IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 26 September 1986 the Commission as currently constituted released a decision in T.10 of 1985 granting increases in salaries to all "public sector" nurses.

Applications to vary the Hospitals Award by the same percentage increases granted to public sector nurses, were subsequently lodged with the Registrar by the Royal Australian Nursing Federation (Tasmanian Branch) (R.A.N.F.) and the Hospital Employees' Federation of Australia (Tasmania No. 1 Branch) (H.E.F. No. 1). The R.A.N.F. also sought to vary the Welfare and Voluntary Agencies Award in the same manner.

Applications to vary the same awards lodged by the Hospital Employees' Federation of Australia (Tasmania No. 2 Branch) (H.E.F. No. 2) sought increases in salaries for classifications up to Registered Nurse level of 15% and 23% for all classifications of Nurse in Charge and above.

All five applications were joined for hearing purposes at the outset of proceedings on 27 October 1986.

The H.E.F. No. 2 sought and was granted leave to amend its applications to seek, the same percentage increases for nursing staff covered by the subject awards as had been granted in T.10 of 1985.

The Hospitals Award amongst other things provides salary rates for nursing staff employed in private hospitals, aged persons' establishments and blood bank services.

The Welfare and Voluntary Agencies Award contains nursing classifications in Division B which covers employees of homes for handicapped persons.

Mr. Holden appearing for H.E.F. No. 2 advised the Commission that agreement had been reached between the parties on all substantive matters. At page 7 of the transcript of proceedings he is recorded as follows:

"Mr. Holden: The discussions between the parties have proved very fruitful, and in fact all substantive matters have been agreed.

Firstly, it is agreed that the claim can be processed under Principle 4 of the Commission's Wage Fixation Principles.

Secondly, the datum points during which work changes will be taken into consideration have been agreed.

Thirdly, the percentage increases which should apply to all classifications have been agreed.

And fourthly, the operative date; whilst the method of fixing the operative date has been agreed, we have not agreed on a specific date."

He further advised the Commission that agreement had been reached to delete from Section 1 of Part 1 of the Hospitals Award, classification 2 - Student Nurse (Midwifery) and classification 12 c Midwifery Nurse (Registered).

In speaking generally to the applications Mr. Holden stated:

"Mr. Holden: As has already been stated, the increases sought would, if granted, bring nursing classifications in the awards under consideration to the same level of salaries which apply in the Nurses (Public Hospitals) Award.

If granted, the outcome of the applications would be to restore the historical and traditional situation which has applied in respect of wage rates for nurses employed in Tasmania, irrespective of whether they have worked in the public or private sector.

It is my understanding that that is also the general situation which applies throughout Australia."

(transcript page 4)

Mr. Holden submitted that 75 to 80 per cent of nurses in Tasmania work in the public sector and had received the benefit of the Commission's decision in T.10 of 1985. All that was required was for the Commission to satisfy itself that similar changes had occurred in "private sector" nursing, thus allowing the granting of the same increases. It was his view that such a decision could not be against the public interest as envisaged by the Industrial Relations Act 1984 (the Act).

He further submitted that there was no suggestion from the Tasmanian Chamber of Industries (T.C.I.) that the granting of the applications would have a detrimental effect on the economy of the state or employment generally. These are major public interest considerations in the context of the Act.

Ms. Fox appearing for the R.A.N.F. also sought amendment of the Hospitals Award by the deletion of the classification "Student Nurse (Midwifery)" and the classification "Midwifery Nurse (Registered)". She also sought a change in title for all classifications containing a reference to "Matron": "Matron" wherever appearing to be replaced with the words "Director of Nursing", "Deputy Matron" to be replaced by "Deputy Director of Nursing" and "Assistant Matron" to be replaced by "Assistant Director of Nursing".

As in the public sector matter Ms. Fox accepted the responsibility and, we might add, the onerous task of proving change such as would warrant the granting of the applications.

To that end inspections were held at St. John's Hospital, South Hobart and the Lillian Martin Home, Warrane. Evidence was educed from three employees, one from Lillian Martin Home and two from St. John's Hospital. Nineteen (19) statutory declarations accompanied by statements were presented as exhibits, each statement detailing changes that had occurred during the relevant period for the particular employee concerned.

In the above manner evidence was produced covering all nursing classifications contained in the awards with the exception of the Senior or Charge, Registered Auxiliary Nurse.

In its decision in T.10 of 1985 the Commission refrained from increasing the salary levels for Senior or Charge, Registered Auxiliary Nurse on the basis that no evidence had been produced going to work value changes appropriate to that classification. The parties to that matter were directed to confer on the future of the classification within the public sector awards.

Mr. Linnell appearing for the H.E.F. No. 1 in addition to supporting the submissions of the R.A.N.F. and the H.E.F. No. 2 going to the merit of the applications, submitted:

"Mr. Linnell: The Commission's decision in T.10 of 1985, on page 26, directed the parties to confer with a view to determine one way or another the future status of this classification and then lodge an application seeking the implementation of their, the parties decision.

Negotiations have commenced on this and other issues as directed by the Commission, but to date this particular item has not been resolved. Its resolution may effect our approach to this classification in the Hospitals and the Welfare and Voluntary Agencies Award, so we would therefore ask the Commission to treat the classification of Senior or Charge Auxiliary Nurse in the Hospitals and part B of the Welfare and Voluntary Agencies Award in a similar manner to T.10 of 1985."

(transcript pages 262/3)

It is not our intention to canvass the changes in the nature of the work, the skills, responsibilities and conditions under which the work is performed as detailed by Ms. Fox. Suffice it to say Ms. Fox, in considerable detail, analysed the evidence, the statements regarding change and made reference, as was appropriate, to the inspections to support her applications.

She in turn dealt with change as it affected nurses employed under the Hospitals Award in the following classifications: Registered Nurse, Nurse in Charge, Registered Auxiliary Nurse, Registered Mothercraft Nurse, Tutor Nurse or Clinical Instructor, Student Nurse and finally a group, collectively, of Nurse Supervisor, Assistant Matron, Deputy Matron and Matron.

In a similar manner changes affecting nursing classifications contained in the Welfare and Voluntary Agencies Award were highlighted and analysed with conclusions drawn as was appropriate.

In analysing the Wage Fixation Principles and in particular the requirements of Principle 4 - Work Value Changes, Ms. Fox submitted that for all classifications changes have resulted in a significant increase in their work value.

She maintained, the range and level of complexity of skills has increased. Increased responsibility emanating from fundamental changes in the nature of nursing practice has occurred. In some cases added responsibility has resulted from the adoption of totally new functions that were previously the domain of other health professionals.

It was her submission that a nett expansion of the knowledge base had occurred, this being an important part of the successful exercise of new skills and assumption of new responsibilities.

It was conceded by the R.A.N.F. that in the context of Principle 4 the nett addition to work requirements for the various classifications was different and this was reflected by the various percentage increases sought by the applications. However, changes affected all nurses and it was therefore appropriate to apply increases to current classifications. Consequently the awarding of allowances or the creation of new classifications was not appropriate.

It was further submitted that if changes were accepted as having satisfied the requirements of Principle 4, in considering paragraph (d) of that Principle the Commission could have regard for a number of decisions but should, particularly, have regard for the salary rates resulting from our decision in T.10 of 1985.

In addressing the public interest provisions of the Act Ms. Fox submitted:

- it is in the public interest to grant an these applications are consistent with those Principles;

- the special circumstances of this case ensure that there will be no flow on from a decision which increases salary rates in the Hospitals, and Welfare and Voluntary Agencies Awards to the same levels as now apply in public sector nursing awards;

- isolation of the increases is ensured by the existence of an established nexus between rates for nurses in public sector and private sector awards in Tasmania;

- statements by the Commission in its decision in T.10 of 1985 confirm the isolation of any decision granting increased salaries;

- there will be no adverse effect on the economy of the state if increases as claimed are granted;

- a decision not to grant the applications might well have an adverse effect on the economic position of the private health services in Tasmania;

- lesser rates for nurses employed in the private sector would lead to an exodus to the public sector, a situation certainly not in the public interest;

- there is agreement in this matter going to quantum of increase and date of operation;

- it is desirable in the interests of harmonious industrial relations, in this essential service industry, that the applications be granted.

Mr. Fitzgerald appearing for the T.C.I. in this matter, on behalf of employers, indicated his consent to the applications and submitted the date of operation of any increases granted should be the date of the Commission's decision.

In respect to the merit of the claims he submitted:

"Mr. Fitzgerald: In respect to the claims before this Bench, we concede that the extent of the evidence has not been as exhaustive as that presented in the public sector, but nevertheless, we would submit that it is sufficient to satisfy the claims before this Bench.

The inspection processes were indeed limited and there were a number of other forms of evidence, including statutory declarations, which employers supported in the interest of expediting this matter. Each of those declarations we had vetted by my principals, and in every case there was complete agreement in respect of the matters contained in those declarations. As indeed there was in respect of the evidence presented before this Commission in oral form.

It is my submission that the evidence supports increases for nurses employed in the private sector as per the claim, in line with the various classifications as awarded by this Commission in matter T.10 of 1985."

(transcript pages 265/6)

In identifying changes accepted by employers Mr. Fitzgerald listed the main areas as:

- the introduction of the nursing process;

- the introduction of new equipment and procedures;

- the introduction of new isolation nursing techniques;

- nurses performing functions previously the domain of medical practitioners;

- new methods of drug administration and intravenous therapy;

- added responsibility resulting from increased patient turnover;

- increased patient and family counselling.

Mr. Fitzgerald conceded that the degree of change in the introduction of new technology in the private sector has not been as great as in the public sector. However, the relative importance of the change in the private sector has been no less significant.

He submitted that the evidence before the Commission satisfied the strict test imposed by Principle 4.

In addressing the question of public interest Mr. Fitzgerald advised that the cost of granting the claims would be approximately $2.9 million. He conceded that this was a significant cost, however, when viewed against the need to maintain high standards of health care it was acceptable and, he submitted, within the parameters of the criteria imposed by the Act. Conversely Mr. Fitzgerald maintained that to allow a significant differential to continue between nursing rates of pay in the private and public sectors would not be in the public interest.

We have given careful consideration to the submissions and evidence presented in this matter. Further contemplation of the transcript confirms our earlier concern about some aspects of this case. Particularly with regard to the nursing homes we have reservations that change, sufficient to warrant the Commission endorsing the agreement of the parties, has occurred.

Considerable debate was entered into during the proceedings between members of the Bench and advocates on a comparison of change in the private sector versus the public sector. So much so that in final addresses some emphasis was placed by advocates on satisfying the Commission on this aspect.

The parties generally submitted that the Commission should measure change during the relevant period in the private sector and make its assessment on that basis alone. In their submission the relative change in the private sector had been as great as in the public sector therefore warranting the same increases in rates.

Whilst we understand this submission, Principle 4(d) contemplates further comparisons, where appropriate, in assisting the Commission in making an assessment as to how that change should be measured in money terms. Having regard for the history of the determination of nursing rates in the public and private sectors, it cannot be sustained that such comparisons are not appropriate in this case.

In any case our concern goes to the extent of change in some areas of employment and whether or not that change warrants the granting of the increases claimed.

While it was conceded that comparative wage justice arguments are not appropriate or allowed by the Wage Fixation Principles, considerable emphasis was placed by the parties on the historical nexus between private sector and public sector nursing rates. We of course cannot have regard for "comparative wage" arguments. However, we recognise that there are substantial public interest considerations involved in the history of nursing rates of pay.

One option open to the Commission in this matter is to refer back to the parties any part or section of the applications about which we have reservations. This would allow, at a later date, further submissions and evidence to be presented to address our concern.

Ultimately however, we have decided against this course of action.

Having regard for all of the appropriate considerations in this matter we have decided to grant the applications.

As requested by the parties classification 2 - Student Nurse (Midwifery) and classification 12 q Midwifery Nurse (Registered) will be deleted from Section 1 of Part 1 of the Hospitals Award.

Likewise the request of H.E.F. No. 1 to refer further consideration of the future of the classification Senior or Charge Auxiliary Nurse back to the parties is granted. As in the public sector any conclusions reached by the parties should be implemented through a fresh application to vary the awards .

In the absence of any objection from Mr. Fitzgerald and in the interests of uniformity, any reference to Matron in the Hospitals Award will be changed as requested by the R.A.N.F.

The date of operation of the award variations required by this decision will be from the first pay period commencing on or after 28 November 1986.

Orders reflecting those changes are available on request from the Registry.