T3926 and T3987
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Confederation of Industries Health Services Union of Australia, Tasmania No. 1 Branch NURSING HOMES AWARD
Wage Rates - Conditions of employment - State Wage Case November 1989 - Structural Efficiency Principle - Annual Leave - Holidays with Pay - Part-timers - Payment for Period of Leave - Removal of Cup Day Holiday REASONS FOR DECISION These matters arose out of applications by the Tasmanian Confederation of Industries, as it was known at the time, now the Tasmanian Chamber of Commerce and Industry Limited (the TCCI), and the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA), to make a new award for the nursing homes industry in accordance with the Structural Efficiency Principle. In his decision on these applications1, Commissioner Watling dealt with all matters other than those which the parties considered should be dealt with by a Full Bench of the Commission. The remaining matters, for convenience, are referred to as: 1. Annual Leave - Holidays with Pay - Part-timers - Clause 11(c), 2. Annual Leave - Payment for Period of Leave - Clause 11(g), and 3. Removal of Cup Day (half day) Holiday - Clause 23. The pertinent provisions of the award are: Clause 11 - Annual Leave - paragraph (c), Holidays with Pay:
and paragraph (g) - Payment for Period of Leave: "(g) Payment for Period of Leave Each employee before going on leave shall be paid the amount of wages he/she would have received in respect of the ordinary time which he/she would have worked had the employee not been on leave during the relevant period and no deduction shall be made for board and lodging. Payment shall be made not later than 12.00 noon on the last day of work prior to going on leave. Payment calculated in accordance with the provisions of this clause should be made for the full weeks of leave taken at the time, unless otherwise specified by the employee." and Clause 23, "Holidays with Pay":
The Minister administering the Tasmanian State Service Act was granted leave to intervene in the proceedings. The "possible nexus" and interaction which was said to exist between the Nursing Homes Award and the Community and Health Services (Public Sector) Award was debated. The TCCI expressed concern that despite an earlier understanding with the HSUA, the union now appeared to be trying to re-establish whatever linkage had previously existed between the public sector award and the Nursing Homes Award which was derived from the old Hospitals Award. The HSUA clarified its position by submitting that it had not intended to convey the impression that there was or should be a nexus between the two awards. The Minister's representative conceded that whatever nexus might have existed previously in the industry had disappeared with the making of the Nursing Homes Award. A view with which we concur. In addressing the application by the TCCI, Mr Targett submitted that the creation of the Nursing Homes Award had been necessary to reflect more accurately the difference between the operations of hospitals and nursing homes. As an interim measure to ease the transition to the new Nursing Homes Award, he said, the wage rates and conditions of employment of the Hospitals Award had been transferred from that award to the Nursing Homes Award. The matters now before the Commission were matters which required arbitration to conclude the initial work of award restructuring which had been envisaged for this industry. Mr Targett requested the Commission to vary Clause 11 (c) (iii) and delete sub-paragraph (iv) of that clause to provide that part-time employees, whether on a rotating roster or non-rotating roster, should receive the same entitlements in relation to annual leave and holidays with pay. That is, that all part-time employees should have added to their annual leave one day for each award holiday on which they were rostered to work. Mr Targett said that at present part-time employees working a rotating roster, whether they were rostered to work on an award holiday or not, had an additional day added to their annual leave for that award holiday. Employees working on a non-rotating roster received an additional day only if they were required to work on an award holiday. In support of his proposition, Mr Targett tendered an example of a rotating roster for a hypothetical part-time employee who, during 1994, was rostered to work on 4 award holidays. Such an employee would have added to his or her annual leave entitlement 11-1/2 days including half day Cup Day being the maximum amount of award holidays available. A part-time employee on a non-rotating roster in 1994, working on the same days as the previous example, would have only 4 extra days added to his or her annual leave. That is, one day for each award holiday the employee was rostered to work. The second hypothetical example of a rotating roster for part-time employees in 1994 working different days and with a different combination of nights and afternoons resulted in work on 10 award holidays. As rotating roster employees they would have had all award holidays added (11-1/2 days) to their annual leave. However, an employee on a non-rotating roster involving the same days, but working on afternoons only would receive the 10 additional days in recognition of the holidays worked. A third example was tendered of an employee working Thursdays only on a rotating roster, on either afternoon or night shift, who under the present arrangements would have been entitled to have 11-1/2 days added to annual leave, although only one Thursday was an award holiday. An employee on a non-rotating roster engaged on Thursday each week in 1994 would have worked on the one holiday and would have had one extra day added to annual leave. Mr Targett conceded that the practice of employing staff for one day a week on a rotating roster was not prevalent because of the cost implications, and that there had been a move to the use of non-rotating rosters for that reason. As a consequence the Commission was told, the vast majority of employees in the nursing homes industry was engaged on non-rotating rosters. Notwithstanding that submission, Mr Targett said the employer concern was not so much the cost of the rotating roster vis-a-vis the non-rotating roster, but the inequitable nature of the provision by which employees who work on the same days but on a different type of roster could receive different benefits. Mr Targett said:
Transcript, p.60 However, it was submitted, provisions for rotating and non-rotating rosters should be maintained to ensure that there was agreement between the employer and the employee if a change from a non-rotating to a rotating roster or vice versa was to be effected. In relation to the employees, said to be no more than 50 in the State, who were employed on rotating rosters under the award, Mr Targett made the following observation:
Transcript, p.61 The TCCI submitted that the parties had reached agreement in respect of full-time employees and that the organisation was concerned mainly with part-timers who made up the bulk of the employees in the industry. Mr Targett argued that his proposal was more equitable for employees than the present provisions. He said in relation to the tendered examples:
Transcript, p.78 Later he said that:
Transcript, p.80 In response to a question from the Bench which raised the possibility of pro rata entitlements for part-timers, Mr Targett said:
Transcript, p.78 With regard to the second proposition put forward by the TCCI, that is the payment for the additional leave days, Mr Targett submitted that the rate of pay should be at ordinary time for all employees. His application described these additional days as "holiday leave" and was set out in Exhibits TCCI.9 and TCCI.10 being draft variations to Clauses 23(c)(i) and 11 (g) respectively. Examples were given to show the extent to which payment for these "holiday leave" days varied depending on circumstances. A non-rotating roster employee would receive double time in accordance with Clause 23(c), that is a day's pay at ordinary time for the holiday worked and a day added to annual leave at ordinary time. An employee on a rotating roster working on a week day holiday would receive ordinary time plus a 15% shift loading and a leave day on projected roster, also with 15% shift loading, making a total of 230%. If the "holiday leave" day for a rotating roster employee fell on a Sunday, for example, double time would apply, together with 115% for the day worked, a total of 315%. Mr Targett maintained that an employee should receive only 100% or ordinary time pay for the "holiday leave" day added to annual leave regardless of where it fell. It was not proposed to alter the rate at which the replacement employee would be paid. The TCCI's proposition, he said, would result in 115% of ordinary time for the day worked and 100% for the "holiday leave" day, a total of 215%. In respect of the application to remove the Cup Day (half-day) holiday, Mr Targett informed the Commission that in the private sector only the Child Care and Childrens Services Award, the Hospitals Award and the Nursing Homes Award provided for the half-day Cup Day holiday. He submitted that it was inappropriate to continue to include the holiday in private sector awards. Mr Targett said it was inequitable for only three awards in the private sector to provide for this holiday and also inequitable because of the arrangements now existing between the nursing homes and other industries. Mr Targett said that the Federal Nurses Tasmania (Private Sector) Award provided for the day but that award was being restructured and the employers were seeking to have the holiday deleted. Mr Kleyn, for the HSUA, argued that as a matter of principle part-time shiftworkers should get the same benefits as part-time day workers. But he said part-time day workers and part-time shiftworkers on non-rotating shifts were disadvantaged when compared with full-time employees and part-time workers on rotating shifts because they were entitled to an additional day's leave only if they worked on an award holiday. Further, if a part-time day worker or part-time shiftworker on a non-rotating shift was engaged for part of a day only, the pay for that extra time was at the part-time rate which, Mr Kleyn claimed, was a double disadvantage. Consequently, he argued, all part-time employees should be entitled to the benefits of award holidays on a pro rata basis; to provide otherwise would be to introduce a discriminatory provision into the award, he said. As an example, Mr Kleyn proposed that a part-time shiftworker, whether on rotating or non rotating shift, on .5 of a full-time load would get four weeks annual leave paid for at the rate of .5 of full-time salary and have 11-1/2 days award holidays added to annual leave paid for at that rate. Accordingly Mr Kleyn submitted that Clause 11(c)(iv) should be deleted and 11(c)(iii) amended to remove the distinction between rotating and non-rotating part-time shiftworkers and part-time day workers and for equity reasons to provide all part-time employees, other than those who receive the part-time loading, with the full award holiday entitlements on a pro rata basis. Mr Kleyn submitted that, in practice, it would be possible for an employer to manipulate the days and times worked by a rostered employee to deny them the classification of a rotating roster worker and so deny them the extra entitlements which a rotating roster worker attracted. This was despite the fact that his union had been involved in negotiating, and had agreed with, the definitions relating to rotating and non-rotating rosters. (Transcript, pp.86-91) On the issue of payment for the additional days added to annual leave, Mr Kleyn opposed the TCCI's proposition that payment for the additional days should be at ordinary rates, arguing that it should continue to be based on the projected shift roster which would include shift allowances. He submitted that shiftworkers suffered a number of physical and social disadvantages and had been compensated for those by payment for leave at the same rate as they would receive if they had been at work. The Commission was referred to a variety of research papers reporting on this topic. The material was presented, Mr Kleyn said, to support the claim that there were disabilities associated with shift work and that shiftworkers should not be disadvantaged when conditions of employment were being considered. Whilst he conceded that attitudes to shiftwork were changing, Mr Kleyn argued that shiftworkers generally should continue to be paid the same amount when on leave as they would be paid if they were at work. Mr Kleyn submitted that the employer's application to set payment for the additional days at the ordinary rate was simply a cost cutting exercise. He said it was contrary to the wage fixing principles and would do nothing to improve efficiency or flexibility. Mr Kleyn said that the health industry required working arrangements based on a continuous operation of 24 hours a day, 365 days a year, and that it was important to ensure that the conditions of employment met the needs of all the participants in the industry so that suitably qualified and committed staff who were prepared to work the various shift patterns necessary were attracted to the industry. Consequently he argued that Clause 23, Holidays with Pay, should be varied only to remove any reference to Clause 11, Annual Leave, subclause (c)(iv) which in the union's submission should be deleted. All other provisions should remain, Mr Kleyn said. So far as the application to remove the half day Cup Day holiday was concerned, Mr Kleyn argued that the holiday was still provided for in the major public sector awards, principally the Hospital Employees (Public Hospitals) Award and the General Conditions of Service Award of this Commission, and the Federal Nurses (Public Sector) Award. Mr Kleyn conceded that only employees north of Oatlands get the benefit of a Cup Day holiday although the award still made allowance for it in the south should Cup Day ever again be conducted on a day other than another public holiday. The TCCI opposed the union's proposals arguing in respect of Annual Leave Clause 11(c)(iii) that the extension of pro rata entitlements to all employees would result in an entitlement which would be additional to the existing award provision. Mr Targett said the definitions of rotating and non-rotating rosters had been arrived at by the parties and inserted in the award by consent to cater for the industry's special circumstances. While he would not resile from his initial observation that a pro rata recognition of award holidays for part-time employees would be the most equitable approach to the problem, Mr Targett said the system proposed by the TCCI was, in his opinion, equitable when comparing part-time rostered employees with part-time day workers and much simpler than the system put forward by the HSUA. Mr Targett submitted that the TCCI proposal was not a cost-cutting exercise. He said the making of the Nursing Homes Award had envisaged thorough negotiations leading to a consent phase and an arbitration phase. Further, Commissioner Watling had dealt with the matters which it had been agreed should be dealt with by a Commissioner sitting alone, and it had been planned that the remaining matters were to be dealt with by a Full Bench. He said they were not isolated matters but were a part of what had been agreed should be arbitrated in completing an overall package for the making of the new award. FINDING We preface our finding on these three claims by confirming that when the award was initially made it was agreed between the parties that, as an interim measure, the wage rates and conditions of employment described in the Hospitals Award for employees in nursing homes would be transferred to the new Nursing Homes Award. This was acknowledged to be the "starting point" upon which to consider the Special Case application and to complete a review of wage rates and conditions of employment in accordance with the Structural Efficiency Principle to cater for the needs of the new industry-specific award. We make the further observation that at that time any past nexus with the Hospitals Award was extinguished and our review of these conditions of employment is based on the understanding of the parties that the award was to be restructured in accordance with the Structural Efficiency Principle. So in a sense we are, for the first time, determining whether the three issues in question should be included in the Nursing Homes Award. With the foregoing in mind we turn now to the matters before us. As to the first part of the TCCI's claim, we consider there is a need to vary the award to ensure that part-time employees are more fairly and more equitably treated in relation to additional leave in respect of award holidays. The current provision which allows some part-time employees to avail themselves of more award holidays than other part-time employees simply because they are engaged on a rotating roster instead of a non-rotating roster cannot, in our view, be substantiated or allowed to continue. We consider the argument advanced by the HSUA for all part-time employees to be provided with award holidays on a pro rata basis, although supported with reservations by the TCCI, is unsustainable in the absence of an appropriate formula and we agree with the TCCI that such an arrangement would be extremely difficult and cumbersome to operate. Accordingly we have formed the view that the most appropriate way in which to overcome the inequity inherent in this issue is to provide for all part-time employees, other than those in receipt of the part-time loading, to be entitled to "holiday leave" only in respect of those award holidays on which they are required to work. This will mean that rotating and non-rotating rostered part-time employees as well as non-rostered part-time employees will be treated similarly. Full-time employees, whether rostered or non rostered, will continue to receive all award holidays applicable to their regions. The parties are reminded that in accordance with the award any shift from a non-rotating roster to a rotating roster requires the agreement of the majority of the employees affected in the particular nursing home. The TCCI's second claim that payment for the additional days added to annual leave should be at ordinary time only for all employees and the HSUA's counter claim that all additional days' leave in respect of award holidays, whether worked or not, should be paid as if part of the employee's projected roster are rejected. We have decided that payment for these "holiday leave" additional days should be the same regardless of whether the employee is full time or part time. More precisely, payment for these days in all circumstances shall be at the rate of ordinary time plus a 15% loading. Saturday or Sunday penalty rates shall not apply to these "holiday leave" days. We have adopted the expression "holiday leave" as suggested by the TCCI, to demonstrate more clearly that these particular days are not to be construed as annual leave. We have decided in favour of the third claim by the TCCI, that is that the Cup Day holiday provision should not be included in this award. The Cup Day holiday drifted into two private sector awards of the Commission, and into this award as previously explained, with the consent of the parties, starting with the old Hospitals Award which provided for both public and private hospitals. Hospitals had derived many of their employment conditions from the public sector. The public sector generally speaking was entitled, by law, to holidays proclaimed under the Bank Holidays Act 1919, a condition which flowed to the Hospitals Award and which was subsequently adopted, by consent, in the Child Care and Childrens Services Award. It should be noted that the consent of the parties to include the Cup Day holiday in the Hospitals Award was gained prior to the establishment of this Commission and that this is the first occasion the Commission has been required to arbitrate the issue. Having carefully considered the material and circumstances in this matter we have formed the view that the extension of the Cup Day award holiday into this private sector award cannot be substantiated. The nursing homes industry has been identified by all the parties as a specific and discrete area deserving special consideration. That has been acknowledged in the making of this new award and we cannot sanction the proposition that the holiday should be transported into this award simply because it is provided for in the hospitals area. Accordingly we determine that all references to Cup Day holiday should be deleted from Clause 23 - Holidays With Pay. The parties are directed to consult for the purpose of preparing a draft order to be presented to the Commission by 1 September 1995. The operative date of the order will be the first full pay period to commence on or after 1 October 1995. In reaching our conclusions on these matters we noted the cumbersome and confusing construction of these two award clauses, Clause 11 and Clause 23. In particular the inclusion of the method of payment for holiday leave in the annual leave clause is inappropriate. Accordingly we recommend the parties endeavour to redraft the clauses in a simpler form and make, if necessary, a fresh application to vary the award accordingly.
Appearances: Dates and Place of Hearing:
|