T3987 and T3926
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, Tasmania No. 1 Branch Tasmanian Confederation of Industries NURSING HOMES AWARD
Wage Rates - Conditions of employment - State Wage Case November 1989 - Structural Efficiency Principle - broadbanded classification structure - definitions and translation process established - principles satisfied - award varied - operative from ffpp 22 December 1992 REASONS FOR DECISION When the wage rates and conditions of employment for persons employed in Nursing Homes were transferred from the Hospitals Award to the new Nursing Homes Award1, it was on the basis that it provided a "starting point" for the finalisation of award restructuring for this Industry. On 18 March, 1992, a Full Bench of the Commission granted an application2 made by the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA) for this award to be a paid rates award. The current applications before the Commission were made for the purpose of restructuring the Nursing Homes Award. The following subject matters formed part of the applications:
A significant number of issues were put to the Commission as consent matters including the new broadbanded wage and classification structure with accompanying classification standards. An exhibit was tendered (see attachment A) showing the wage rates and relativities at the completion of the wage rate adjustments (including the 2.5% increase arising out of 13 August 1991 State Wage Case decision and the broadbanding process. The Commission was informed that the parties had also reached agreement on the following: 1. the increases in wage rates to be phased in over four instalments for which they were prepared to make a separate application on each occasion; 2. the translation from the old award would be in the form set out in an appendix to the amended award; 3. in order to minimise any disputation arising out of the translation process and to ensure grievances were dealt with in a fair and reasonable manner, a procedure was adapted (see attachment B). Turning now to the disagreed matters, the parties requested that a number of issues be determined by the Commission the results of which should be included in the restructuring package. I now turn to those issues and for the purpose of identifying the matters for arbitration I will be addressing the draft new award tended by Mr Targett of the Tasmanian Confederation of Industries (TCI) and marked as Exhibit TCI 6 as amended. 1. Clause 11 - Annual Leave, subclause (c) - Holidays with Pay (iii) The claim by the TCI was as follows:
The counter claim presented by the HSUA was in the following form:
The TCI also sought the inclusion of a new proviso in the following terms: Sub-Clause (g) - Payment for Period of Leave
The claim by the HSUA relating to this matter was as follows:
In presenting submissions under this heading the parties highlighted the fact that, depending on the outcome of these questions, there may be a consequential affect on Clause 23 (c)(i) of Exhibit TCI 6. They also stated that the issues surrounding this clause, which form part of the claim, had the potential to effect other awards of the Commission. I concur with this submission of the parties and this matter will be referred to the President with a recommendation that it be heard by a Full Bench of the Commission. 2. Clause 17 - Contract of Employment The current award contains a provision which reads as follows:
Mr Targett supported the retention of this clause mainly on the basis that it was an existing award provision. Mr Warwick, whilst not supporting termination of employment on the grounds of any distinction, exclusion or preference on the basis of gender, was of the view that the clause should be removed. In support he stated that if an employee was terminated (for any reason) then it was possible to have any dispute over the issue considered by the Commission via section 29 of the Act. His concern about leaving the said provision in the award, was that, if a dispute arose over the subject matter contained in the award, then it may be argued that the issue was a breach of the award, and should be pursued through a court of competent jurisdiction. Mr Warwick said his organisation did not want to be in that position. For the reason enunciated by Mr Warwick I am not going to include this clause in the new award. 3. Clause 23 - Holidays With Pay The TCI requested that the following days only be included in the award as holidays with pay along with a provision dealing with the payment of such days. Their claim was as follows:
The HSUA also had a view on these issues contained in Clause 23 - Holidays With Pay and they sought the following:
I am of the view that the issue of holidays with pay is such, that it may have an affect on other awards of the Commission and for that reason I am going to refer this matter to the President with a recommendation that it be hear by a Full Bench of the Commission. 4. Clause 24 - Hours The claim presented by the TCI was for the purpose of having this award reflect a single span of ordinary hours of work, ie 6.00 am to 7.00 pm, Monday to Friday, as opposed to the current award provision which contains two spans of hours, ie one for day workers (7.00am to 7.00pm) and another for shift workers (6.00am to 6.00pm). Mr Targett for the TCI presented submissions in support of the claim and they can be summarised as follows: 1. the new provision would simplify the award and give greater flexibility at the enterprise level; 2. it was consistent with the spirit and intent of the Wage Fixing Principles; 3. it would be possible for day workers to commence work (without penalty) one hour earlier, but it would not adversely affect rostered employees; 4. the Commission had in the past taken into account the minimum requirements and the nature of the employers business when determining the span of ordinary hours e.g. Shellfish, Fish, Aquaculture and Marine Products and Farming and Fruit Growing Awards; 5. the suggested span of hours would allow for greater freedom when determining residents meal times without additional cost to the employer and these freedoms were enshrined in the Standards for Nursing Home Care and the Charter of Residents' Rights and Responsibilities in approved nursing homes. Mr Warwick for the HSUA opposed the introduction of a single span of hours for this award. It was his view that the current award provision was capable of handling the needs of both the employer and employees. He maintained that the Wage Fixing Principles did not require the span of ordinary hours to be varied and there was no evidence that residents wanted to exercise their freedom as enunciated by Mr Targett. In respect to this part of the claim I hereby decide that a single span of hours will be introduced into this award in the manner sought by Mr Targett including the consequential variations to other clauses contained in the award. My reasons for doing so are: 1. creating greater flexibility in the span of hours is not inconsistent with the spirit and intent of the Wage Fixing Principles; 2. there will be minimal impact on employees; 3. it is consistent with the award modernisation and structural efficiency process which is the overriding reason for lodging these applications; 4. I support the submissions of Mr Targett for the introduction of a single span of hours; 5. the span of hours of 6.00 am to 7.00 pm is appropriate for the employers' business in this industry. Another matter which Mr Warwick requested the Commission to give consideration to the following proviso contained in Exhibit TCI 6 which states: "PROVIDED ALWAYS that notwithstanding the provisions of (b) by mutual agreement between a representative of the employer concerned and a majority of the employees concerned within a particular ward or area and with the approval of the appropriate union, the ordinary hours of work for night shift employees may be extended to 10 per day (inclusive of paid meal break of not more than 25 minutes duration) to be paid for at the appropriate shift rate." This provision is currently contained in the Nursing Homes Award and no cogent reasons were put to me during the course of submissions that would have me vary that provision. Therefore, the words as contained in Exhibit TCI 6 and the current award will remain. 5. Clause 32 - Part-Time Employees (as defined) Mr Targett presented a submission in support for the inclusion in the award, of a provision which would allow part-time employees (where there is agreement between the employee and the employer) engaged to work more than 20 hours per week, to receive the 20% loading in lieu of pro rata benefits in respect to holidays with pay, sick leave and annual leave. Mr Warwick expressed some concerns in relation to adopting the TCI's submission especially in relation to the casualisation of the industry. Having considered the submissions on this issue I am prepared to grant the claim on the understanding that: 1. it is implemented by agreement between the employer and employee; 2. prior to entering such agreement the employee has an opportunity to consult his/her union official; 3. that the agreement can be discontinued by mutual consent of both parties and at the request of one such party. With these safeguards in place I feel confident that some of the fears expressed by Mr Warwick will be eliminated. In addition the new clause will provide extra flexibility to the employer and the employee. The claim presented by Mr Targett will be included in the award in the manner sought and I decide accordingly. 6. Clause 37 - Right of Entry Limited argument was presented by the parties in respect to the precise verbiage to be contained in a right of entry clause. Mr Targett relied on the Full Bench decision and order arising out of application T.4000 of 1992 dated 11 November 1992. Mr Warwick proposed a form set out in Exhibit HSUA 3. I am of the view that the prescription submitted by Mr Targett is the more appropriate of the two presented and this will be reflected in the award. My reasons are as follows: 1. the clause is consistent with the Industrial Relations Act 1984 and the Regulations pertaining thereto; 2. it permits an authorised representative of a registered organisation that had been granted an interest in the award to enter a nursing home as opposed to "an officer of an organisation of employees engaged in the industry, in respect of which the Commission has jurisdiction or to which this award applies" (underlining mine); 3. The clause adopted by the Commission sets out conditions under which the employee representatives may enter nursing homes. Except for inspection of records, the HSUA proposal does not contain any conditions. For the guidance of the users of this award I believe some fundamental conditions on entry should be spelt out to eliminate possible disputation and disruption; 4. I do not accept that part of the HSUA's proposal that deals with penalties for non-compliance with a clause in the award; they are contained in the Act and thus beyond the jurisdiction of the Commission. 7. Clause 41 - Sick Leave This part of the claim deals with the sick leave entitlement for part-time employees. It was Mr Targett's submission that it was essential for the calculation be carried out on a pro rata basis and he tendered the following clause to reflect his position:
Mr Warwick was of the view that only part-timers working less than 20 hours per week should have the sick leave entitlement calculated on the formula submitted by Mr. Targett, however, those working in excess of 20 hours per week should be entitled to paid sick leave in any one year on the following basis:
To do other than grant Mr Targett's application would mean a certain group of employees would be in an advantageous position, when compared with fulltime employees and part-time employees working less than 20 hours per week accruing a sick leave entitlement. I am of the view that all employees, entitled to the provisions of the sick leave clause contained in this award, should be treated in a fair and equitable manner. This can only be achieved by ensuring that those employees who work less than a full-time employee (and who are entitled to paid sick leave) receive their entitlement on a pro-rata basis to that of a full-time employee. The award will be varied in the manner sought by Mr Targett and I decide accordingly. 8. Union Subscriptions - Deductions The HSUA sought to include in the new restructured award the following
It must be remembered, that even though this provision is currently contained in the Nursing Homes Award, it was only transferred to this award from the Hospitals Award along with all other provisions when the award was made. This was on the basis that it was a "starting point" upon which this review would be conducted. Therefore, whether or not this clause should be retained in the new restructured award must now be decided on merit. It is not my intention to go through chapter and verse, the submissions presented by the parties, suffice to say, that the claim was opposed by Mr Targett. The Commission has jurisdiction to hear and determine any matter arising from, and relating to, an industrial matter. An "Industrial Matter" under the Act means:
The primary question in determining this claim, is whether it is open to me to include such a provision in the award, given the definition of 'industrial matter'. There is no doubt that such a provision would: 1. make it mandatory for the employer to deduct union subscriptions from an employee's wages if a request is made by the employee and the appropriate authorisation has been signed; 2. make the employer the financial agent of the employee for the benefit of the union. I can only conclude that a provision as claimed by the union is not a matter pertaining to the relationship between the employer and the employee but the employee and his/her union. That being the case I am of the view that the claim is not an industrial matter within the meaning of the Act and therefore I decline to include it in the award. 9. Clause 46 - Wage and Time Record Mr Warwick presented submissions in support of the following clause being included in the award. It reads as follows:
This was opposed by Mr Targett on the basis that, the time and wages records required to be kept by the employer, were clearly spelt out in the Act and he saw no reason to duplicate those provisions in the award. I am not prepared to grant the claim as presented by Mr Warwick as I am of the view that the Act and Regulations more fully describe the records to be kept by the employer, and I would not want to create the impression that the employer could do less than that which is required by the Act and Regulations. In view of the foregoing, I hereby determine that the following clause be inserted in the award as a reminder to employers of the need to keep the required records. It is as follows:
11. Clause 38 - Roster (as defined) When considering this clause Mr Targett presented an exhibit TCI 11 in lieu of the clause contained in TCI 6. Apart from the span of hours, which was determined earlier in this decision, the only other issue of contention between the parties was the question of entering into a non-rotating roster and reverting back to a rotating roster. In this respect Mr Targett claimed the following:
Mr Warwick was of the opinion that there should be no requirement for there to be "agreement" between the employer and all employees to enter into a non-rotating roster and likewise when the majority of employees decide to return to a rotating roster. I am of the opinion that the subclause under consideration is the correct one, in that, one side does not have automatic veto over the other when entering into or extricating themselves from a non-rotating roster. If there was no requirement for the employer and the employees to reach agreement, then the roster arrangements could be changed at regular intervals thus making it an impossible task to efficiently and effectively manage a nursing home. For these reasons I reject Mr Warwick's submission on this point. There were other issues of concern raised by the HSUA in relation to TCI 11 however only observations were made on those pints and nothing of a precise nature was put to me for arbitration. Conclusion: OPERATIVE DATE: The operative date of this decision shall be the first full pay period to commence on or after 23 December 1992. Order
R.J. Watling Appearances: Dates and Place of Hearing:
NURSING HOMES AWARD WAGE RATES AND RELATIVITIES
TRANSLATION - NURSING HOMES AWARD The parties acknowledge that disputes may arise in respect to translation to the new classification structure in the Nursing Homes Award. To minimise the extent of disputation and to ensure that grievances are dealt with in a fair and reasonable manner, the parties are agreed on the following: 1. The consultative mechanism clause in the award will be utilised in the first instance to discuss and determine translations to the new structure. 2. Translation to the new structure will not involve a spill of positions. Existing employees will not be required to re-apply for their positions. 3. Translation to the new structure in each case will, unless exceptional circumstances exist, be based on translation to the same rate of pay or the next highest rate of pay. Translation will occur after the 2.5% State Wage Case Decision of 13 August 1991 has been applied to the existing classifications in the award. 4. The exceptional circumstances referred to in point 3 above may exist where an employee's skills, duties and responsibilities are clearly different from those specified in the classification standard attached to the employees proposed classification level and rate of pay. In these circumstances the following grievance procedure shall be followed.
5. The parties agree to negotiate on all training matters relating to the restructuring process including job redesign, induction training, modular training and union steward training. 6. This agreement on translation shall expire after six months from the date of the making of the new award. Nothing shall prevent an employee after this date from seeking reclassification based on the classification standards contained in the new salary structure. Employees may seek promotion at any stage before or after translation and before or after the expiry of this agreement. The parties to this agreement are the Health Services Union of Australia, Tasmania No. 1 Branch and the Tasmanian Confederation of Industries. 1 T.Nos. 3478 & 3512 of 1991
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