that some facilities of over 30 beds may give future consideration to the appointment of a Deputy Director of Nursing on each campus.

Grade 5

[199] In regards to Grade 5, the Commission recommends that with regard to Assistant Directors of Nursing (AdoN) in areas such as but not limited to quality assurance, project officer, information technology, human resources, bed allocations/management and research, the DHS Nursing Policy Branch shall ascertain the current situation regarding the number and location of nurses employed in this classification.

[200] The DHS Nursing Policy Branch, after consultation with the ANF, shall allocate funding for the implementation of 50 EFT ADoN to be implemented from 1 March 2001. The Commission is prepared to make this recommendation for the following reasons:

[201] In regards to 4.7 of the ANF Claim, the Commission would recommend that the matter of a Division 1 Nurse classified at Grade 5 to be appointed to be in charge of each campus in all off duty periods of the DoN, will remain before the Commission as currently constituted, as a s.111AA recommendation. The recommendation, once made, will be effective 1 October 2000.

Grade 4

[202] The Commission, on the material before it, would recommend that as from 1 October 2000, one EFT Charge Nurse must be appointed in each ward/unit where this is currently not the case. The Commission does so because it believes that the overwhelming evidence before it indicates that the majority of wards/units have full time Charge Nurses. The full time Charge Nurses are necessary because they have duties which often result in them being absent from the ward/unit and part time Charge Nurses could hardly ever be seen by ward/unit staff and would not be able to fulfill the demands of the role.

Nurse Educators

[203] On the material before the Commission, the Commission is satisfied that the decline in the numbers and roles of nurse educators has had a serious effect on the way in which nurses, particularly graduates nurses, carry out their profession. The Commission is satisfied that Nurse Educators play a pivotal role in ensuring that nurses continue to provide the maximum amount of professionalism and understanding in carrying out their nursing duties. The Commission is also of the view that additional nurse educators would assist in helping to stop the exodus of graduates from nursing.

[204] The Commission would therefore recommend that the DHS Nursing Policy Branch ascertain the current situation regarding the number and location of nurses employed in this classification.

[205] The DHS Nursing Policy Branch, after consultation with the ANF shall allocate funding for the implementation of 50 EFT Nurse Educators to be implemented from 1 March 2001.

Clinical Nurse Consultant

[206] In regards to Clinical Nurse Consultant (CNC), the Commission is satisfied that all parties agree, including the DoNs, as well as members of the Bennett Committee, that the CNC position would assist with the process of recruitment and retention, for it does provide a career path that could include the clinical stream.

[207] The Commission would therefore recommend that the current CNC definition be broadened to include all clinical streams.

[208] As of 1 October 2000, for the purposes of Clause 3(1) of the Nurses (Victorian) Health Services Award 1992 the term "major hospital" will no longer limit a Clinical Nurse Consultant classification and grading. Consequently, a CNC who is either now or in the future employed in a facility not defined by the award as a major hospital is eligible for classification as though employed by a major hospital as defined in the award;

[209] Clause 3(1) also refers to the term "across the regions". For the purposes of classification applicable to the employee, as from 1 October 2000, the term "across the regions" shall include where an employee delivers a clinical consultancy outside the nurse's worksite/campus/centre, although the CNC could be required to accept referrals from outside the catchment area of the worksite/campus/centre;

[210] With regard to the Clinical Nurse Consultant, the DHS Nursing Policy Branch shall ascertain the current situation regarding the number and location of nurses employed in this classification. The DHS Nursing Policy Branch, after consultation with the ANF, shall allocate funding for the implementation of 50 EFT Clinical Nurse Consultants, to be implemented from 1 March 2001.

Clinical Nurse Specialist

[211] In line with what has been recommended for Clinical Nurse Consultant, the Commission would recommend that as from 1 October 2000, the CNS classification shall be available to all Division 1 Nurses, whether employed full time or part time who have:

The application and appeal process is referred to the Agreement Implementation Committee.

Community Health Nurses

[212] The argument before the Commission is that due to the amalgamation of health services, this has lead to a loss of many sole Community Health Nurse classifications, with the nurse who previously held that classification placed under the supervision of a DoN. However, the ANF argue that the work and responsibilities did not change. They further argue that the health facility amalgamations lead to, possibly unintended, consequences for community health nurses.

[213] The VHIA, for its part, argued that some nurses still functioned in a sole way; however, due to the amalgamation processes some nurses now do not operate in a sole way, they don't have the responsibility that goes with operating in a sole way.

[214] The Commission is satisfied that the health facility amalgamations have had to an unintended consequence for a number of community health workers. The Commission is satisfied that this is an inequitable position and should be rectified. The Commission would, therefore, recommend that the definition of Sole Community Health Nurse shall apply to a community health nurse at a particular site, whether full time or part time who is the only community health nurse at that site. Similarly, where two or more health nurses are employed but predominantly work different days or job share, sole classification would apply.

[215] The second part of the ANF Claim is referred to the Agreement Implementation Committee.

Division 2 Nurses

Senior Allowance

[216] The Commission is satisfied, on this matter, that it is more appropriate for the parties to meet and by 1 October 2000, determine guidelines and parameters for the senior allowance referred to in Clause 63(M) of the Nurses (Victorian Health Services) Award.

Nauseous Allowance

[217] On the issue of nauseous allowance, there is agreement on this by all parties. Therefore, the Commission would recommend that to ensure all Division 2 Nurses are treated equitably, as from 1 October 2000 the hourly rate for Division 2 Nurses is to be increased by the equivalent the nauseous allowance. This is to occur prior to applying any other increases. Nauseous allowance will no longer be payable.

District Nurses Non RDNS

[218] The Commission notes that there are further discussions between the parties under s.111AA proceedings.

RDNS

[219] The Commission notes that at 4.2.1 and 4.2.2 of the ANF Claim, save for the Grade 4B classification, which the Commission will deal with, shall be dealt with through s.111AA proceedings.

Other

[220] On the issue of employees having access to Grade 4B; on the material provided to the Commission, particularly through the witness statements, the Commission would recommend that Charge Nurses who currently do not have access to Grade 4B and Nurse Educators who are currently classified at Grade 4A shall progress to Grade 4B after completion of two years' experience with that employer at Grade 4A.

[221] Those currently classified at Grade 4A who have two years' experience or more shall move to the first increment of Grade 4B on 1 October 2000 and to the second increment twelve months later.

[222] It is the intention of this Clause that an employee cannot access Grade 4B until she/he has two years' experience (as defined) as a Grade 4A The method of assessing Grade 4B for those in major hospitals remains unchanged.

[223] A year of experience is defined as working an average of three shifts or more per week in a year. An employee will need to complete an additional year to advance if averaging less than three shifts per week.

[224] Assistant Centre Managers employed at Royal District Nursing Service will remain before Commissioner Blair as a s.111AA recommendation. The recommendation, once made, will remain effective 1 October 2000.

Grade 3

[225] From 1 October 200 the following employees shall have access to Grade 3B

[226] Such employees shall progress to Grade 3B after completion of two year's experience with that employer at Grade 3A. For those currently classified at Grade 3A who have two year's experience or more they shall move to the first increment of 3B on 1 October 2000, and to the second increment 12 months later.

[227] It is the intention of this Clause that an employee cannot access Grade 3B until she/he has two years experience (as defined) as a Grade 3A. The method of accessing Grade 3B for those in major hospitals remains unchanged.

[228] A year of experience is defined as working an average of three shifts or more per week in a year, the employee will need to complete an additional year to advance if averaging less than three shifts per week.

[229] The Commission is prepared to recommend the above as it believes that the current pay differentials across country and metropolitan hospitals is not equitable and that, due to rural health service amalgamations, ACNs employed by the same employer are now paid as either a Grade 3A in district hospitals or Grade 3B in base hospitals, which is a historical anomaly which should be remedied.

[230] On 4.24 of the ANF Claim, "Classifications for recently created specialities/positions, the Commission is satisfied that this matter should be referred to the Agreement Implementation Committee.

5. EDUCATION

[231] There was a fair bit of submission on the issue of a qualifications allowance. It ranged from the need to provide incentives to nurses to undertake post graduate courses, the decline of nurses with specialist qualifications as a reflection of the remuneration arrangements, the higher formal education for nurses required substantial qualifications allowances, to argument, that to provide for a qualifications allowances would be an inequity for those who could not undertake or did not want to undertake further education in order to achieve additional qualifications.

[232] The Commission is at a loss to understand an argument as to why some formal qualification allowance does not apply, given that in a range of industries the additional training and the additional qualifications that once received does provide an opportunity to get those qualifications recognised by additional rewards (remuneration).

[233] Under the present system, the Commission is satisfied that insufficient incentive is provided for nurses to undertake additional education, education which, in the Commission's view, is vital to ensure the proper nursing services are provided to the Victorian public.

[234] The Commission would, therefore, recommend that from 1 October 2000, qualifications allowances are to be returned, provided that:

[235] The above allowances are to be paid during all periods of leave except sick leave beyond 21 days and long service leave.

Study Leave

[236] On this issue there appears to be an understanding between all the parties on the importance of study leave. Therefore, on the material before it, the Commission would recommend that from 1 January 2001, for up to 1000 nurses, 4 hours paid study leave (pro rata for part time employees) for 26 weeks per annum for post graduate study.

[237] If more than 1000 EFT of nurses apply for study leave and are eligible for this, discussions will take place between ANF and the Government.

[238] From 1 January 2001 each employee is entitled to two days paid study/conference/ seminar leave per annum.

[239] In regards to claim 5.7 of the ANF Claim, given the overall package that is now part of the overall recommendation, the Commission is not prepared to deal with this issue.

[240] In regards to claim 5.8 of the ANF Claim, this is a matter which the Commission is not prepared to enter into as it is a matter between the Union and its members.

6. WORK/TIME/LIFE

[241] Sufficient material has been provided to the Commission to indicate that there is regularly periods of time worked by nurses that is not paid for. This is a position that the Commission believes is not equitable.

[242] The Victorian public cannot expect that, where the health system is in crisis in terms of availability of nurses, nurses work beyond the rostered hours in order to ensure that the appropriate health care is provided to the public hospital and not get compensated for that additional time.

[243] Nurses need to be acknowledged for the extra effort they put in over and above their rostered shifts.

[244] Therefore, the Commission would recommend that as from 1 October 2000:

[245] In regards to 6.1.1 of the ANF Claim, consistent with industry standards at large and the concerns raised by the Unions concerning occupational health and safety, the Commission is prepared to recommend the following in order to ensure that there is sufficient disincentive for the employers who may require their staff not to have at least a 10 hour break between the end of one shift and the next successive shift not to do so.

[246] Therefore, the Commission would recommend that from 1 October 2000, when overtime work including recall work is necessary it should be so arranged that employees have at least 10 consecutive hours off duty between that work and the next successive shift.

[247] An employee who works so much overtime or recall work such that they would not have had at least 10 consecutive hours off-duty between overtime or recall work and their next succeeding rostered period of duty the employee shall be released after completion of such overtime or recall worked until they have had 10 consecutive hours off duty, without loss of pay for rostered hours occurring during such absence.

[248] If on the instructions of her or his employer, an employee resumes or continues work without having had 10 consecutive hours off duty they shall be paid at the rate of double time until they have been released from duty for such rest period and they shall then be entitled to 10 consecutive hours off duty without loss of pay for rostered hours occurring during such absence.

[249] In regards to 6.2 of the ANF Claim, the Commission is not prepared to make any recommendation as it believe that it is adequately dealt with in the existing agreement or Awards.

Rosters and ADOs

[250] The issue of rosters and ADOs are two separate claims. The debate that has been continuing in the Commission is that the two issues are inextricably linked. The Union's claims is for the re-introduction of the 8, 8, 10 roster.

[251] This roster is vehemently opposed by the employers as they believe it is too rigid, does not provide flexibility. The employers believe that the current system in place provides sufficient flexibility for staff to meet their own personal needs as well as those of the needs of the community and that the 8, 8, 10 roster would provide more difficulties than what it is intended to resolve.

[252] Further, the employers say that in regards to the ADO and its relationship to the 8, 8, 10 roster, sufficient flexibility exists within the current rostering system that would enable any nurse who wishes to accumulate an ADO to do so without necessarily resorting to a strict 8, 8, 10 roster.

[253] The advice to the Commission is that the ADO still exists in a number of places referred to earlier in this decision. However, due to events of the last several years an ADO once enjoyed by a large number of nurses is no longer available.

[254] The Commission is of the view that this is an inequitable position. In order to rectify this, the Commission would recommend that commencing 1 October 2000, an accrued day off is to accrue for all full time nurses. This is to be in accordance with the reduced hours of work agreement and the terms of the Nurse (Victorian Health Services) Award 1992, specifically clauses 13(a), 13(a1) for full time day shifts and 13(a2) for full time night shifts which a roster cycle in accordance with 13(a4.1) and the comparable provisions for Division 2 and Mothercraft Nurses.

[255] This is an issue that was also identified as being an important issue for the recruitment and retention of nurses arising out of the Bennett Committee:

[256] On the issue of rosters, the Commission would recommend that, to ensure sufficient overlap time to enable such issues as the taking of meal breaks, provision of in-service education and team-building strategies as recommended by the Recruitment and Retention Committee, from 1 October 2000, employers will re-introduce, where not already in place, a roster for full time staff comprising an eight hour day shift, eight hour evening shift and a 10 hour night shift, plus meal breaks.

[257] Discussions may occur locally between the ANF and the employer to consider application of this roster configuration for part time staff.

[258] Further, the Commission, in taking into account the arguments by the VHIA and the DHS concerning the issue of flexibility and what currently exists within the workplace and the argument against imposing a strict 8, 8, 10 roster, the Commission would further recommend that where there is any ward or unit where the majority of ANF members or persons eligible to be members propose to have shifts contrary to the provisions of this agreement, the ANF will conduct a secret ballot of affected members. If the members generally prefer an alternative roster, then a written agreement between the ANF and hospital management shall facilitate the outcome of that ballot.

[259] On the issue of change of roster allowance and the change of shift allowance, the Commission is prepared to refer these matters to the Agreement Implementation Committee.

On-call allowance

[260] On this matter the VHIA referred the Commission to a s.170MX decision concerning this matter which was rejected by a Full Bench. The VHIA did indicate that if the nurses' on-call payment is below what is considered to be standard then the VHIA would support any move to bring the on-call allowance up to standard.

[261] Some examples were provided were nurses, for 12 hours, were paid $9.20 and scientists, for a 24 hour period spread over Monday to Friday were paid $15.95. Health professionals, again spread over a 24 hour Monday to Friday period, were paid $16.10.

[262] The VHIA's argument is that on balance the $9.20 is comparable to scientists and to other health professionals.

[263] The ANF and the HSUA, for their part, indicated that the minimum on-call payment is for three hours and this is generally standard. It is an occupational health and safety issue as a number of nurses are never off call and, once completing their regular weekly shifts, are on-call until they commence their next lot of shifts. The ANF argued that a number of their members have not had a break from being on-call for at least 12 months.

[264] Based on the material before it, the Commission would recommend that as from 1 October 2000, the on-call allowance will be 2.5% of the base rate per 12 hour period.

[265] Further, from 1 October 2000, where recall to duty can be managed without the employee having to return to his or her workplace, ie by telephone, such employee shall be paid a minimum of 1 hour's overtime for such recall work. For subsequent recalls beyond the first hour, the employee will be paid a minimum of one hour's overtime provided that multiple recalls within a discrete hour will not attract additional payment.

[266] In addition, in the event of any employee being recalled to duty during an off-duty period where that work is not continuous with the next succeeding rostered period of duty, on or after 1 October 2000, such employee shall be paid a minimum of three hours' pay at the appropriate overtime rate.

[267] In order to ensure that there are sufficient breaks for nursing staff free from on-call duty, the Commission would also recommend that from 1 October 2000 all employees are to receive four clear days per fortnight guaranteed free of on-call or duty.

7. OCCUPATIONAL HEALTH & SAFETY

[268] In regards to accident make-up pay provisions sought in the ANF Claim, the Commission is not prepared to deal with this matter as part of this decision. The Commission does accept that there are concerns regarding flow and leap-frogging prospects and accepts the argument of the DHS that, currently what is in place is government policy through the appropriate legislative processes. However, the Commission is satisfied that the parties should continue to deal with this matter under s.111AA to deal with any anomalies that can be identified by the Union.

[269] In regards to 7.2 and 7.2 of the ANF Claim, the Commission is satisfied that these matters should be dealt with through the Agreement Implementation Committee.

8. LEAVE ENTITLEMENTS

Maternity Leave

[270] On the issue of maternity leave, argument has been provided that indicates that there is a discrepancy between what other state government employees receive by way of maternity leave, and where nurses working alongside other nurses who may have been employed by the Commonwealth receive 13 weeks' paid maternity leave, whereas other nurses, working for the State, receive only two weeks' paid maternity leave.

[271] The Commission believes that it should make a recommendation that goes some way to acknowledging the importance of maternity leave and at least in part, places nursing on a similar footing to other state government employees.

[272] The Commission would therefore recommend that from 1 October 2000:

[273] Provided that employees who already enjoy maternity/parental leave payments in excess of those above shall not suffer any disadvantage.

[274] Female employees shall be entitled to work until their estimated date of confinement except where this would present a risk to the employee of the unborn child. If requested by the DoN, the employee shall provide a statement confirming that their medical practitioner or midwife believes that continuation in their position is not a risk to the employee of the unborn child. If this is not provided then the employer will make all practical efforts to remedy the unsafe situation and if this is not possible, the employee will be offered a `safe' alternate position as stipulated in the existing provisions of the Award.

Long Service Leave

[275] On this issue, the Commission is satisfied that, given the nature of nursing where nurses work generally within the hospital system or related system, eg. aged care, there should be serious consideration given to the establishment of a statewide long service leave fund. Such an approach is not inconsistent with other industries that operate similar to the public hospital system, eg. building industry.

[276] The Commission would therefore recommend that the employer parties and the ANF endeavour to develop a process for a statewide long service leave fund. The parties may seek further assistance of the Commission should any party desire.

[277] In regards to the issue of pro-rata long service leave after five years, the Commission is not prepared to issue a recommendation on this point.

[278] In regards to the averaging of the long service leave entitlements over previous 10 years' service, the Commission is prepared to refer this matter to the Implementation Committee,

[279] On the issue of taking double long service leave at half pay, the Commission is well aware that within a range of industries, the taking of long service leave has now been made far more flexible compared to the rigidity that existed several years ago, where most employees were only able to take long service leave in two lots. A lot of agreements now in industry allow for multiples of weeks to be taken to suit employees' particular circumstances.

[280] Therefore, consistent with the approach taken by a range of industries, and with the agreement of the parties, the Commission would recommend that an employee who takes long service leave on or after 1 October 2000, on the employee's request and where agreed to by the employer, may take double long service leave at half pay. Such a provision is consistent with other provisions within a range of public services throughout Australia.

Annual Leave/Public Holidays

[281] In this regard and based on the submissions by way of witness statements, the Commission would recommend that the anomaly that exists within Clause 26 of the Nurses (Victorian Health Services) Award, which makes reference to the Blood, Bank, Pathology, Outpatients and X-Ray be removed.

[282] On the claims of 8.8 and 8.9 of the ANF Claim, the Commission is not prepared to issue a recommendation.

[283] On the issue of 8.10 of the ANF Claim, pro-rata entitlement for public holiday for part time staff rostered off on a public holiday, the Commission has had to deal with this by way of a previous industrial dispute and not necessarily as part of these proceedings, so therefore, the Commission has an understanding of the difficulties that have occurred in the application of this particular matter.

[284] Therefore, based on the Commission's previous experience, the Commission would recommend the following:

Blood Donor Leave

[285] Consistent with what occurs in a range of industries, the Commission would recommend that employers will release staff upon request to donate blood where a collection unit is on site or by arrangement at the local level.

[286] The Commission is satisfied that 9.1, 9.2 and 9.3 of the ANF Claim should be referred to the Agreement Implementation Committee.

[287] In regards to 9.4 of the ANF Claim, which is four hours' paid time for ANF Job and OH&S Representatives per week to attend to activities including hospital committees, the Commission would recommend that employers should recognise the role of Job and OH&S Representatives and as such should enable Job and OH&S Representatives access to training as appropriate to discharge their role and as required by legislation/awards.

[288] In regards to 9.5 of the ANF Claim, again consistent with an approach taken in a number of industries, the Commission would recommend the re-introduction of a policy that the ANF is to be notified in writing of all new nursing employees on a regular basis and invited to attend all induction/orientation programmes for employees eligible to be members.

[289] In line with movement in corporate approaches in dealing with mothers who are breast feeding, the Commission would recommend that as soon as practicable each employer is to provide private and comfortable areas at each worksite for staff members who are breastfeeding to enable them to express or feed children while at work.

[290] In regards to 9.7 and 9.8 of the ANF Claim, the Commission is of the view that it is appropriate that they be referred to the Agreement Implementation Committee

[291] In regards to 9.9 of the ANF Claim, in order to ensure that there is an improvement in the relationship between job representatives, employees and officials of the ANF and in order to assist in the early resolution of what may evolve into industrial disputation, the Commission recommends that the ANF is given access to employees, and job representatives and/or ANF officials should be provided access to facilities such as telephones, computers, e-mail, notice board and meetings rooms in a manner that does not adversely affect service delivery and work requirements.

[292] In regards to 10.1 of the ANF Claim, concerning the development of the model organisational change agreement, the Commission believes that this is more appropriately dealt with by the Implementation Committee.

[293] Finally, all provisions of the 1997 Public Sector Agreement will continue to apply except where they are in conflict with the provisions of this Agreement.

WAYNE'S WORLD

[294] This title was affectionately (hopefully) used following conciliation conferences where the parties not only focused on the possible short term remedies to address the nursing crisis within the state of Victoria, but also focused on long term strategies.

[295] It has become obvious to the Commission that there needs to be developed collectively a strategy to ensure that international best practice in regards to the flow of communication, not only from top down but from bottom up, is put in place so that the opinion of all those within the workplace is not only listened to, but also respected.

[296] The Commission is appreciative that nursing came out of the army and the church where there were very strict hierarchical structures and the flow of information commenced at the top and went down to the bottom. There was no process of allowing information from the bottom to flow to the top.

[297] What has become evident to the Commission is that that process is no longer applicable. Evidence was provided to the Commission which indicated very clearly that some management within the hospital structure believe that if someone below their rank has a view that is different to their own and those whose view is different dare to challenge them in a constructive way, then they are branded as non-caring, or not committed to nursing. That, in the Commission's view, is a sign that those persons that hold that view must seriously consider changing that or retire gracefully from the workforce, for time is passing them by.

[298] Further evidence was provided to the Commission which indicated very clearly that even chief executive officers are starting to realise that they must listen to the workforce. The evidence to the Commission went to the extent that a chief executive officer commented after the resolution of the dispute that:

[299] Further evidence was provided to the Commission at the hearing on Monday 28 August 2000 where a DoN, on questioning from the Commission, indicated very clearly the strong view that those who are occupying management positions that do not listen to the workforce should take a serious long look at themselves and evaluate the constructive role that they can play.

[300] The Commission is not only concerned with the flow of information from hospital employees up to management and from management to hospital employees being constructive, the Commission is also deeply concerned with the workload issue that gave rise to these proceedings under s.111AA.

[301] The Commission is also concerned that there has not been a serious review of not only nursing workload but also of nursing functions. The Commission is satisfied that there are a number of functions that could be considered lower level functions for a Division 1 Nurse that should be seriously looked at as to whether or not a Division 2 Nurse, with the appropriate training and accreditation in occupational health and safety are able to perform.

[302] This would need to be looked at within a clinical context.

[303] The Commission would therefore recommend that interested parties to this dispute, that is the DHS, the VHIA, the ANF and the HSUA establish a working party with an independent chair to look at three components:

[304] The parties will put these recommendations into an enterprise agreement form and follow the necessary processes under the Workplace Relations Act 1996 to have it certified.

[305] The parties will also draft an appropriate no extra claims clause.

BY THE COMMISSION:

COMMISSIONER

Appearances:

R Burrows for the Australian Nursing Federation

K Wilson for the Health Services Union of Australia Victoria No. 1 Branch

A Djoneff for the Victorian Hospitals' Industrial Association

T Lee and M Murphy for the Department of Human Services

Hearing Details:

2000.

Melbourne:

August 3, 7, 9, 12, 14, 17, 26, 27, 28, 29

Perth:

August 21, 22, 23, 24

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