TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Health Services Union of Australia, Tasmania No. 1 Branch
(T12076 of 2005)

and

The Manor Nursing Home
(Umina Park Residential and Community Care Facility, Burnie)

Industrial dispute - alleged breach of the Nursing Homes Award - Order issued

REASONS FOR DECISION

[1] On 13 May 2005, the Health Services Union of Australia, Tasmania No. 1 Branch (the union), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with The Manor Nursing Home (Umina Park Residential and Community Care Facility, Burnie) (the respondent) arising out of an alleged breach of the Nursing Homes Award - classification Mrs Kossler.

[2] The President convened a hearing (Conciliation Conference) at the Supreme Court, Cameron Street, Launceston, Tasmania on Friday, 3 June 2005. Commissioner McAlpine convened a further hearing at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania, on Wednesday, 11 January 2006 at 10.30 am.

[3] It was the union's contention the Diversional Therapy Assistants at the Umina Park facility should have been graded as Level 4 of the Nursing Homes Award (the award), not Level 3 as they currently are. This contention partly arose because of the unique nature of the Umina Park operation. The respondent operates two other facilities where the relationship between the Diversional Therapy Assistants and the Diversional Therapy Coordinator, was allegedly more clearly defined.

[4] Mrs Kossler, apparently, first raised the issue of an alleged incorrect classification with her employer in 2002. Subsequently, discussions between the respondent, the union and the Tasmanian Chamber of Commerce and Industry Limited (TCCI) have been taking place since 2002, with no concrete outcome. In May 2005, the union applied for the matter to be brought before the Commission for arbitration.

[5] At the conciliation conference, held on the 3 June 2005, no resolution was forthcoming. It was recommended by the parties the Commission visit Umina Park to gain a better understanding of the situation before an arbitration hearing be held. The Commission conducted a site visit to Umina Park on 13 October 2005, to ascertain the nature of the duties performed by both the Diversional Therapy Assistants and the Diversional Therapy Coordinators.

[6] To develop a comparison the Commission also conducted site visits at the other facilities, Bishop Davies Court and The Manor Nursing Home. The Commission revisited the Umina Park facility to confirm it's understanding of the Diversional Therapy Assistant - Coordinator separation and the difference in this interface between Umina Park and the other two facilities.

[7] From the Commission's perspective it was evident that Bishop Davies Court and The Manor Nursing Home both function in the same way with respect to the provision of diversional therapy services. It was also clear that both function differently from the Umina Park facility.

[8] By way of clarification, there is a nomenclature inconsistency across the award, the various Exhibits and the verbal submissions with respect to Diversional Therapy Assistant and Diversional Therapy Coordinator. The Diversional Therapy Assistant is also referred to as the Extended Care Assistant - Activities Assistant and contentiously the Diversional Therapist. The Diversional Therapy Coordinator again is referred to both as the Coordinator and the Diversional Therapist.

List Of Those Who Gave Evidence For The Union

Margaret Tamsin Kossler
Lorise Gaye Evison
Maree Kentwell

List Of Those Who Gave Evidence For The Respondent

Judith Marion Sturzaker
Jennifer Joyce McCall

BACKGROUND

[9] The union asserted the Diversional Therapy Assistants at Umina Park should be classified at Level 4 and not Level 3 by nature of the tasks they undertook. Mr Vizard, for the union, cited Clause 7 of the award, which he argued was clear as to the distinction between the Levels 3 and 4 and that it confirmed it's view that the Diversional Therapy Assistants were wrongly classified at Level 3. The award states:

"Level 3

`Extended Care Assistant' means an employee that provides direct care to residents in accordance with guidelines predetermined by the employer and shall be subject to general supervision.

Indicative tasks that may be performed at the level include:

Provide quality care to residents;

Follow residents care plan;

Observations of residents needs;

Maintain relevant documentation.

Level 4

`Senior Extended Care Assistant' means an employee that provides direct care to residents in accordance with routines established by the employer, shall be subject to general supervision and shall use initiative and judgment.

Indicative tasks that may be performed at the level include:

Divisional therapy;
Supervision of Hostels."

[10] Indeed, the union asserted a person classified less than a Level 4 could not perform Diversional Therapy activities.

[11] In Exhibits A2 and A3 the union drew a comparison between the position descriptions of Extended Care Assistant and Extended Care Assistant - Activities Assistant:

Exhibit A2

"Position Description

Position: Extended Care Assistant

Role Description: ... responsible to provide competent personal care under the direction of the RN/EN in Charge.

...

Main Duties:

· Provides personal care to assist residents to maintain independence and dignity with respect to activities of daily living and lifestyle

· Assists with meal delivery and refreshments as required

· Records observations on relevant assessment charts and documents any observed exceptions to the care plan in the progress notes, and report same to the RN in/EN Charge

· Checks residents daily dietary requirements

· Attends to duties as allocated and or delegated by the RN in Charge, including general duties"

Exhibit A3

"Position Description

Position: Extended Care Assistant - Activities Assistant

Role Description: ... responsible to assist the Diversional Therapy Coordinator to provide a range of individual, group and community activities according to the residents individual assessed physical, social, cultural and spiritual needs and preferences.

...

Main Duties:

· Participate in the development, implementation and evaluation of resident care plans for leisure, interests and activities

· Document exceptions to the care plan in the progress notes and report same to the Diversional Therapist, Care Manager or delegate

· Participate in planning, implementation and evaluation of the activities program

· Assists the Diversional Therapist in the appropriate delegation and support for volunteers

· Participates in the follow up of Improvement Forms related to the activities program"

[12] It was asserted, however, the duties of the Diversional Therapy Assistants required them to take much more of a lead role than the position description portrayed.

[13] It was agreed by the witnesses for both parties, the asserted "involvement" of both Extended Care Assistants and Diversional Therapy Assistants was different, yet equally important. The Extended Care Assistants looked after the physical health and hygiene of the residents, whereas the Diversional Therapy Assistants looked after the sensory stimulation of the residents, their wellbeing.

[14] The Commission's attention was drawn to two Exhibits, A7 and A8 both management documents. The union asserted these documents confirmed the Diversional Therapy Assistant did not only "participate and contribute" but indeed, took a principal role in assessing new residents, monitoring their condition, noting changes, developing the diversional therapy aspects of the care plan and constructing divisional therapy programs. Exhibits A7 and A8 contradict Exhibit A3 with respect to the extent of the Diversional Therapy Assistants' responsibilities.

[15] Mr Vizard argued that the Diversional Therapy Assistants were indeed Divisional Therapists according to, in his view, a Diversional Therapy Association's publication entitled "What Is Diversional Therapy?". He cited the following from Exhibit A6:

"Diversional therapy is the facilitation and coordination of recreation and leisure activities for individuals ...

A diversional therapist plans designs, coordinates and implements leisure based activity programs ...

Each program is developed through consultation with individuals or groups ...

Each activity is tailored to the particular needs of each person, or group ..."

[16] The union asserted the extract from Exhibit A6 was in concert with the activities of the Diversional Therapy Assistants at Umina Park as illustrated in Exhibits A7 and A8.

[17] The union further asserted the Diversional Therapy Assistants prepared the monthly program of activities, other than the nominated religious services and bus trips, and subsequently implemented it. The union asserted the Coordinator only compiled the plan document from data given by the Diversional Therapy Assistants as illustrated in Exhibit A4, Newsletter showing Monthly Plan.

[18] It was also asserted the Diversional Therapy Assistants supervise volunteers. The respondent challenged this.

[19] The union asserted there was minimal supervision of the Diversional Therapy Assistants by the Coordinator, in as much as the Coordinator's time "on the floor" was observed to be limited to around 20 minutes, four or five times per month.

[20] Although witness evidence varied on the time the Coordinator spent "on the floor" it was evident this activity was not a major element in the workload of the Coordinator. It was conceded, the Diversional Therapy Assistants could interact with the Coordinator coming on and going off shift where direction and report back often took place.

[21] It was argued the Coordinator's role was administration in general, and more specifically the management of the day centre and the stewardship of the quality assurance of the diversional therapy service to the residents. The respondent did not contest this view.

[22] The union asserted the Diversional Therapy Care Plan was developed, managed and altered where appropriate by the Diversional Therapy Assistants without the intervention of the Coordinator. It was acknowledged by both parties, the coordinators did not amend diversional therapy care plans; only the Diversional Therapy Assistant who had prepared it could do that.

[23] The union cited Exhibit A7 - Leisure, Interest and Activities Program and Exhibit A8 - Employee Assessment as evidence the Diversional Therapy Assistants were expected to and did conduct initial interviews with new residents to establish a profile from which an individual plan could be developed. The documents also established the need for the Diversional Therapy Assistants to note changes in the resident's capabilities.

[24] It was alleged there have been times when the role of the Coordinator was not filled for a period of time, regardless the Diversional Therapy Assistants functioned as normal. The respondent did not contest the allegation.

[25] The respondent chose not to cross-examine those witnesses for the union, but rather sought clarification. It asserted its desire to minimize conflict, acknowledging the valuable work the Diversional Therapy Assistants did, and to rely on the evidence from its own witnesses.

[26] The respondent contested the Diversional Therapy Assistants were responsible for the development and delivery of the Diversional Therapy Care Plan and said this was the responsibility of the Coordinator.

[27] The respondent cited Exhibit R1 - Statement of Role/Responsibility and Exhibit A3 - Position Description Extended Care Assistant - Activities Assistant in support of its position that the Diversional Therapy Assistants input was limited to "assist" and "participate" in the various activities under question.

[28] There is no definition of Diversional Therapy or Diversional Therapists in the award.

[29] The respondent asserted the Coordinator was the nominated responsible person accountable to the accreditation agency for the delivery of the Diversional Therapy program. This was not contested. The respondent also asserted no change could be made to the diversional therapy care plan unless approved by the Coordinator. The union argued against this. The witnesses for both parties corroborated the union's position.

[30] It was not disputed that volunteers were selected, engaged and assigned by the Coordinator, but worked under the immediate influence of the Diversional Therapy Assistants. Nor was it disputed the Coordinator did have the final say in the overall monthly plan, but did not exercise the option often.

[31] Exhibit A10 is an extract from the translation document; when classifications were updated. It defines Therapy Assistants in years 1 and 2 to be translated to the new Level 2, while at years 3 and 4 they are translated to new Level 4. No explanation for this anomaly was educed.

[32] The respondent asserted Level 4 was a promotional position. There was no evidence presented in support of this assertion.

FINDINGS

[33] The function of the Diversional Therapy Assistant at Umina Park varies considerably from that of the same named position at Bishop Davies Court and The Manor Nursing Home. Exhibit A3 - Extended Care Assistant - Activities Assistant, and Exhibit R.1 - Statement of Role/Responsibility more accurately described the Diversional Therapy Assistant's role at Bishop Davies Court and the Manor rather than at Umina Park.

[34] The evidence from witnesses for both parties, and from Exhibit A8 - Staff Appraisal clearly shows the Diversional Therapy Assistant role at Umina Park is expected to fulfil much of the role the Coordinator executes in the other two facilities.

[35] I do not accept the union's argument that the award deems only those at Level 4 can perform diversional therapy activities. Indeed, in the translation document Exhibit A10 "Therapy Assistants" can be Level 2. I also accept the respondent's argument, that in the award at Level 4, divisional therapy is given by way of example and is not a mandatory or exclusive activity.

[36] Much of the nomenclature throughout the documentation is somewhat contradictory. I do not accept the union's assertion that the Diversional Therapy Assistants can be classified as Diversional Therapists on the basis of Exhibit A6 - "Diversional Therapy Today".

[37] I have some sympathy that a number of the activities illustrated in the exhibit are performed by the Diversional Therapy Assistants. However, an agreed definition of the function of Diversional Therapist has not been educed. I cannot draw the conclusion from the "Diversional Therapy Today" document, which I have taken as a guide only, or from arguments in evidence that the Diversional Therapy Assistants fulfil all the requirements to be classified in an as yet undefined Diversional Therapists role; there is simply not enough data to determine a position.

[38] The resolution of this matter hinges on two sets of facts. The first to confirm is, the functions a Diversional Therapy Assistant actually performs at the Umina Park facility. The second consideration is, a comparison of the responsibility and initiative exercised by the Diversional Therapy Assistant compared with those exercised by the Extended Care Assistant and the Senior Extended Care Assistant.

[39] From evidence given by both parties it is clear the Diversional Therapy Assistants at Umina Park take more responsibility and act much more independently than their colleagues in the other two establishments. Exhibit A8, which is a management document, clearly illustrates that which is expected of the Diversional Therapy Assistant.

[40] By nature of the business at Umina Park, the Coordinator is mainly occupied managing the Day Centre interfacing with the Diversional Therapy Assistants at the beginning and end of their shift and occasionally through their working day. The Coordinator is responsible for the quality assurance and regulatory aspects of the resident's individual diversional therapy care plans. The Coordinator is also responsible for compilation of the overall monthly Leisure, Interest and Activities Program and the monthly newsletter.

[41] I find the Diversional Therapy Assistants are responsible for: interviewing new residents; compiling individual diversional therapy care plans; monitoring the residents and noting changes; modifying the diversional therapy care plans as required; developing and implementing diversional therapy activities, including assembling required materials; imputing creative elements to the monthly program; and, in an informal way, supervising volunteers who work with them. The responsibility and initiative required of the Diversional Therapy Assistants at Umina Park is significantly greater than that which is required of the Diversional Therapy Assistants at the other two facilities.

[42] I turn now to the degree of responsibility and initiative required of the Diversional Therapy Assistants.

[43] From evidence educed from both parties, it was common ground the attributes required are equivalent to those of an Extended Care Assistant.

[44] The Diversional Therapy Coordinator at the three facilities has a major element of their role devoted to administration. This is more so at Umina Park, by nature of the size of the facility and the Coordinator's responsibility for the Day Centre. A greater responsibility is placed on the Umina Park Diversional Therapy Assistants to take on diversional therapy functions.

[45] The distinction between Levels 3 and 4 is not clearly evinced in the award.

[46] I find the Diversional Therapist Assistants at Umina Park, in the main, to be operating at Level 4. I so find.

ORDER

I hereby order that Mrs Kossler, a Diversional Therapy Assistant at Umina Park, be classified at Level 4 of the Nursing Homes Award.

With respect to an operative date, I will reconvene the Commission to hear arguments from both parties. A Notice of Hearing will issue to the parties in due course.

James P McAlpine
COMMISSIONER

Appearances:
Mr M Vizard for the Health Services Union of Australia, Tasmania No. 1 Branch
Mr M Watson, Tasmanian Chamber of Commerce and Industry Limited, for The Manor Nursing Home (Umina Park Residential and Community Care Facility, Burnie)

Date and place of hearing:
2005
June 3
Launceston

2006
January 11
Ulverstone