TA41 and T1222
IN THE TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
This application, made by the Hospital Employees Federation of Australia Tasmania No. 1 Branch, was referred to me after being considered by an Anomalies conference (application TA41 of 1988).
The decision handed down on 24 June 1988 endorsed a work value review of the award, so far as it relates to Dental Assistants employed under the Dentists Award.
In his reference to me, the President of the Commission stated, in part, "having heard all the parties I am satisfied that an arguable case exists, and I therefore refer the matter to you for hearing and determination".
Other aspects of the claim were dealt with under the relevant Principle.
At the request of the HEF1, inspections were undertaken on 13 September 1988.
Mr. P. A. Imlach, Secretary of the HEF1, was the chief advocate for Dental Assistants in this matter.
He commenced his substantive submission on 20 September 1988 and examined 3 witnesses.
A précis of the claim is as follows:-
(a) Junior Dental Assistants;
(b) Adult Dental Assistants who do not hold a certificate of proficiency issued by the Dental Assistants' Association of Australia; and
(c) Adult Dental Assistants who hold a certificate of proficiency issued by the Dental Assistants' Association of Australia.
No party to the hearing was able to advise me when the Dental Assistants' rates of pay were last involved in a work value case.
I gained the impression from the submissions that it was many years ago.
The Wage Fixation Principles state:-
"(c) The time from which work value changes should be measured is the last work value adjustment in the award under consideration but in no case earlier than 1 January 1978. Care should be exercised to ensure that changes which were taken into account in any previous work value adjustments are not included in any work evaluation under this principle."
Therefore, under this Principle, I am not prepared to go back prior to 1 January 1978.
The parties agreed that the following duties were indicative of work carried out by Dental Assistants:-
Mixing of impression materials and pouring up of models and making of mouth guards (including special tray formations).
Pre and post operative instructions (1Manual Pgs. 232 - ).
Hepatitis "B" and AIDS disinfection - procedures ("barrier technique").
Chairside assistance - mixing liner cements and all filling materials (quick hardening curing etc.) - white light -
Having gained knowledge of use and maintenance of instruments, anticipating and passing them during treatment.
Assisting with oral procedures - sucking, blowing, removing debris, holding items in place, washing and drying of cavities, lip and cheek (*Manual P.96).
Handling mercury and other hazardous materials and items e.g. syringes, chloroform and ether, peroxide.
Assisting at the hospital theatre (dentist, anaesthetist and assistant) general anaesthetics - chairside. Is also done in the surgery.
Sterilization (*Manual P.131).
Upgrading of training and qualifications - clinical knowledge, qualifications and skills (e.g. root canal therapy, tooth capping including crowns and implants).
Oral hygiene instructions to the patient (*Manual Pgs. 181 - 188).
At least 15 minutes before first appointment set up the surgery (two) and turn on the equipment. (Hot water, sterilizer (solution) the dental unit, grease and oil hand pieces. Check start appointments and final appointments +15 minutes + 15 minutes.
Prepare for the patients - check and put out appropriate instruments and materials.
Develop X-Ray photos process (*Manual Pgs. 210 - 226).
After each procedure or operation clean up, sterilize and replace and prepare.
After the last appointment revise the morning procedures.
Charting and treatment cards (*Manual P.89 and Pgs. 121 - 189).
An employee who carries out mainly clerical duties may also have to attend in surgery as required during sickness, annual leave etc.
Telephone calls (diagnosing, difficulties, enquiries).
Arranging appointments (planning of treatment times).
All filing (patients' records, X-Rays, Re-calls).
Employers' personal banking and payment of accounts.
Typing of correspondence. Photocopying. Operation of computer.
Order stock and negotiate with representatives - stock book, order book.
Monthly bank reconciliations.
Management of service fees.
Arrange and supervise maintenance and repairs (incl. Interstate ordering and repairs). New equipment.
Maintain the day book (patients and fees).
Balance fees each day (various methods including computer and ledgers).
Issue of receipts (transfer to ledgers - computer).
Banking (standard procedures - balance against receipts).
Monthly balance of all books (some do not do this).
Preparation and payment of all salaries (including dentists) and adjustments occurring (mainly cash) (some do not do this).
Monthly taxation payments and group certificates.
Preparation and despatch of payments (surgery expenses etc.) after checking statements against invoices.
Collection, processing of mail and despatch (stamps etc.)
Send out monthly accounts and check and follow up including debt collection.
The parties impressed on the Commission that Dental Assistants were now working at a higher level than they were in the past.
Mr. Imlach also highlighted the increased skills and responsibilities required to -
He also spent some time during the course of his submission detailing the upgrading of training and qualifications as he was seeking higher rates of pay for those who hold a current certificate of proficiency issued by the Dental Assistants' Association of Australia.
Apart from the training given to Dental Assistants on the job, the only formal course available to them is via the Dental Assistants' Association of Australia training course.
To undertake this course, a person must be a member of the Dental' Assistants Association of Australia and be employed in a dental practice and have at least 3 months' experience as a Dental Chairside Assistant.
The course is run with the full support of the dentists' profession and qualified Dentists give lectures during the course. They also set and correct the examination papers.
The other main features of the training course which were upgraded in 1984 are:-
In an attempt to give me an example of the standards required, Mr. Imlach stated that in 1987, 24 students took the course and sat for the examination. Six passed, 3 took a supplementary examination and passed and a further 3 had the examinations reconsidered and re-assessed and were passed i.e. 12 out of the 24 eventually passed.
FINDING ON INCREASED WORK VALUE:
Mr. Imlach submitted that there was sufficient change shown in the evidence and on inspections to satisfy the Work Value Principle.
This point of view was not disputed by Mr. Abey, representing the TCI.
He submitted that employers recognised there had been changes in the industry which increased the work value of Dental Assistants.
On the evidence presented, I am satisfied that Dental Assistants are working at a higher level than they were prior to the period under review.
This has been further highlighted by the changes in the formal training course and the work requirements generally.
This being the case, I am now left to decide the form and quantum of the increase for this classification of employee. This aspect was the main area of disagreement between the TCI and the HEF1.
It was Mr. Abey's submission that the structure of the award as it relates to junior and adult Dental Assistants should remain unaltered.
He did, however, indicate to the Commission that an increase of 10% may be in order.
He tendered an exhibit showing the affect of a 10% increase being as follows:-
"Adult rate at age 20 after 9 months' experience ...316.70
After 1 year's additional experience.......321.65
After 2 years' additional experience.......326.60
After 3 years' additional experience.......331.55
After 4 years' additional experience.......336.50"
On the other hand, Mr Imlach argued that the structure of the award should be varied to:-
(a) provide separate rates of pay for those persons who hold a current certificate of proficiency issued by the DAA;
(b) increase the career scale by one year; and
(c) delete from the award the current certificate allowance of $6.50.
He also sought to increase the wage rates for juniors by increasing the percentage of the adult rates.
His proposal was as follows:-
"Dental Assistant and/or Receptionist
Class I (An employee who does not hold a current certificate of proficiency issued by the Dental Assistants' Association of Australia).
Class II (An employee who holds a current certificate of proficiency issued by the Dental Assistants' Association of Australia).
The minimum rate of wages that may be paid to junior assistants shall be as follows:-
I am now left to arbitrate between two conflicting submissions.
Having considered all the evidence surrounding this aspect of the claim, I have arrived at the conclusion that:-
Whilst noting Mr. Abey's submission that the course was -
(a) good and desirable but not essential; and
(b) that a person could be a competent Dental Assistant without doing the course,
nevertheless, I am of the view that it is possible for a person who has successfully completed the course to possess the knowledge and skill required to be a proficient Dental Assistant even though they may not be called upon to perform all they have learned. They could also take up employment in any dental practice, with only minor alterations to the method of working to suit the requirements and needs of the employer.
In the case of those employees who do not complete the course, and are solely trained within a specific dental practice, it could be said that they only perform the duties to a level required by the individual dentist and may only be trained to that level.
Employers in the industry do encourage employees to do the course and this was borne out in the evidence.
An employee, having successfully completed the course, should be recognised and receive an appropriate remuneration and a special classification within the award.
As stated earlier, persons undertaking this course must be members of the Dental Assistants' Association of Australia and given that fact, I think it only proper that the award recognise -
(a) membership of the Association; and
(b) the certificate of proficiency issued by them to Dental Assistants who successfully complete the course.
It is my decision that the abovementioned criteria be a prerequisite qualification to attract the rates of pay designated to the new classification.
I am satisfied that the over-riding objective of the Association is to look after and maintain Dental Assistants' "professional" interests as opposed to "industrial", which, in recent times has been cared for by the HEF1.
I gleaned from the evidence that some people apply for membership of the Association for the sole purpose of undertaking the course and having completed the course relinquish their membership. I am of the view that employees should be encouraged, at all times, to further their knowledge and skills within their chosen career path and, in the case of Dental Assistants, this can be best achieved through their "professional" Association.
There should be a single wage rate for the various age groups of employees under 20 years of age.
In arriving at this decision, I have also taken into account that some junior employees may complete the course prior to reaching 20 years of age and will not receive the full benefit (in monetary terms) until they reach the first year of adult service.
It is my decision that the award be varied by deleting the existing structure and rates of pay for Dental Assistants and including therein the following:-
"DIVISION C - DENTAL ASSISTANTS
The minimum rates of wages that may be paid by employers to adult Dental Assistants (i.e. employees over 20 years of age) shall be the undermentioned rates per week:-
Provided that at 20 years of age an employee shall be classified under (a) or (b) of this Division, whichever is appropriate."
The following matters were agreed between the parties and as they do not violate the Wage Fixation Principles, they receive my support and the award will be varied in the manner sought.
The agreed matters fall under the following headings:-
It is now my intention to deal with the other claims that have been left to me for arbitration.
1. Laundry Costs
The award currently contains a prescription in Clause 12 - General Conditions which reads as follows:-
"(d) Each employee shall be provided by the employer each year with the cost of suitable uniforms, gowns or overalls and each week with laundry costs thereof."
The real questions not answered in the award are:-
It was Mr. Imlach's submission that for laundry cost, employees should be provided with an amount of $5.00 per week.
He did not address the other question, i.e. the cost associated with suitable uniforms.
An alternative submission was presented by Mr. Abey suggesting that employees should provide and launder their own uniforms and be given an allowance of $5.00 per week, i.e. $2.50 for uniforms and $2.50 for laundering.
It seems to me that the original drafters of the award intended two things to be carried out by the employer:-
The evidence indicated that a number of employers do provide uniforms and, if that does take place, I am of the view the employer should not have to pay an additional cost for the uniforms and any award prescription should reflect this.
In dealing with this matter, I am going to make an interim decision because insufficient evidence was put to me during the course of the hearing.
I will leave it open to either party to put forward submissions at a later date (via a separate application) in a more complete form than they did on this occasion.
As an interim arrangement, I am going to amend the current award provision to read as follows:-
"Sufficient and serviceable uniforms shall be provided free of cost to all employees required to wear uniforms, or if employees provide their own uniforms they shall be paid an allowance of $4.00 per week. Uniforms shall be laundered as and when necessary at the expense of the employer, or if employees launder their own uniforms they shall be paid an allowance of $3.00 per week."
This will clarify any ambiguity that may exist at present and I decide accordingly.
2. Hours of Work and Saturday Work
The award currently provides for "ordinary hours" to be worked in Hobart between certain hours Monday to Friday and elsewhere between Monday and 12 noon on Saturday.
The applicant sought to do three things:-
Mr. Abey opposed the first and second aspect of the claim, however, agreed that as the award already gave a minimum hiring period of 4 hours to casuals, for consistency sake, it should also apply to part-time employees for whom the parties agreed to insert new provisions.
I am not prepared to vary the span of hours currently contained in the award because:-
In arriving at this conclusion, it therefore follows that I am not prepared to delete Clause 18 - Saturday Work as claimed by the applicant.
The claim was that Clause 16 - Overtime, subclause (c) be amended to read as follows:-
"An employee who is recalled to work overtime (that is, outside the hours the employee usually works) after a period of one hour from the time fixed for ceasing work, whether or not he has been notified before ceasing work, shall receive a minimum payment as for 4 hours worked."
The underlined parts of this clause are the additions sought by the applicant.
Whilst I support the clause being varied to qualify the word "overtime", nevertheless, I have not been convinced at this time that employees should receive a minimum payment of 4 hours as opposed to 2 hours for a "recall" to work.
The only argument put to me by the applicant was that he believed it to be a State standard, but I was not shown any evidence of this, nor was this statement elaborated upon.
Therefore, I decline to vary the minimum recall aspect of the claim.
4. Casual Employees
The award contains a provision for the minimum rate of wages to be paid to casuals, however, Clause 21 - Terms of Employment excludes casuals.
The applicant sought to include in this clause a new subclause regulating the employment of casuals and this to read as follows:-
"In the case of casual employees (as defined) written advice as to the time, date(s) and number of hours for each period of employment shall be provided to the employee. Employment shall be terminated (other than in the terms of the written advice mentioned herein) by one hour's notice in writing on either side or by the payment or forfeiture of one hour's wages as the case may be; Provided that this shall not affect the right of the employer to dismiss an employee without notice for neglect of duty or misconduct in which case wages shall be paid up to the time of dismissal only."
In the main, this inclusion in the award was sought to draw a distinction between part-time employees and casuals.
This was opposed by Mr. Abey.
In his opinion, the new prescription -
I have sympathy with the claim and I agree with the sentiments expressed by the President of the Commission when handing down his decision arising out of application T1604 of 1988 where he stated:-
"Any employer of staff is obliged by law to keep proper records. Employment is a contract and parties to that contract have both common law and statutory rights. It is simply not to the point to suggest that an employee knows his classification and his terms and conditions of employment. These should always be set out in a duly executed instrument of appointment establishing the employment contract. Any alteration to that contract should also be documented in writing."
I believe casual employees are entitled to receive something in writing from their employer detailing the date(s) and starting and finishing times for each period of employment.
Casual employees should also be able to ascertain from their award how and when their employment can be terminated. This, I believe to be a fundamental part of the contract they are employed under.
They also have a basic right to know the terms of their employment and what better than stating it in the award.
These things should not be left until there is some dispute over one's rights and entitlements and then for employees to be told the award is silent on the issues.
For these reasons, I determine that the following provision be included in the award:-
"In the case of casual employees (as defined) the employer shall provide them with a written advice stating the date(s) and starting and finishing times for each period of employment. Employment shall be terminated (other than in the terms of the written advice mentioned herein) by one hour's notice in writing on either side or by the payment or forfeiture of one hour's wages as the case may be; Provided that this shall not affect the right of the employer to dismiss an employee without notice for neglect of duty or misconduct in which case wages shall be paid up to the time of dismissal only."
The final matter for my determination is whether or not a preference clause should be inserted in the award.
The preference sought was not for membership of a registered organisation within the meaning of the Industrial Relations Act 1984, but the dental assistants' Professional Association i.e. The Dental Assistants' Association of Australia (Tasmanian Branch).
The Act enables members of the Commission to deal with an industrial matter and it is defined as follows:-
"industrial matter" means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -
(a) a matter relating to -
(iv) the preferential employment or non-employment of a particular person or class of person who is or is not a member of an organisation or a class of persons who are or are not members of an organisation; and..."
The Act also defines "organisation" as meaning an organisation registered under Part V of the Act.
As the Dental Assistants' Association of Australia (Tasmanian Branch) is not an "organisation" for the purpose of the Act, I decline to include the preference sought by the HEF1.
The operative date of this decision shall be from the beginning of the first full pay period to commence on or after 26 October 1988.
An order giving effect to this decision is attached.
R. J. Watling
1 Dental Assistants' Manual