TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s29(1) application for a hearing
Health Services Union, Tasmanian No. 1 Branch
(T13879 of 2012)
Minister Administering the State Service Act 2000/Department of Health and Human Services
COMMISSIONER JP MCALPINE
HOBART, 15 May 2012
Industrial dispute – demarcation - consultation - public interest – jurisdiction - application dismissed
REASONS FOR DECISION
 On 24 January 2012 the Health Service Union, Tasmanian No.1 Branch (HSU), being the applicant, applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000/Department of Health and Human Services (the Minister) arising from the voluntary redeployment of four Extended Care Assistants (ECAs) to positions as Assistants in Nursing (AINs) on completion of a training program. The four positions are part of a trial of the proposed AIN classification at the newly established Older Persons Unit (OPU) located at the Royal Hobart Hospital. This trial is one of a number of trials of the AIN classification throughout the State.
 The applicant listed seven issues contributing to the dispute and sought an order:
“That the current proposed trial of AINs at the OPU be discontinued and ECSs, formerly employed at the Peacock 2 unit, be transferred to perform the same or similar functions at the proposed OPU.”
 A hearing was convened for 7 February 2012 at which Ms S Katsin sought leave to intervene on behalf of the Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (the CPSU), in support of the applicant. Ms N Ellis sought leave to intervene on behalf of the Australian Nursing Federation, Tasmanian Branch (ANF), in support of the Minister. Although both requests were opposed, leave was granted to both parties to intervene. Subsequently the substantive matter was heard on 6 March 2012.
 In December 2010 the Minister, in conjunction with the ANF, sought to have a heads of agreement approved pursuant to s55 of the Act allowing for a series of trials to evaluate the proposed AIN classification. The application, T13746 of 2010, was approved allowing for the aforementioned trials to proceed. The Nurses and Midwives Heads of Agreement 2010 (NMHoA) applies in respect of employees covered by the Nurses (Tasmanian Public Sector) Award 2005 (the Nurses Award) and is to remain in force until a replacement agreement is registered with this Commission. The trials were predicated on proposed AIN positions being in addition to existing complements.
 As a result of the current state of finances faced by the State Government, budget reviews have been conducted across all public sector departments. Following the review of the Department of Health and Human Services (DHHS) budget, a program to rationalise the care of acute and sub-acute patients was developed. The outcome was that a new acute care Older Person’s Unit (OPU) would be established at the Royal Hobart Hospital Campus and the sub-acute Transitional Care Unit (TCU) at the Repatriation Centre, known as Peacock 2, was closed. The closure of Peacock 2 meant that staff, now surplus to immediate requirements, had to be managed in accordance with Ministerial Direction No.25 (MD25) - State Service Vacancy Control Process. As it transpired all the nurses, and most support staff, from the Peacock 2, were relocated to the OPU. However the DHHS deemed that the ECAs would not be required in the OPU, it being an acute care unit.
 Of the eight ECAs surplus to requirements at Peacock 2, four were redeployed in other areas as ECAs. The four remaining employees were offered the options of possible redeployment in accordance with MD25, redundancy, or to take up an opportunity to retrain as AINs and to participate in the impending trial at the OPU. All four employees volunteered to be retrained as AINs.
 Mr Double for the Minister noted that there was no issue raised over the closure of Peacock 2 by the applicant. He said it was accepted that the closure and subsequent redeployment of employees was as a consequence of the restructuring. He asserted that although there were ECA positions available at Peacock 3 and other units, there were not enough to absorb all the ECAs freed up from the Peacock 2 closure. This statement was not challenged.
 Mr Eddington for the applicant objected to the Minister deeming the aforementioned employees surplus to requirements with the purpose, in his view, of retraining them and subsequently reclassifying them as AINs. Ms Katsin, representing the CPSU, argued in support of the applicant.
 Mr Eddington argued that the AIN trials threatened the employment of current ECA. He cited exhibit A04, a letter from Mr Double:
“I want to provide an explicit assurance that no current employee would be reclassified as an assistant in nursing. The introduction of the role is aimed at new employees.”
 He said that, contrary to Mr Double’s undertaking, DHHS was about to reclassify the four employees in question as AINs by giving them the opportunity to undertake training. With reference to exhibit A05 he cites Mr Double again:
“Any redeployment will be in accordance with ministerial direction 25 and will be managed on a case by case basis.
I understand that there may be opportunities for employees affected by this change to participate in an assistant in nursing trial on a voluntary basis.
An opportunity has been negotiated with the Polytechnic to provide an intensive twelve day course qualifying individuals in the certificate three. This training is due to commence on the 30th of January, 2012 while employees continue to be employed and paid as extended care assistants. The employees will be rostered to attend the course in work time.”
 Mr Eddington asserted the employees had the skills to undertake the duties required of AINs with minimal training and should be redeployed as ECAs to the OPU. He said further:
“…that the move to make a group of employees surplus to requirements and potentially redundant only to move them onto a separate award does not satisfy the public interest criteria.”
 He argued that although MNHoA specifically ensures that there would be no replacement workforce, that is exactly what the move to reclassify the ECAs was. Further he argued that it would be impossible to introduce a new classification without affecting the employment of those already employed.
 Mr Baker for the Minister agreed with the proposition that, regardless of the availability of trainee AIN positions, the ECA positions at Peacock 2 no longer existed. Further, that there were a number of vacancies for AINs to participate in the trials, other candidates being 2nd Year nursing students.
 The applicant asserted that the DHHS was bound by the Health and Human Services (Tasmanian State Service) Award (the HHS Award). Part XII, clause 1 of this award states that the employer must consult with employees affected by any changes, which it failed to do, Mr Eddington said.
 Mr Double asserted extensive consultation took place with employees and the unions involved around the new care models and the redeployment of employees. He cited a number of letters, emails and other communications by way of exhibits R2, R3, R4, R5, R6, R7, R8, R9, R10, R11, R12, R13, R14, R15, R16, R17, R18, R19, R20, R21, R22, R23, R24, and R25.
 The exhibits illustrate communications between the DHHS and HSU, with employee groups, with individuals and, on a number of occasions, clarification through Frequently Asked Question memoranda.
 Mr Eddington asserted that the DHHS failed to comply with Commissioner’s Direction No.1 (CD1) with respect to advertising the AIN positions and selecting on merit before making appointments to the role.
 Mr Jacobson for the applicant argued that the employees in question are not aware that they would have to compete for the AIN jobs in the open market, should the trials be successful.
 With respect to CD1, Mr Double said that should the trials be successful the permanent positions on offer would be advertised according to the requirements of CD1. He also said that all the participants in the trial are aware that their tenure is only for the duration of the trial. However he undertook to confirm with each of the four employees in question their understanding of their tenure. The AIN role in the trial is a fixed term appointment of nine months.
 Mr Eddington argued that, according to the NMHoA, the AIN trial should have been completed, but it had not yet started. He asserted that it was clear that an expansion of the AIN classification was clearly planned beyond the trial. He also argued that the AIN trial was to be done in a time of expansion in the DHHS, not when budget cuts were being imposed.
 Ms Price for the Minister asserted that a number of factors delayed the start of the trials across the state, but that now the Department was in a position to proceed.
 Ms Ellis for the ANF confirmed that no existing employees at any of the trial sites would be affected by trials in that all AIN positions were in addition to the existing complement.
 Ms Ellis explained that a number of facilities, acute care, sub-acute care and dementia services had been rationalised to affect a better service. She said ten beds from Peacock 2 had been relocated to the Roy Fagan dementia unit, ten other beds transferred to the Royal Hobart campus, while other acute beds were being closed elsewhere, giving the OPU a facility for twenty two beds. She said the movements were not direct swaps from Peacock 2 to the OPU. She further explained that the reference to “beds” was not a physical bed, but the facility to care for that number of patients.
 The argument was put by the Minister that the staffing requirements for the OPU were different from those of Peacock 2 because of the nature of the patients. Ms Ellis gave an overview of the criteria for admitting patients to Peacock 2 where the skills of the ECAs were utilised:
“…the patient will be over 18, be medically stable and not an acute patient. Benefit from allied health interventions for functional maintenance and have a care plan which involves a discharge plan for either home, supported accommodation, a permanent residential aged care facility for disability service accommodation. Very clearly in this criteria for TCU is an exclusion criteria. Ineligible patients are those who require extensive interventions or diagnostic tests and/or other specialised services, who have an infection or infections that require specific nursing interventions that would prevent participation in group activities, who have an acute or sub-acute psychiatric condition who require specialised nursing intervention or rehab care and with extreme behaviours of concern, such as violent behaviours.”
 In summary, acute care patients who present at the OPU do so from either the Assessment and Planning Unit or the Emergency Department of a Hospital. Their condition is not stable or well defined, they may show psychiatric conditions. Their condition may require access to a multi-discipline medical team. These patients do not gain benefit from Diversional Therapies as provided by ECAs. In contrast to the OPU, the medical condition of patients reporting to Peacock 2 would be known and well understood. Mr Double said it is estimated that the OPU will have around five admissions per day while at Peacock 2 there are around two per week. The length of stay for an OPU patient is expected to be up to seven days whereas at Peacock 2 the stay was around thirty days. He said there is clearly a different care requirement in both facilities.
 Mr Eddington made the comment:
“I think in trying to establish this distinction between acute and sub-acute perhaps is just taking us away from what the real question is and that is why do these people need to be classified as AINs, what is the difference as an AIN as opposed to an ECA.”
 Further he argued that the fact that nurses and the hospital assistants were transferred from Peacock 2 to the OPU shows the similarity of function and the requirement for ECA participation.
 Mr Double argued that the position put by the applicant which purports ECAs have the required skills to work at the OPU was incorrect.
 He argued that the diversional therapy aspect to the ECA’s role was not required at the OPU, given the acute nature of the patients. He said that although there may be some aspects of the AIN’s role which overlap with the ECA’s suite of tasks the OPU requires staff with higher qualifications, such as the Certificate III in Health Services Assistance HLT32507 (Acute Care) or completion of the 2nd year of the degree of Bachelor of Nursing. To this end DHHS sought and was given endorsement by the State Service Commissioner to incorporate the qualification in the SoD.
 Ms Price outlined the difference in roles between the AINs and the ECAs. She said the ECAs’ primary duties are to design, implement and evaluate diversional therapy programs and to assist with the daily living needs of patients. The patients with whom the ECAs deal are categorised as sub-acute. Sub-acute is defined earlier. Diversional therapy was described as a method of maintaining patients’ interest in such things as games, music, exercise, art and so forth. For diversional therapy to be of value, the patient needs to be medically stable and sufficiently cognitive to appreciate the activity. Daily living needs were described as grooming, feeding, toileting and the like; in other words, personal needs.
 She said AINs on the other hand are utilised to deliver a level of nursing where acute care is required. The AIN would follow an agreed nursing plan for each patient.
 Mr Double presented SoDs for AINs in other states. He asserted the AIN classification was well recognised as part of the nursing care team across the country. He said there is also an AIN classification in the Federal Nurses Award which states at Schedule B – Classification Definitions:
“B.1 Nursing Assistant
Nursing Assistant means an employee, other than one registered pursuant to the provisions of the State of Territory Nurses Registration Board or one who is in training for the purpose of such registration, who is under direct control and supervision of a Registered or Enrolled Nurse and whose employment solely to assist an RN or EN in the provision of nursing care to persons.”
 Mr Eddington argued that employees in Tasmania under the federal system are not employed as AINs but ECAs. He offered no verification of this statement.
 Mr Double pointed out the different qualification requirements between the AIN and the ECA. He said that the DHHS had sought and was granted the inclusion of specific qualifications in the AIN SoD by the Acting State Service Commissioner:
“I determine that the following are essential requirements for employment to perform the duties of Assistant in Nursing, Tasmanian Nurses and Midwifes, Heads of Agreement 2010,
• Certificate III in Health Services Assistance HLT32507 (Acute Care); or
• Is currently an undergraduate Bachelor of Nursing student who has completed a 2nd year clinical practice placement; or
• An enrolled nursing student who has completed their 1st clinical practice placement.”
 He said on the other hand the SoD for ECAs indicates that no essential qualifications are required.
 Mr Eddington argued that the ECAs in question would not be covered by an award as the classification of AIN is not defined in an award. He argued that it was contrary to public interest to have a class of employees not prescribed in an award. He said that the applicant union was not party to the NMHoA within which the AIN classification lies, yet the employees in question would be subject to it. He said that it would be more comforting for these employees to have their classification documented in an award.
 Further he asserted s7 of the NMHoA shows the intent of the parties was to have the terms and conditions of AINs incorporated into the Award by the end of February 2011, which did not happen. He said that it was not in the public interest to elevate a heads of agreement to the role of an award document.
 Mr Double submitted a series of SoDs for AINs from other states. He also asserted that in the federal system, which has been subjected to Fair Work Australia assessment there is an AIN classification.
 Mr Eddington submitted a number of Statements of Duty (SoD). He highlighted the tasks common across the various SoDs as well as the commonality with tasks required of the AIN. He asserted that in the development of the modern awards, Fair Work Act at s141(G) requires the avoidance of overlap between awards. He cited examples of Fair Work Australia decisions which promoted the avoidance of award overlap.
 The witness Maree Shepherd had been an ECA from October 2006 to February 2007. She asserted that, having perused the SoD for AINs, that she could have carried out each of the tasks required of an AIN in her previous capacity as an ECA. Under cross examination she conceded she had only worked in a sub-acute environment and that she had not worked or trained as an AIN.
 Mr Double addressed the batch of SoDs provided by the applicant. He said there may be a case for rationalising the number of categories depicted since there was demonstrable overlap in their duties. He made the point that these various categories, although common in some aspects of their role, each had a particular emphasis. It followed that there were a number of different pay levels within the examples.
 Mr Double posed the question as to why the department, when it has to find $100 million this year and $150 million in subsequent years from its budget, would pay a new classification at a higher rate if the required skills existed in another classification at a lower wage rate.
 This application has a number of facets which must be addressed.
 I concur with Mr Jacobson’s observation that the “model of care” for the provision of medical services is a “medical issue.” It follows that the skill set required to provide such a model of care is also a medical issue and should be prescribed by clinicians. DHHS has seen fit to differentiate between the skills required to provide for those patients categorised as “acute” and those patients categorised as “sub-acute.”
 Both Mr Double and Ms Ellis depicted, in detail, the contrast between acute and sub-acute patients, their needs and their management. The evidence was unchallenged. However Mr Eddington’s response to this was:
“I think in trying to establish this distinction between acute and sub-acute perhaps is just taking us away from what the real question ….”
 In my view the point has been missed by the applicant. The issue is indeed the care of two categories of patient with very different needs and how that care is provided.
 The AIN position is a legitimate role recognised across the country. The qualification requirements, as noted above, have been set, as the Acting State Service Commissioner notes in his decision:
“…I determine that the following are essential requirements for employment to perform the duties of Assistant in Nursing…”
 He continues by defining those qualifications. It follows that unless a person has the specified qualifications, that person cannot perform the duties of an AIN.
 Despite some tasks common to the duties of both AINs and ECAs they are two distinct roles. Much was made of both roles working under the direction of either an enrolled or registered nurse. It is quite clear from the SoDs that the direction given by the nurse is for two distinctly different activities. The AIN is to provide nursing care while the ECA is to design and implement diversional therapy programs. Given that diversional therapy is not appropriate for acute patients, a proposition which was not challenged, it is understandable that the DHHS sought to up-skill the four volunteers to be able meet the qualification requirements of the AIN role and therefore to work in the acute care OPU.
 Mr Eddington also raised the issue that AINs as well as ECAs participate in the personal care aspect patient care. He illustrated through the batch of SoDs that there were a number of classifications of employees who had a similar task list as part of their role. It is evident that a deal of overlap needs to exist when dealing with patients. All patients have personal care requirements that are common, however their medical condition whether it be physical, mental, aged-based or whatever would require that the carer has particular skills beyond grooming and toileting.
 Mr Eddington advocated that the ECAs with some extra training could function in the OPU in their substantive role. On the one hand it has been shown that employees from an ECA background can be trained up and become qualified to undertake the role of AINs. However, once qualified, they are equipped to undertake the nursing aspect of the AIN for which there is a legitimate need and which is beyond the scope of expertise required of an ECA. The ECA role provides specific non nursing care which is also a vital and legitimate role. I do not accept the applicant’s assertion that those qualified to undertake the role of AIN could perform that role and still be classified as ECAs. They are two distinct roles with distinct functions.
 Item (4) of the application asserts that ECAs employed at Peacock 2 have the skills, knowledge and experience which can be directly used at the OPU without the need for reclassification to AINs. For the foregoing reasons I reject this assertion.
 I turn to the assertion by the applicant which was made throughout the hearing that the Minister had deemed employees surplus to requirement with the wilful intent of redeploying them at a different classification. The closure of Peacock 2 resulted in some employees becoming surplus to immediate requirements. It appears every effort was made to redeploy the ECAs into like roles. After the immediate vacancies had been filled four ECAs remained without a position.
 The four employees were offered the opportunity to participate in training. Acceptance of the offer, it was stated, was completely voluntary. The DHHS had no way of knowing what the decision of these four employees would be. It defies logic that employees would be deemed surplus to requirements so that they could be employed in a different role, on the off chance that they accepted the offer. Further to this the other applicants for the AIN roles came from completely different areas to the four in question. The applicant has failed to substantiate its assertion. In my view the DHHS is to be commended for providing four people, who may well have become redundant, with the potential to have an ongoing career.
 Following on from this argument, item (7) of the application makes reference to:
“Making a group of employees surplus to requirements whilst employing a replacement group to do work of the same or extensively similar nature is not in the public interest.”
 Evidence has shown that the employer went to considerable lengths to redeploy the employees from Peacock2. The “replacement group” referred to is simply inaccurate. The AIN trials had been planned long before Peacock 2 closed. Each AIN position is a new position, not a replacement for any other employee. As detailed above the work required of the AINs is not “extensively similar in nature” to the work of ECAs in Peacock 2. There is no offence of the public interest.
 I turn now to the assertion that DHHS did not adhere to the consultation provisions of the HHS Award. Mr Double presented a number of examples of the communications with the union and with employees going back to July of 2011. These communications show that the DHHS consulted widely and regularly with the affected parties throughout the entire process of the development of the OPU, the closure of Peacock 2 and the redeployment of employees.
 The application asserts at item (5) that “…the Health and Human Services (Tasmanian State Service) Award…provides for detailed consultation with employees affected. This did not happen.” Given the extent of consultation already demonstrated, I find it difficult to accept that four employees were offered training, a new role and the opportunity to participate in a trial yet had not been involved in consultations. I note that there was no evidence adduced from any of the four employees in question to support the applicant’s argument. Documentary evidence alone would deem that there is no validity to the applicant’s assertion that the employer failed to comply with Part XII Clause I of the HHS Award.
 I turn to the assertion by the applicant that DHHS did not adhere to CD1 in the appointment of the four employees as AINs. The appointment of the AINs according to Mr Double is on a fixed term basis for 9 months. CD1 Clause 5, sub-clause (8) allows for the Head of Agency to seek expressions of interest from within the Agency or from other Agencies if he wishes for this category of employee. In my view the DHHS complied with CD1 in making these appointments.
 At item (6) of the application the applicant seeks to have the status quo maintained because there is an unresolved dispute. The applicant makes reference to the intent of the DHHS being to persevere with the training of the four employees. It can only be read from this that the applicant’s wish is to have the training abandoned. If that is the case, it has been stated that there are no ECA vacancies at the moment, the only avenue open to the four employees would be to accept redundancy.
 The applicant, from evidence, accepted the closure of Peacock 2 with all that that entailed with respect to those employees affected. Four employees, of their own volition, accepted an alternative to redundancy. Any status quo in existence with respect to these four employees ceased with the closure of Peacock 2. I do not accede to the applicant’s request.
 The applicant argued that it was not in the public interest to have a classification such as AIN in operation which was not covered by an award. At the onset of the preparation for the AIN trials the NMHoA was developed at Schedule 4 of which the AIN terms and conditions are laid out specifically for the trials. In my view the AIN terms and conditions are sufficiently safeguarded in the NMHoA and should the trials be a success will be incorporated in the Nurses Award.
 I turn to the order sought by the applicant:
“…that the current proposed trial of AINs at the OPU be discontinued and ECAs, formerly employed at the Peacock 2 unit, be transferred to perform the same or similar functions at the proposed OPU.”
 The applicant seeks that this Commission order transfers and appointments. Regardless of how this matter is decided, the Act at Part I s3(1) states:
“industrial matter means any matter pertaining to the relations of employers…
but does not include a matter relating to –
(i) appointments, or promotions, other than in respect of the qualifications required for advancement;
The applicant’s request is beyond the jurisdiction of this Commission and cannot be accommodated.
 The applicant has had a long running campaign against the introduction of the AIN classification as is evidenced in the communication Exhibit R31. The AIN trials have been planned a considerable time before the four employees were offered training. With regard to the discontinuance of the AIN trials, the applicant has given no valid argument as to why the trials should cease. With or without the involvement of the four employees, there is no reason for this Commission to interfere in anyway with the progress of the trials.
 It has been acknowledged that the model of care is the responsibility of the clinicians. It follows that the facilities to deliver such a model are staffed in accordance to clinical needs. There is no industrial impediment to the Minister providing the staffing which achieves the range of skills required to operate the OPU effectively.
 The application is dismissed.
J P McAlpine
Mr J Eddington and Mr T Jacobson for the Health and Community Services Union Tasmania No. 1 Branch
Mr T Kleyn for the Minister administering the State Service Act 2000
Mr M Double and Ms S Price for the Department of Health and Human Services
Ms S Katsin intervening for the Community and Public Sector (SPSFT) Inc.
Ms N Ellis and Ms Stansilaus Large intervening for the Australian Nursing Federation, Tasmanian Branch
Date and Place of Hearing: